To mark the second anniversary of the UPC, we examine the relationship between the UK patents jurisdiction and the UPC.
In part one we explain the UPC’s long-arm relationship with the UK. In part two we examine how defendants might respond in an attempt to prevent long-arm jurisdiction by the UPC and in part three we ask whether the UK should consider joining the UPC in future.
Part three: Should the UK seek to join the UPC?
In parts one and two of these articles, we discuss the power of the UPC to grant relief in respect of infringement of patents that are registered in non-UPC countries, including the UK, as well as its power to decide on their validity. We also discuss the means by which the UK court might grant anti-suit injunctions (ASIs) to prevent such a long-arm reach.
UK ASIs can potentially, however, be defeated by a UPC anti-ASI! So, is a more radical solution needed? In particular, would this be a good point for the UK Government to consider (again) joining the UPC? And, could it do so?
What would be the advantage for the UK?
Prior to February 2020, when the UK was originally due to join the UPC, it was to have a local division in London, as well as a section of the central division hearing revocation actions concerning human necessities subject matter, such as pharmaceuticals. That section of the central division was subsequently assigned to Milan. But, there is no reason why the UK could not still have a local division if it were to join the UPC. More importantly, the involvement of the UK in the UPC would also mean the participation of UK judges. Two such judges could be expected to sit in the local division, as well as participate on the divisions of panels in the other contracting member states.
As a result, if the UPC is to grant orders and make decisions that affect UK patents, the UK would be involved in that decision making on an equal footing with other UPC countries, rather than having no involvement at all.
So why did we leave in the first place?
The original purpose for the UK withdrawing its ratification of the UPC Agreement (UPCA) was that the government considered participation in a court that applies EU law and is bound by the CJEU would be inconsistent with the aims of the UK leaving the EU.
Since then the government has changed and now has a more sympathetic attitude towards participation in EU projects. Indeed, as part of its 'EU Reset', as of May 2025 it has already conceded the issue of dynamic alignment with European law in a number of areas together with CJEU oversight. In other words, the stated reason for leaving the UPC no longer appears to apply.
More such EU alignment may occur in future and this could include participation in the UPC.
There has been much debate about whether the UK could participate in the UPC given that it is not an EU member state. The original view of the European Commission when the UPCA in its current form was drafted was that the participation of non-EU member states was not possible. An alternative view is that the UK might participate now, provided it agrees safeguards to ensure the supremacy and uniformity of EU law. The UPC itself, as an international court, is outside the EU legal order and CJEU authority permits the application of EU law outside the member state territories.
The fact that alignments are already taking place with the EU appears to suggest that the UK could participate in the UPC without being a member of the EU if the political will is there.
If the UK government is to reconsider participation in the UPC, now is the time to do so.
