Over the past 40 years, attempts have been made to establish a supranational court which could adjudicate disputes over the infringement and validity of a European patent in a single set of proceedings and, in parallel, to establish a single patent valid throughout the EU (see box “The European patent”).

In 2009, the European Commission (the Commission) sought an opinion from the European Court of Justice (ECJ) as to the legality of a draft international agreement for a unified patent litigation system (the draft agreement). In March 2011, the ECJ opined that the draft agreement was not compatible with the EU treaties (Opinion 1/09, 8 March 2011; www.practicallaw.com/2-505-7410). This was because the proposed court was taking over jurisdiction from the national courts, but the draft agreement did not impose on the proposed court the full impact that EU law has on the national courts. In particular, although EU law was stated to be paramount, there was no obligation to refer questions to the ECJ, and EU member states had no liability if their courts failed to make references in cases where references were required.

The project eventually proceeded in the form of the Agreement for a Unified Patent Court (UPC Agreement) and a parallel Regulation for a Unitary Patent (1257/2012/EU), which is effective in most, but not all, member states, since Spain and (originally) Italy declined to participate (for background, see feature article “The new unitary patent regime: prepare and protect your portfolio”). However, the UPC Agreement contained provisions specifically covering the issues identified by the ECJ. Non-member states were excluded, since the Commission (which was responsible for the project until Spain and Italy’s withdrawal) had taken the view that the ECJ opinion also decided that non-member states could not participate.

To come into effect, the UPC Agreement must be ratified by at least 13 member states, including the three member states with the largest number of European patents, namely the UK, France and Germany. The establishment of the UPC involves a great deal of work, including preparing rules of procedure, training judges and court staff, creating supporting IT systems including a case management system, and securing premises. Unfortunately, the UPC Agreement provides for the UPC to open only four months after ratification, and in order to get the necessary preparatory work done, a preparatory committee has been working on the project for the last two years.

The UK was due to complete the ratification formalities for the UPC Agreement in Autumn 2016, and it was expected that the UPC would open for business in Spring 2017. The result of the UK Brexit referendum has thrown all this into confusion. In the immediate aftermath of the referendum, it was unclear whether the government wished to proceed to ratify, and whether the UK could continue to participate in, the UPC and unitary patent after Brexit.

There is considerable pressure from the other member states on the government to ratify the UPC Agreement, and a number of leading academics who have been involved in the project published opinions that the UK’s continued participation was indeed possible. The view of UK industry, expressed through the IP Federation (which represents the views of UK industry in policy and practice matters within the EU, the UK and internationally), was to support UK ratification, but only if long-term UK participation in the UPC was secured. To ratify the UPC Agreement and have the UPC open for business, and then to have the UK leave after two years, would be a recipe for confusion and disaster, since the UPC Agreement provides no transitional provisions governing the status of past decisions of the UPC and pending proceedings were a member state to depart.

Against this background, the IP Federation teamed up with the Chartered Institute of Patent Attorneys and a consortium of UK law firms to instruct Richard Gordon QC and Tom Pascoe, counsel specialising in EU and constitutional law, who had no involvement in patent law or the UPC, to give an independent opinion on whether continued UK participation in the UPC was legally possible.

The barristers concluded that, on a proper interpretation, the ECJ’s March 2011 decision was concerned only with ensuring that sufficient safeguards were in place to secure the supremacy of EU law; that is, the primacy of EU law, references to the ECJ, an obligation to comply with ECJ judgments, and compensation if references were not made in the appropriate circumstances (www.simmons-simmons.com/~/media/Files/Corporate/External%20publications%20pdfs/Gordon%20and%20Pascoe%20Advice%20%20UPCA%20344481291.pdf). So long as these safeguards are in place, probably through a separate agreement between the UK and the EU, there is no reason why the UK should not participate in the UPC.

Clearly, the requirement to sign up to EU law raises political issues, but it must be noted that the application of EU law would be restricted to matters within the jurisdiction of the UPC, namely, patent infringement and validity. The other member states are keen for the UK to participate in the UPC, and the political difficulties lie with the government as to whether accepting EU jurisdiction, even in a closely delineated area, is acceptable. The political sensitivities of having an area of UK sovereignty, even if tightly delineated, subject to EU law and the rulings of the ECJ, should not be underestimated.

Nevertheless, this does provide a model whereby one area of UK national life which would benefit from continued participation in the EU can do so without bringing the full ramifications of EU membership across the board. The obvious other areas where similar “islands” of EU engagement could be beneficial are the pharmaceutical regulation system and the European trade mark and design system. Readers with interests in other areas will no doubt identify areas in the worlds of finance and business where continued close engagement with the EU would be desirable if it could similarly be limited. Perhaps islands of “soft Brexit” in a sea of “hard Brexit” might be the way forward.