The Unified Patent Court and Brexit

Here’s another topic to cause a possible post-Brexit headache.

The Unified Patent Court will have exclusive competence for European patents and those patents with unitary effect. The UK is a contracting party, and fought hard to have the court placed in its jurisdiction. The eventual outcome on the venue of the court is that it is split between three countries, with Paris, Munich and London winning parts of the central division. You can see the UK section’s gleaming new offices in Aldgate Tower, London E1 here.

The reason for setting up the new system is to help, in particular, individuals and small businesses to apply for a patent with uniform protection and equal effect in all participating member states through one single request. The traditional system requires the patent holder to validate a patent in each member state, where different validation requirements apply. In several, for instance, the patent holder must file a translation into the official language. There is also under the traditional system a publication fee and renewal fees in every member state where the patent is valid.

So what will happen to our relationship with the patent court on a possible future Brexit? Only member states can sign up to the new system, and so we will have to say goodbye to it – and presumably goodbye to those lovely offices in Aldgate Tower. The court itself will have to find a new preparatory secretariat, which is currently run out of the UK Intellectual Property Office.

Good luck to British inventors and innovators in the future. You will have a harder, more expensive path to protection than your EU counterparts… unless of course you believe that the protection of UK patents will be one of those issues – along with trade deals, data protection, competition protection against the internet giants, and others, where the remaining member states will be rushing to offer us an even better deal once we leave the EU.

I am sorry for the digression, since that is not actually the aspect of the new court I wanted to write about. Rather, it is this. The court is still in the process of being established, and I have written before about some of the issues arising, such as who can act as a representative. Now its preparatory committee is about to approve a code of conduct for such representatives. The work is far-advanced.

At its last meeting in April: ‘The committee also discussed a draft code of conduct for practitioners developed by the European Patent Lawyers Association, European Patent Litigators Association, and the epi. The draft code of conduct is expected to be agreed at the next meeting of the committee at the end of May.’End of May! And it has not yet been seen in public. I am in favour of the new system, but that does not mean valid complaints cannot be made about its transitional procedures.

The Council of Bars and Law Societies of Europe (CCBE) has now written a letter of protest to the chair of the preparatory committee, which I will summarise and expand upon.

First, the draft code of conduct openly states that the CCBE’s own code of conduct was one of its starting points, and yet the CCBE was never consulted. Next, although EPLAW, EPLIT, and the epi are practitioners’ groups, they are not representative of the regulatory bodies responsible for practitioner conduct. It is a strange way to draw up a code of conduct, particularly because the court’s code deals with how to manage topics such as confidentiality and conflicts of obligations across jurisdictions which have different rules – when this is what the CCBE has been specifically discussing and resolving for more than 50 years through expert regulatory representatives.

The CCBE letter is a provisional response, because it had just learned of the code of conduct’s advanced state, and needs to consider the draft code in detail. Nevertheless, the letter raises important questions about enforcement and sanctions, complaints and appeals, and the conflicting obligations mentioned above. I hope that the approvals process will now be slowed down to accommodate a proper consultation before adoption.

Finally, for those anticipating a judicial career in the new court, Brexit might dash your hopes. At the last preparatory committee meeting in April, it was announced that ‘the recruitment package was agreed. This now means the adverts for judicial appointments can be advertised in May’. That is just in time for the Brexit vote in June. I hope that the deadline for applications will be set for after 23 June, to allow UK candidates to know whether they will be eligible – although of course any true patriot would in any case choose a UK judicial career over a European one.

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs