Brexit impact on UPC project acknowledged by Germany

Out-Law News | 14 Aug 2019 | 9:51 am | 1 min. read

The German government has officially acknowledged that Brexit plays "an important role" in the implementation of the Unified Patent Court (UPC) project.

In a recent letter to members of the Bundestag, Germany's parliament, the Federal Ministry of Justice confirmed that a Europe-wide examination of the implications of the UK's planned withdrawal from EU membership on the proposed UPC reforms has still to be completed, citing factors which it said are yet unknown regarding Brexit as the reason.

The new UPC system, years in the planning but yet to become operational, foresees a Europe-wide court system to ensure that businesses have a streamlined process for enforcing patents through a single court where the patents are within the scope of the UPC – including new unitary patents. The UPC is to include central, regional and local divisional courts across Europe.

An international agreement, the UPC Agreement, was adopted in 2013 by 25 of the 28 EU member states. It provides for the creation of the UPC framework.

For the new UPC system to take effect, at least 13 EU countries, including the three with the most European patents in effect in 2012 – Germany, France and the UK, must pass national legislation to ratify the UPC Agreement. France and the UK have already done this along with 14 other countries, but Germany's ratification process has been held up by an ongoing legal challenge.

As currently worded, the UPC Agreement envisages participation in the UPC system by EU member states only and so there is uncertainty as to whether the UK will be able to participate in the new patent framework after Brexit. The UK is scheduled to exit the EU on 31 October 2019.

Earlier this year, the UK government revealed that it had reached agreement with EU counterparts which would enable the UK to remain as a member of the UPC system during any Brexit implementation period. However, that agreement would not apply should the UK leave the EU without a deal.

The Ministry of Justice's letter, published by the Bundestag and reported on by business news publisher Dow Jones on financial news website finanztreff.de, was issued in response to questions concerning the budget for the UPC and Germany's contribution to its funding. Much of the budget has gone towards the creation of a new IT system for the UPC system, it said. The work on that IT system is "almost complete", the department said.