SCRIPTed: News and Reflection

The Unified Patent Court and the frustrated promise of IP protection: Investors’ claims in (post-)Brexit Britain

“…42 One of the many hurdles to untangle is that while the UK pushes for 'gaining back' its judicial and 'quasi-legislative' independence from the CJEU 43 (with investors ought to have known about this straightforward policy aim), the UPC accepts the primacy of UE law. 44 Someone suggested to provide respect-for-EU-law safeguards in UK law, confined to IP protection; 45 this shall be deemed unreasonable: nobody in the UK Parliament would support politically so clumsy an exit strategy, and legally-as justified later in this analysis-it is impossible to insulate one field from the exceedingly complex bundle of rights and duties the EU has grown up to embody. The first authoritative admission that a UK-participated UPC is not necessarily practicable came very recently from the new Prime Minister, Boris Johnson.…”

“…Further, one can doubt about the motives of investors choosing the UK for patenting their inventions after the referendum 149 or immediately before, but those who invested in 2013-2015 cannot reasonably be said to have acted mala fide (unless otherwise proven). Second, even those who knew about Brexit could have reasonably seen in the UPC a last-resort relief, alternative to the upcoming withdrawal of both the CJEU 150 and ECtHR protection (since the UK plans on leaving the Strasbourg's court as well 151 ). Third (and as an accessory argument only), it cannot be expected that all investors are equipped with the most sophisticated knowledge on the legal interfaces (read 'intricacies') between international investment law, public international law, EU law, UK law, and so forth: it seems more reasonable to admit that a fortiori in these uncertain times due to Brexit, the UK Government should have adopted more moderate and professional a stance, 152 instead of promising its belonging to an IP protecting environment prior to acquiring certainty on the legal feasibility of such a solution.…”