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is a partner with McDermott Will & Emery. Dr. Boris Uphoff focuses his practice on intellectual property, commercial litigation and alternative dispute resolution. He has litigation experience in all major German courts and assists clients in cross-border disputes. Boris represents German and international clients in patent infringement litigation and in contentious matters relating to trademarks and unfair competition law. Boris frequently represents clients in international arbitrations. He also acts as arbitrator in large commercial disputes. Boris regularly writes articles for legal and commercial publications such as Betriebs-Berater and Handelsblatt. For more information and to contact Dr. Uphoff please visit his firm profile page.
As the UK indeed voted for Brexit, the Unitary Patent system will now have to be re-negotiated altogether. The Unitary Patent Regulation states that the Unitary Patent cannot start before the UPC Agreement has been ratified by 13 participating Member States, including the three Member States in which the highest number of European Patents had effect in 2011, i.e. France, Germany and the UK. That alone means that the Unitary Patent must be put on hold now the Brexit referendum has been approved. Indeed, as a non-member of the EU, the UK will not be able to further participate in the Unitary Patent. Without the UK, with its market size and its reputation for patent litigation, the Unitary Patent will lose substantial value.
On 23 June 2016, the British citizens will hold their referendum on the country’s membership in the European Union. Should they vote for the UK to leave the EU (the so-called ‘Brexit’), the new European unitary patent system is likely to collapse before it started… If the UK was to refuse to ratify the European Patent Court Treaty after the exit vote on June 23 2016, the Treaty would also need to be renegotiated so that UK ratification is no longer required for the Treaty’s entry into force. Without such renegotiation, this requirement would only cease to apply when the UK has in fact left the EU.