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IP Information & News

24 June 2016

BREXIT - What will this mean for Patents?

 

Brexit - 700 x 310


Updated 29 March 2017

On 23 June 2016, the British public voted in a referendum to leave the European Union (so-called “Brexit”). On 29 March 2017, the United Kingdom triggered Article 50 of the Treaty on European Union to commence the two year process of the United Kingdom' s withdrawal from the Union.  However, patent owners need not be concerned.  There is no loss of IP protection for UK patents prosecuted through the European Patent Office. 

Whilst there may be uncertainty in the months ahead, we now look at what Brexit will mean for patent systems in the UK and Europe.

Existing patent systems

Brexit will have relatively little impact on existing routes of obtaining patent protection in the UK. The UK’s membership to the European Patent Convention (EPC) and the Patent Cooperation Treaty (PCT) will not change.

Currently pending European patent applications designating the UK and European granted patents validated in the UK are not affected by Brexit. British European patent attorneys can continue to represent applicants at the European Patent Office (EPO). Brexit does not affect applicants seeking patent protection in the UK via the PCT.

Unitary patent

The UK has been a key player in the implementation of the proposed new Unitary patent system and Unitary Patent Court (UPC). In November 2016 the United Kingdom signed up to the UPC Agreement.

Following Brexit, the conditions of ratification of the Unitary Patent System will need to be amended which may delay introduction of the Unitary Patent and UPC. Brexit will possibly exclude the UK from the Unitary patent system, unless a compromise agreement is reached. Furthermore, the UK part of classical European patents granted under the EPC would have to be litigated in UK courts not UPC.

The problem faced is that the UK Government has explicitly stated that moving the UK away from the jurisdiction of the CJEU is a central ambition in exiting from EU membership.  The UPC Agreement is clear about the supremacy of EU law and involvement of the CJEU in the UPC system.   The positions have to be resolved.

Supplementary Protection Certificates (SPCs)

Supplementary Protection Certificates (SPCs) extend the duration of patents relating to certain medical or veterinary products and are currently governed by EU regulations. A Brexit will require amendment of the UK Patents Act to enable SPC protection to continue in the UK.

Comment

There is a two year transitional period while negotiations take place and for applicants and rights holders to assess their options.

Brexit will delay the introduction of the new Unitary Patent system, and it may or may not come into force without the UK’s participation. With a proposed start date in 2017, the position needs to be resolved sooner rather than later.

We will be assessing the situation regularly and providing updates as they become available.

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