|Author Cédric Pusney Licence CC BY 2.0 Source Wikimedia Commons|
"Participating in a court that applies EU law and is bound by the CJEU would be inconsistent with the Government’s aims of becoming an independent self-governing nation." (see UK Withdrawal from the UPCA 20 July 2020 Unified Patent Court website).
In other words, the UPCA was thought to be incompatible with "taking back control" and the notion of sovereignty.
Any intervention by the CJEU would have been minimal compared to matters in which Her Majesty's government has agreed to the continued involvement of that Court. First, the agreement by which the UK withdrew from the EU and Euratom provides for disputes over the Northern Ireland Protocol to be resolved by the CJEU as the House of Lords noted in paras 256 to 258 of their Report on the Protocol.
Secondly, s.6 (2) of the European Union (Withdrawal) Act 2018 permits courts and tribunals in the UK to have regard to judgments of the CJEU delivered after 23:00 on 31 Dec 2020 in so far as they may be relevant to any matter before them. In Warner Music UK Ltd and another v TuneIn Inc.  EWCA Civ 441 (26 March 2021) the Court of Appeal decided to follow the CJEU's judgment in C-392/19 VG Bild-Kunst v Stiftung Preußischer Kulturbesitz  EUECJ C-392/19,  WLR(D) 157, EU:C:2021:181, ECLI:EU:C:2021:181 which was delivered months after the expiry of the implementation period provided by art 126 of the withdrawal agreement.
Thirdly, although the case law of the CJEU delivered before 31 Dec 2020 continues to bind British courts and tribunals, the Court of Appeal does have power to depart from that case law on the same basis that the Supreme Court has power to depart from one of its own precedents or of one of the House of Lords in accordance with the Practice Statement (Judicial Precedent)  1 WLR 1234: In TuneIn, the appellant's primary contention was that the Court of Appeal should depart from the entire body of case law of the CJEU on communication to the public, or alternatively, that the Court should depart from Case C-160/15 GS Media BV v Sanoma Media Netherlands BV  WLR(D) 477,  EUECJ C-160/15,  Bus LR 1231, ECLI:EU:C:2016:644, EU:C:2016:644.
The Court of Appeal struck down that argument like a whack-a-mole. Lord Justice Arnold gave no less than 8 reasons why departing from the CJEU's case law would be a bad idea between paras [77[ to  of his judgment. The Master of the Rolls offered two, namely that the CJEU's case law was based on international agreements and there was no immediate .need to change anything. Lady Justice Rose agreed that this was absolutely not a case in which this court should exercise its power to depart from the EU jurisprudence. For those who are interested in the TuneIn appeal, I wrote a case note on the Court of Appeal's judgment in The Appeal: Warner Music UK Ltd and others v Tuneii Inc in NIPC Law on 24 April 2021.
The UPC and the unitary patent would have benefited British industry great which is why they were recommended by both Gowers and Hargreaves. Because of the adversarial system of civil litigation and the rule that costs of litigation are paid by the losing party the United Kingdom (and in particular) England is the most expensive and riskiest jurisdiction in the world in which to enforce an intellectual property right. It is no coincidence that the country of Newton and Berners-Lee which initiated the industrial revolution and which still has some of the strongest research universities in the world trails consistently not just Germany and France in the number of European patent applications but also the Netherlands with a third of its population and Switzerland with one eighth. A heavy price indeed for the chimaera of sovereignty.
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