Written by Daniel A. Kamkar and Eric Furman, Ph.D.

After the United Kingdom voted to leave the European Union, dubbed “Brexit” by the press, many have called into question whether the UK would ratify the Unitary Patent System. The Unitary Patent System will create a Unitary Patent and a Unitary Patent Court (UPC) system to enforce patents across many European states. Brexit was especially troublesome for those in the biotechnology field because the UPC was planning to hold many of its “human necessities” patent cases in its London based court. Following Brexit, there have been several new developments with regard to the UPC, but these events have not eased the uncertainty felt in the biotechnology field.

One such development is that the UK government, which is one of the 13 member states that necessarily must adopt the UPC agreement for it to take force, recently announced that it would in fact ratify the Agreement. This is good news for those interested in the time and cost savings associated with filing and enforcing a Unitary Patent. A single Unitary Patent will streamline the expansive filing process normally associated with many biotechnology and pharmaceutical patent applications. Additionally, litigation at a single system of courts will consolidate patent enforcement thereby streamlining proceedings, reducing costs, and facilitating the ability for global patentees to take consistent positions when defending or asserting their patents. Accordingly, the UK’s recent announcement and the opening of the UPC, which may take place as soon as December 2017, may benefit small to mid-size companies with limited resources.

However, news of the UK’s announcement to ratify the UPC Agreement is tempered by the UK Prime Minster Theresa May’s speech calling for an end to the EU’s and the European Court of Justice’s (ECJ) jurisdiction over the UK. Theresa May’s comments are in conflict with the UK’s announcement to ratify the agreement because under the Unitary Patent System, ECJ decisions will be binding on the UPC, and in turn, the ECJ will retain jurisdiction over the UK through these patent courts. Although this contradiction may be resolved through negotiations between the UK and the EU, it is feared that such deal making may only further delay the institution of the Unitary Patent System.

After many set-backs in bringing a Unitary Patent System to Europe and the latest launch date slated for the end of 2017, the biotechnology industry may have to continue to hold its breath for the Unitary Patent and the determination of the location of the UPC’s biotechnology arm.

For more information on the Unitary Patent, please see our previous article at https://www.knobbe.com/news/2016/09/continental-patents-la-carte-or-prix-fixe-biotechnology-considerations-unitary-patent.