Assessment of The Continuing Participation of The UK In The UPC Judiciary System After Brexit.

Nowadays, the patent protection in European Union (EU) essentially relies upon the national law of Member States. The EU took more than half-century to fix such territorially limits by way of enhanced cooperation under Article 20 of Treaty on European Union (TEU) to establish the Unified Patent Court (UPC), which is a part of their judicial system. The Agreement on a Unified Patent Court (UPCA) has been ratified by 25 countries, including the United Kingdom (UK), but to enter into force it still needs to be signed by Germany. Hence, there are still many political and legal uncertainties the system will face in the near future, especially the implications and challenges brought by the UK’s withdrawal from the EU (Brexit). According to nature of the UPC which stipulated in the Agreement, this essay will answer the question whether the UK’s further participation in UPC judiciary system would be possible, the sub-question is whether the UK’s continuing participation will enable UPCA incompatible with the Union law.

Firstly, there is a necessity to simply review the creation of the UPC system and identify what are the potential legal implications brought by the Brexit. Secondly, this essay will critique the general argument on whether the UK may still eligible to participate in the UPC after Brexit and identify the missing points. Thirdly, the key feature of the UPC is a ‘court common to Contracting Member States’ enshrined in the Article 21 UPCA, thus the final section of this essay will answer, assuming that the UK continues to remain in the UPC system as a non-EU country, whether the function of ‘court common to Contracting Member States’ of UPC will be altered, which may interfere with the compatibility of UPCA with the EU law.