Questions remain over fate of Retained EU law

What are the implications for patent litigation?


Following the UK’s departure from the European Union, certain EU laws applicable to the UK at the end of the Transition Period were preserved by virtue of European Union (Withdrawal) Act 2018 (as amended by the European Union (Withdrawal Agreement) Act 2020).

Whilst there have been subsequent statutory instruments exercising powers under the above-mentioned Act, for example, extending the powers of UK courts to depart from EU case law (see our previous articles here and here), in September 2022 the Government introduced a bill to enable the restatement, replacement or updating of certain retained EU laws, known as the Retained EU Law (Revocation and Reform) Bill (the Bill). This Bill, which underwent its second reading in the House of Commons last month, proposes wholesale change with regards to the status of retained EU law.

Proposed scope of the Bill

In short, the Bill proposes to “sunset” retained EU law, meaning that it will automatically be revoked on 31 December 2023 unless otherwise preserved by the Government. Prior to this sunset, Government departments will need to review the existing legislation and determine what it considers to be appropriate for a post-EU UK. The legislation that is preserved will be “assimilated” into domestic law and all associated special EU features, such as interpretation in line with EU practices and precedence over certain domestic law, will be removed.

The Bill also proposes to grant powers to make it easier to amend, repeal and replace EU retained law via secondary legislation. This means that the new legislation would be subject to limited Parliamentary scrutiny.

This Bill has the potential to impact over 2,400 pieces of retained EU law across 21 sectors of the economy. Below, we consider the potential impact for patent litigation. For thoughts on the possible ramifications on employment law, see our colleagues’ article here.

Impact on patent litigation

Of practical interest to all litigants – be them patent focussed or otherwise – is the potential impact on the operation of the UK courts. At present, only the Supreme Court and a selection of appeal courts, including the Court of Appeal of England and Wales, can depart from retained EU case law. This is not due to change, but the Bill envisages that the courts would apply a different test when determining whether to depart from EU case law and would no longer need to interpret domestic law in line with EU concepts.

Notably, the Bill proposes to introduce a reference mechanism so that lower courts, such as the High Court, can seek a ruling from the Court of Appeal on whether it should depart from retained EU case law. The Bill envisages that either the lower court or one of the parties to the litigation could apply for a ruling. It seems likely that this would result in an increase in demand of court resource and, potentially, a race to litigate controversial issues that have been decided under retained EU case law as parties seek to obtain a favourable ruling via the reference mechanism (e.g. the myriad Article 3(a) SPC questions).

Turning to the impact on patent law, practitioners will be aware the majority of UK patent law falls outside of the jurisdiction of the European Union. In particular, the Patents Act 1977 will be unaffected. However, questions remain as to the fate of the SPC Regulation (EC) No 1610/96 , as retained by the Patents (Amendment) (EU Exit) Regulations 2019 (subsequently amended by The Supplementary Protection Certificates (Amendment) (EU Exit) Regulations 2020), and the Intellectual Property (Enforcement, etc.) Regulations 2006. If the Bill progresses, guidance will be expected from the UK Intellectual Property Office (IPO), although it is hard for these authors to envisage whole-sale change to legislative instruments that protect intellectual property and promote investment and innovation in the UK.

Looking ahead

Various stakeholders have expressed their concern about the potentially wide-ranging effects of the Bill. However, recent events have cast the Bill’s future into doubt. The Bill’s primary sponsor, then-business secretary Jacob Rees-Mogg, has resigned from his post since the introduction of the Bill and a new Government has been formed in Westminster. Since taking residence in No. 10, the new Prime Minister is reportedly considering to deprioritise the Bill amid concerns about the burden on Government departments to analyse all relevant retained EU law in advance of December 2023. Whilst the Bill is currently at the Committee stage, in view of the political climate, the future of retained EU law and case law remains to be seen.

Andrew Bowler


Kate O'Sullivan

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