Patents after Brexit – a view from inside the EU

As Brexit Day edges ever closer, and with little sign of a deal with the European Union passing through the UK parliament before then, the current default position is that the UK will leave the EU without a deal on 29 March 2019. There is a lot of water to pass under the bridge before then, and there are movements in the UK parliament to ensure that a “no deal” Brexit does not happen. However, with no deal a very real possibility, how should you prepare to protect your rights in the UK and the rest of Europe after Brexit?

UK patents and applications

Nothing will change as far as gaining UK protection via the current European patenting system is concerned. At present, national protection in the UK can be pursued via the European Patent Office (EPO). The EPO is not an EU body, and the UK will remain a signatory to the European Patent Convention (EPC) that governs it after Brexit. Therefore, any existing UK national patents and pending applications pursued via the EPO will not be affected. Similarly, UK patents will still be available through future European applications taking the current route.

In the UK, no changes are planned regarding national law on who can apply for a UK patent and who can represent applicants and patentees at the UKIPO. The current law states that any person may apply for a UK patent, and that they must supply an address for service which is within the European Economic Area (EEA). Any individual, partnership or body corporate may act as an agent for others in front of the UKIPO. These provisions are not tied to EU law and so nothing will change in this regard after Brexit.

UK-implemented EU law

Some areas of UK law that do come from EU law are those relating to supplementary protection certificates (SPCs), biotechnology patents and applications, compulsory licensing arrangements, and exceptions from infringement for the testing of pharmaceutical products. However, the EU Withdrawal Act 2018 ensures that the relevant EU legislation will be retained in UK law. This means that UK law in these areas will continue to function in the same way after Brexit as before.

Unitary Patent Package

One area of uncertainty is UK participation in the new Unitary Patent Package. Part of this is the Unitary Patent. Rather than selecting individual countries in which to “validate” a European patent, as under the current system, this new package provides an alternative route where a patent granted by the EPO can be given “unitary effect”, such that it covers all EU countries that have signed up to the package. After Brexit, the UK would no longer be one of the countries. This package is not yet in force, and we are awaiting news from Germany on a constitutional challenge and subsequent ratification. Its eventual adoption may be dependent on whether the UK can be a participant – there are some questions as to the value of a Unitary Patent Package that does not include the UK, and the UK does still wish to be a part of the package. However, there is a possibility that the Unitary Patent Package will proceed without the UK. In such a case, applicants that wish to protect an invention in the UK would need to validate a European patent in the UK using the existing EPO route, which would then need to be handled separately from any Unitary Patent also in existence.

Conclusion

The current European patenting system will be unchanged regarding its application to the UK after Brexit. As such, applicants can still obtain patent protection in the UK via the EPO. However, Brexit has contributed to the growing uncertainty surrounding the eventual adoption and form of the Unitary Patent Package. Ström & Gulliksson can advise you on patenting in the UK, either via the EPO or the UKIPO, and, regardless of how things pan out after Brexit, will still be able to do so from its position inside the European Union.

More information can be found in the briefing note from the UK government here.

Would you like further information? Please contact your usual Ström & Gulliksson advisor, or our UK and European patent attorney Edmund Lobb.

This article is written by Edmund Lobb, UK Patent Attorney and European Patent Attorney. Ed works for a range of clients, from start-ups to multinational corporations, and his practice in both Europe and the UK helps him provide strategic advice to his clients with a practical and international perspective.