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The UK and UPC: is the UK trying to have its cake and eat it?

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GB+EU flagIs the UK serious about ratifying the UPC Agreement?

Last week the UK announced at an EU Competitiveness Council meeting that it was proceeding with preparations to ratify the Unified Patent Court Agreement (UPCA). This announcement was greeted with some surprise but seemed to be generally viewed as “a good thing”: the unitary patent system could get back on track, the UK and Germany could ratify the agreement and we might see the first unitary patents rolling off the production line some time in the back half of 2017.

There was, however, some cynicism expressed online with some commentators pointing out that the official announcement is, when you really look at it, pretty light on actual detail1.

Now, I’m not one to shy away from a good healthy dose of cynicism but I thought the announcement was actually heralding the restarting of the ratification process. However, I’ve recently heard some background to the announcement which has made me wonder – “Is the UK trying to have its cake and eat it?”

During a CIPA meeting for Marketing people last week a story was told about the reasons behind the UK’s announcement.

Contrary to suggestions from Margot Fröhlinger at last week’s IP Summit in Brussels,  the UK didn’t press ahead because industry and NGOs had raised the profile of the UPC (though this was almost certainly useful).

Instead, the UK had apparently got wind some time ago that one country (or a number of countries) was (were) planning to use the recent EU Competitiveness Council meeting to start a process of removing the UK from the unitary patent system (so that the rest of them could get on with things).

Faced with this possibility a decision was taken from high up in government (Number 10 probably, the PM possibly) that we should go ahead and announce we were continuing. The official line being that it was better to be “in and trying to remain in” rather than “out, trying to get in”.

It is noted at this juncture that the next competitiveness council meetings are scheduled for the end of February 2017 and the end of May 2017.

And now, speculation time…

The impression I got from the CIPA Marketing meeting was that the UK would not have announced anything last Monday if all other things had been equal. Rather, the announcement came as a way of heading off the potential “push” that the UK was going to receive to leave the unitary patent system.

I’m now therefore wondering if the announcement was made knowing that the next Competitiveness Council meeting is too soon for the other unitary patent member states to expect anything to happen from the UK on ratification and the following meeting is after the Article 50 notification is due.

This in turn makes me wonder if the UK is not serious about UPCA ratification other than as a bargaining chip/tactic during the Brexit talks. Once May 2017 comes round various countries around Europe will be deep in their own elections (or the lead in to their elections) and less in a position to agree how to move things forward if the UK is still dragging its feet.

Time will tell I guess whether the UK is actually serious about moving the UPC along. I’ve been unable to ascertain exactly what steps remain for the UK to ratify the UPC Agreement but we do still need to push through a Statutory Instrument on Privileges and Immunities. If that doesn’t materialise any time soon then it may suggest that something’s up.

As to why the view from the IP Summit was so positive then I can only assume that this was either deliberate spin or a misreading of the UK’s intentions.

Some have wondered why the UPC news didn’t make a bigger splash in the mainstream press (since it does imply that we’ll accept, over patent matters at least, the jurisdiction of the CJEU ). One possible reason is the appearance of the photograph of the “Have cake and eat it” memo. This appeared on the same day as the UPC announcement and swamped the few stories that had appeared on the UPC2.

Incidentally, the “accidental” leaking of the “Have cake” memo sounds like a plot straight out of The Thick Of It and therefore, I would venture, probably means it was anything but accidental. It’s a leap too far to suggest it was deliberately leaked to cover up the UPC news (patents are way down the agenda) but that seems to have been the effect nevertheless.

Mark Richardson 6 December 2016

Footnote:

1see for example the following section of the announcement [emphasis added]: “the UK will continue with preparations for ratification over the coming months. It will be working with the Preparatory Committee to bring the Unified Patent Court (UPC) into operation as soon as possible“. Not exactly a comprehensive timetable.

2 see the articles in: The Telegraph; the FT; Ars Technica for example


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