Views on the UPC in light of “Brexit”

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

A conference in Paris on 6 July heard views on the future of the UPC from a number of leading figures including UK and French IP organisations, and Alexander Ramsey, chairman of the UPC preparatory committee.

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There was general consensus amongst the panel and audience that there is a desire (at least amongst the IP profession) for the UPC to proceed with the UK as a full participant. It is felt that the legal issues could be resolved, particularly if the UK ratifies the UPC Agreement prior to leaving the EU. However, whether this can be achieved politically is the key question.

A further 3 countries, including the UK and Germany, are required to ratify the Agreement before it can enter force. Each country presents different problems.

In the UK, although the Agreement itself has been agreed by the UK’s Parliament further steps are required to complete the ratification. An argument was proposed that because the UPC is not EU legislation (it is technically an international agreement) its ratification is not affected by the referendum. However, this feels like a legal distinction that will be lost on most people and ratification would likely be perceived as a direct contradiction to the referendum result. Ratification by the UK in the short-term therefore seems unlikely, potentially triggering at least lengthy delays.

Even if the UK did ratify, it is far from clear that Germany would follow suit.

Bringing the system into force without the UK would require renegotiation of the Agreement, and likely a new ratification process, which is also very unlikely to happen in the short term.

The system thus appears to hang in the balance.