UPC update - clarification of UK non involvement sought from new IP Minister

We recently reported that the UK is no longer intending to participate in the EU’s Unified Patent Court (UPC) and Unitary Patent (UP) system, due to the irreconcilable differences between the UK and EU as to the role of the Court of Justice of the EU (CJEU) and EU law.  Although the UK government has not made an official announcement, it was reported in the Law Society Gazette in an article entitled 'Downing St deals death blow to UK role in euro patent court' that a spokesperson for the PM had said: 'The UK will not be seeking involvement' in the UPC and the associated UP'.

On 10 March 2020, the House of Lords European Justice Sub-Committee met to examine the impact that the UK's non participation in the UPC and UP would have on UK businesses, UK inventors and the UK Courts.  Julia Florence, Past President of Charted Institute of Patent Attorneys (CIPA) and Daniel Alexander QC, highly regarded IP barrister and Chairman of Intellectual Property Bar Association, gave evidence to the Committee.  The recording of the meeting is here.

Not surprisingly, most of the discussion centred on the impact that EU law would have in the UPC.  Mr Alexander explained that there were, broadly speaking, four areas where EU law had an impact on UK patent law: (i) supplementary protection certificates (SPCs) for certain pharmaceutical products (although these are a narrow category of inventions and are themselves a complex creation of EU law); (ii) remedies under the EU Enforcement Directive (the CJEU has not had much to say so far and in any event the directive generally adopted UK law); (iii) stem cell research (again a category of inventions and created at an EU level because of restrictions on patentability of 'life'); and (iv) competition law (as it relates to patents).  For the common [or 'garden'] patent kind of case, Mr Alexander emphasised that EU law and the CJEU would have 'no material impact'.  Ms Florence continued that it is only those aspects of EU law which could be referred to the CJEU and not a whole patent case.  

When asked if the comments in the Law Society Gazette were 'the death blow' to the UK 's role in the UPC, Ms Florence responded 'I'd like to say never say never'.  She hoped that if the UK cannot join the UPC system for now, the door would be left open for the possibility that non-EU Member States can participate.  Mr Alexander shared these views and said that the government has made a 'regrettable decision' and that the reason given for it is an 'unjustified one'.

Since hearing this evidence, Chair, Lord Morris of Aberavon, has written to the new IP Minister, Amanda Solloway MP (Derby North), to 'confirm recent media reports that the “UK will not be seeking involvement” in the UPC and the associated unitary patent?'  A copy of the letter is here.

We now eagerly await Ms Solloway's response.