How the UK leaving the European Union affects European Patents

On 23 June 2016, the British public voted, by a narrow margin, to leave the European Union. In general terms, this has led to a lot of uncertainty for businesses due to the potential for UK law to diverge from EU law. Since the referendum result, a lot of speculation surrounds when, how (and if) the UK plans to negotiate its exit from the EU. One certainty amid this turmoil is the current status of European patent law won’t change as a result of “Brexit”.

In particular the UK’s membership of the European Patent Organisation will not change. This was immediately confirmed by the President of the EPO, Benoît Battistelli, following the referendum result.

The European Patent Office (“EPO“) is not a wholly European Union construct. Thus, the UK will continue to be a party to the European Patent Convention (“EPC“) after Brexit, like many other non-EU countries, such as Turkey, Iceland, Switzerland and Norway already are.

Furthermore, the EPO is a patent granting authority. It does not handle enforcement. Therefore enforcement of European patents will continue to be handled by national courts, so again, there will be no change resulting from Brexit.

The UK government have recently issued a notice about how patents (and intellectual property in general) have been affected by Brexit, click here to view the notice.

One change that has been the source of much speculation is with the proposed “Unified Patent Court” (“UPC“). The UPC promises a central patent enforcement and revocation mechanism effective across the EU.

The current European patent system demands that a patent granted by the EPO is validated in individual countries, leading to a bundle of individual national rights. The UPC Agreement would open up an additional option; an EU-wide “Unitary Patent” right.

This would make it easier for patentees to challenge third-parties across the whole of the EU. However, patentees risk losing an EU-wide patent following a single successful revocation action.

The UPC was originally scheduled to come into effect sometime in 2017, but it is likely that it will be delayed, possibly indefinitely, until it is clear how the UK will complete its formal departure from the EU.

In the meantime, UK and European patent law and practice will see no change.

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