For more than 40 years, resolving European cross-border disputes about patents in one proceeding has been a dream. The solution, by way of a new European Unified Patents Court (UPC), was until the summer of 2016 within touching distance. Following the Brexit vote, that dream has become a mirage.

Why is this so? Many people in business, in-house and private practice lawyers around the world and European judiciary, invested a huge amount of time and thought in producing a pan-European litigation system that had a good chance of working.  It would not be suitable for every dispute, but it had excellent prospects of working for many.  The reason is that it was a creative and practical blend of the civil law and common law systems which underlie the EU.  The national civil law jurisdictions typically have no live witnesses, no cross-examination, no discovery.  The national common law systems or ones like them as in Denmark, have all of those. The genius of the UPC was to introduce fact and expert evidence, cross-examination of witnesses and limited discovery of documents in a targeted way.  And to get to trial in 12 months.

A central court would have three divisions: France, the UK and Germany. The UK had influence and an ultimate participation in excess of its geographical size: because of its greater experience in forensic litigation, which cross-border disputes covering more than 500 million citizens demanded and merited.  The Brexit vote may put an end to all of this. The UPC is an EU vehicle. If the UK is out of the EU, it cannot be part of the UPC.

Is there a hope?  There is and this is why:

1. Brexit may be reversed or watered down – the vote in favour is often  described in the media and by politicians  as “clear”; but in fact it was only [50.9 to 49.1%] and was advisory, not mandatory. Article 50 of the Treaty on European Union (as amended by the Lisbon Treaty of 2007) has to be triggered to start the process of withdrawal and on what terms.  The English High Court has just ruled (November 3, 2016) that the UK government may not trigger Article 50 without the consent of the UK Parliament.  Members of both Houses were heavily in favour of Remain.
2. The UPC may survive, if it is no longer an engine of the EU, but (like the European Patent Office) is created by convention (or treaty), the UK can continue to be a participant.
3. Pan-European patent disputes are resolved by arbitration – the week after the Brexit vote, I was in Germany.  I was expecting a frosty reception from German patent lawyers and others. Not a bit of it.  They were dismayed and sad. They regard UK as their strongest collaborator, both in the EU generally and in the planned UPC in particular. Two German lawyers separately said to me that this was a real opportunity for pan-European patent disputes to be resolved by arbitration using procedures similar to those envisaged for the UPC.

Options 1 and 2 could take years.  In the meantime, and possibly in any event, option 3 deserves serious consideration by parties who want a resolution across Europe, and beyond.