Breaking news: UK will not participate in UPC system

The writing was on the wall. Despite warm words from the UPC Preparatory Committee and the European Parliament, it seems that the status of the UK’s participation in the Unitary Patent and Unified Patent Court system has progressed (regressed?) from “in significant doubt” to “not on your nelly”.

For those who perhaps looked at the UK’s continued membership of the UPC system as a small, symbolic consolation in the swamp of Brexit, the dream seems to be over. In truth, the direction of travel has been clear for a long time: even under the May administration, and especially under the Johnson administration, the UK Government has taken an increasingly uncompromising line regarding the jurisdiction of the CJEU after the Brexit transition period. Paragraph 5 of the UK’s negotiating objectives, published today, continues this trend:

“It is a vision of a relationship based on friendly cooperation between sovereign equals, with both parties respecting one another’s legal autonomy and right to manage their own resources as they see fit. Whatever happens, the Government will not negotiate any arrangement in which the UK does not have control of its own laws and political life. That means that we will not agree to any obligations for our laws to be aligned with the EU’s, or for the EU’s institutions, including the Court of Justice, to have any jurisdiction in the UK.“

And, like that, it’s gone. However one interprets Opinion 1/09 of the CJEU, it is pretty clear that the UPC Agreement requires UPC participating states to respect the primary of EU law (Articles 20/24) and the overarching jurisdiction of the CJEU (Article 33) in relation to the UPC system. And, consequently, the UK Government has briefed that it will not seek to remain a part of the UPC system (although we do not expect a formal announcement).

Subject only to a radical policy rethink in the coming months (which seems highly unlikely), sadly, the UK seems to have got off the UPC bus.