Legal opinion on the UK's participation in the UPC after Brexit

Counsel’s opinion supports CIPA’s view that the UK can join the Unified Patent Court and can remain part of the UPC system after the UK leaves the European Union.

CIPA, the IP Federation and the Intellectual Property Lawyers Association instructed Richard Gordon QC of Brick Court Chambers, a recognised expert in Constitutional and EU Law, to advise on legal questions relating to the effect of Brexit on the UK’s participation in the Unitary Patent and the Unified Patent Court.

His opinion makes clear that the major obstacles to the UK joining and remaining part of the UPC are political not legal.

CIPA President Tony Rollins said: “There is now a legal path to securing our continued participation in the Unified Patent Court and Unitary Patent following Brexit, although this will take some time.

“We are pleased that Counsel’s Opinion supports our position, but more work needs to be done before the UK can ratify the UPC Agreement.”

In summary, it is Counsel’s opinion that:

  • The UK may only continue to participate in the Unitary Patent by entering into a new international agreement with the participating EU Member States
  • It is legally possible for the UK to continue to participate in the UPC after ‘Brexit’ and to host the Life Sciences/Chemistry section of the court, but changes would have to be made to the UPC Agreement
  • The UK’s continued participation would require it to submit to EU law regarding proceedings before the Court. It would also need to sign up to an appropriate jurisdiction and enforcement regime
  • It would only be possible to obtain a pre-emptive opinion from the Court of Justice of the EU on the legality of the UPC Agreement if the Union became a party to the Agreement
  • If the UK ratified the Agreement, without amendment, and subsequently left the EU, the UK division would have to close