LSPN Europe 2018: UK has SPC opportunity post-Brexit, says Dentons lawyer
The UK has an excellent opportunity to adopt laws on supplementary protection certificates (SPCs) that will provide a “clearer” set of legislation post-Brexit, said French lawyer Marianne Schaffner, partner at Dentons.
Schaffner was speaking at LSPN Europe 2018 in London on Thursday, November 15, just one day after UK Prime Minister Theresa May announced that a draft Withdrawal Agreement had been agreed between the European Commission and the UK’s negotiators.
The draft Withdrawal Agreement must also be approved by the European and UK parliaments. Euro-pean leaders are due to meet on November 25 to endorse the draft agreement, and the UK parliament will vote on the deal in December.
Under the draft, any SPC applications for plant protection products and for medicinal products which are filed before the end of the transition period (due to apply until the end of December 2020) will continue to be dealt with under the existing regime (article 60 of the draft).
However, the draft doesn’t outline anything on the topic of future SPC applications.
Schaffner said that the current EU law is “confusing” because of the many different SPC decisions issued by Europe’s highest court, the Court of Justice of the European Union (CJEU).
She added that it’s also currently unclear whether a UK market authorisation will be taken in to ac-count when filing an SPC in the EU.
Turning to the Unified Patent Court (UPC) Agreement and the unitary patent, Schaffner outlined po-tential scenarios, such as one where the German Constitutional Court rejects a UPC-centred constitu-tional complaint filed last year.
In June last year, the court announced that it was delaying Germany’s ratification of the UPC Agree-ment because of the complaint, which was filed by Düsseldorf-based attorney Ingve Stjerna.
“I’m almost sure we won’t get a decision by the end of this year,” said Schaffner during the conference, before adding that the court may “strategically withhold” from making a decision until issues surrounding Brexit are resolved.
However, if the EU and UK fail to agree to a deal, a hard Brexit (where the UK completely leaves the EU and the single market entirely) will take place with no transition period.
In this situation, the UK will have to withdraw from the UPC and the unitary patent if Germany has not yet made a decision on the constitutional complaint, said Schaffner.
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