Fears for UK solicitors over patent court rights of audience

The organisation tasked with drafting the rules and procedures of Europe’s Unified Patent Court (UPC) has said it ‘must change’ a provision that allows only EU-based solicitors and barristers to appear before the court.

Currently, according to one of the rules covering the UPC, only lawyers registered to practise before a court in an EU member state are able to litigate. Upon the UK leaving the EU that would prevent UK-based solicitors and barristers acting for clients in the court.

This comes despite the fact that the UK has signalled its intention to ratify the agreement and accommodate a branch of the central division of the court in London’s Aldgate Tower.

Speaking at the Westminster Legal Policy Forum today, Kevin Mooney, chair of the drafting committee for the rules of procedure for the UPC, said work was already being done to ensure that rule was changed.

Mooney, a partner at City firm Simmons & Simmons, said it was essential that the government ensures the UK remains in the regime despite uncertainty surrounding what its position will be after Brexit.

The forum also heard that the court system and its relationship with EU law and the Court of Justice of the EU may yet cause problems in future government negotiations surrounding leaving the EU.

When operational, the UPC will hear disputes relating to unitary patents, a new form of patent protection that will be valid across the EU. The courts will have to abide by EU law and will be answerable to the CJEU.

Despite this, the Intellectual Property Office, and speakers at the forum, stressed that the UPC is ‘not an EU institution’ and instead an international court set up under international law.

Speaking in a personal capacity, Matt McBrien, head of patents at engineering firm BAE Systems, said the UK could find itself in a position where a newly granted unitary patent, ordinarily valid for 20 years, would instead be valid for only two years assuming the UK breaks away from the EU within the allotted timeframe.

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Fears for UK solicitors over patent court rights of audience