Can the UK Stay in the UPC System after Brexit?

Abstract

Just when the European patent community finally expected the Agreement on the Unified Patent Court (UPCA) and the Unitary Patent Regulation (UPR) to enter into force soon, the UK electorate voted in favour of “Brexit”. Among a host of other issues this raises the question of whether the UK can remain a contracting state of the UPCA after the country’s withdrawal from the UK and whether the effect of the UPR can be extended to the UK. We argue that both questions should be answered in the affirmative. Once the UK has ratified the UPCA, it will not have to accept either the supremacy of EU law or the possibility of preliminary references from the UPC to the CJEU by separate agreement.