Appointment of UK judges to the proposed Unified Patent Court suspended

Question

Intellectual Property Law: Why has the appointment of UK judges to the proposed Unified Patent Court recently been suspended?

Answer

The EU is currently in the process of creating a new unified EU patent system with its own court (the Unified Patent Court), via the Unified Patent Court Agreement. The Unified Patent Court created to enforce the new UPC patent would have powers to issue EU-wide remedies to disputes, including injunctions and decisions concerning validity, revocation and infringement. It would operate from a number of branches across EU states. including one which is anticipated to be located in London. However, recently the appointment of UK judges to the court has been suspended. Why is this?
The answer is, simply, Brexit. While the UPC is not strictly an artefact of EU law, Britain leaving the EU has caused serious problems in the implementation of the Agreement. As the Agreement is currently worded, only EU states may participate. It cannot easily be amended to include non-EU states either. The UPC is an ‘enhanced-cooperation’ act created in accordance with Article 329(2) of the Treaty on the European Union, and under Article 20 of the Treaty only participating Member States of the EU can be bound by such acts.
Even if a work-around was found, UK judges would still be unable to sit on the court: the Agreement states that only nationals of EU Member States can sit. Any amendment permitting UK judges to sit would have to ensure that UK judges were obliged to make references to the CJEU on questions of EU law and were still subject to state liability despite no longer being technically subject to EU law, something which is necessary for the UPC court to be legal under EU law. As such, unless some imaginative amendments are implemented, Brexit makes the UK is unlikely to be able to participate in the UPC. This is why the appointment of UK judges to the Unified Patent Court has been suspended.

References

Table of Cases

CJEU Opinion 1/09

Table of Legislation

Unified Patent Agreement

Websites

Wolters Kluwer, ‘Appointment judges Unified Patent Court postponed’, (Kluwer Patent Blog, 20 October 2016) accessed 20 October 2016