Brexit and the Legal Legitimacy of the Unitary Patent Court

At no time in recent history has it been more exciting to be a student of European patent law. Over the past ten years Europe has sought to create and restructure a significant portion of its patent law apparatus, including the introduction of a ‘Unitary Patent’ (‘UP’) that has effect in 17 European Union Member States (and counting), and the creation of a Unitary Patent Court (‘UPC’) that entered into force on 1 June 2023. The compelling policies underlying these dramatic changes are well documented, including enhanced uniformity, cost reductions, and other efficiencies. Indeed, the European patent system is poised to welcome international patent actors with a well-thought-out procedural regime. Yet all good policies must be supported by a legitimate legal foundation. The United Kingdom’s highly publicized and often dramatic departure from the EU has reverberated throughout the European establishment, affecting issues relating to the economy, trade, immigration, labor, and Northern Ireland, to name just some of the most obvious. Perhaps what is not so evident, however, is the adverse legal effect that Brexit has had on the UPC, to such an extent that we are dubious about the court’s legitimacy. Make no mistake, even if we prefer a fully integrated EU solution, we support the creation of UPC and the entire unitary initiative. However, in this paper we argue that it must be done in a manner that is legally principled, which requires an amended and re-ratified Unitary Patent Court Agreement.