Brexit Briefing February 2020

Jane Lambert

One of the reasons why I have followed closely the negotiations on British withdrawal from the European Union and the United Kingdon's future relationship with the EU was to discern the likely future of the unitary patent and the Unified Patent Court.  Ever since HM Government signed the Agreement on a Unified Patent Court I have been tracking the progress of its implementation.  Both before and immediately after the referendum, I had expressed the view that the UK's participation in the project was incompatible with its departure from the EU (see Jane Lambert Were we to go - what would Brexit mean for IP 26 Feb 2016 NIPC Law and Jane Lambert What, if anything, can be salvaged from the UPC Agreement? 26 Jan 2018 NIPC Law).  Surprisingly, there were some, including the British government of the day, who took a contrary view (see Jane Lambert One Year to Brexit - Are Rumours of the Death of the Unified Patent Court Agreement Greatly Exaggerated? 29 March 2018). The only way to find out which view was right was to monitor the withdrawal and future relationship negotiations. This blog was, therefore, a spin-off from my tracking of the unitary patent and UPC's implementation.

I am very sorry to report that I have been proved right.   In an email to the IAM, a spokesperson stated:

“I can confirm that the UK will not be seeking involvement in the UP/UPC system. Participating in a court that applies EU law and bound by the CJEU is inconsistent with our aims of becoming an independent self-governing nation.”

As I said in Volte-Face on the Unified Patent Court Agreement. 29 Feb 2020 NIPC News, that objection was as clear on 26 April 2018 when the Foreign Secretary of the day, one Boris Johnson MP, deposited the instrument of ratification as it is now and the argument that the UPC Agreement was an international treaty outside EU law was untenable (see the IPO press release UK ratifies the Unified Patent Court Agreement  26 April 2018).  The decision to withdraw from the UPC Agreement is unlikely to be in the national interest. It will have been taken for political rather than economic reasons. That is the nature of the times in which we live.

The only other significant news is that the European Council has adopted a decision to negotiate a future partnership agreement with the UK (see Jane Lambert Future Relationship Negotiations: The EU sets out its Stall  26 Feb 2020).   Similarly, the Prime Minister has set out the UK's approach to the future relationship negotiations (see Jane Lambert The Future Relationship with the EU The UK’s Approach to Negotiations - An Introduction and Overview 27 Feb 2020). There is a lot of bluster about walking out of the negotiations and adopting an Australia style agreement if things do not go the government's way but can probably be discounted as strong meat for right-wing hacks and party activists.  It may well be that the EU needs access to the UK's market of 65 million but the truth is that British industry needs access to the EU's 450 million so much more,  Moreover, if one actually reads the addendum to the decision and the strategy document the two sides are not all that far apart.

Anyone wishing to discuss this article or any of the matters mentioned in it should call me on +44 (0)20 7404 5252 or send me a message through my contact page.