The introduction of the Unified Patent Court (UPC) is undoubtedly the most significant change to the European patent landscape since the European Patent Convention of 1973. It will have a profound effect on how life sciences companies set about their patent strategies – from filing through exploitation to enforcement.
Leaving aside the inevitable delays to the UPC project, there is a serious risk that Brexit means that the UPC will be diminished in the eyes of one of its major user constituencies, the international life sciences companies. These companies have extensive experience of the alternative to the UPC, the national country-by-country litigation route.
Counter intuitively, Brexit may make the UK a more important patent litigation venue than it would have been as part of the federal UPC system. The UK’s commercial significance means that companies will have to litigate in the UK as well as in Europe (whether in the UPC or in the national courts).
- Brexit has, if anything, shifted the strategic balance. A diminished federal UPC system in Europe without UK participation runs the risk of being seen as less appealing by its potential users, especially the global life sciences and technology companies.
- Brexit may increase the attractiveness of the current national litigation route as an alternative to the UPC for life sciences companies.
- Brexit is likely to increase English patent judges’ willingness to grant pan-European declarations of non-infringement, paving the way for more complex and disruptive patent litigation strategies.