BREXIT – Impact on UK and European Patents

On 23 June 2016 the UK voted to leave the European Union (“Brexit”). The UK is expected to enter into a negotiation period during which the terms of withdrawal from the EU will be settled. The actual exit date is not yet known, but the existence of a two year notice period for withdrawal from the EU suggests that the UK will not exit until 2018 at the earliest.

We have put together the following to address some of the most frequently asked questions. We welcome any questions you may have at brexit@gje.com.

Patent Protection in the UK

Patent protection covering the UK is obtainable via two systems. Under the first system, which is governed by the UK Patents Act, a UK patent is obtained by applying directly to the UK Intellectual Property Office (UKIPO).

Under the second system, which is governed by the European Patent Convention (EPC), a European patent designating the UK is obtained by applying to the European Patent Office (EPO), and then validating the granted European Patent in the UK.

UK patents, regardless of the system by which they were obtained, are enforceable in the UKIPO and the UK courts only.

How will Brexit affect Patent Protection in the UK?

Brexit will not change the current systems for obtaining patent protection covering the UK. Patents granted by the UKIPO and European patents designating the UK will not be affected. Patent applications pending before the UKIPO or the EPO will also not be affected.

Membership of the EU is not a requirement for membership of the EPC, so the UK will remain a member of the EPC even after formal Brexit. This means that UK patents will continue to be obtainable via the EPC before and after Brexit.

The enforcement of UK patents, regardless of the system under which they were obtained, will not be affected by Brexit.

Will GJE still be able to obtain UK and European patents for our clients?

Yes. It remains very much “business as usual”. European patent attorneys based in the UK will continue to be able to represent applicants and patent owners in all proceedings before the EPO and the UKIPO. This will continue once Brexit has actually taken place.

Does any immediate action need to be taken to secure UK and European patent rights?

No. The current systems for obtaining and enforcing patent rights in the UK remain essentially unchanged.

What about the Unitary Patent System?

As it currently stands, the proposed Unitary Patent (UP) and Unified Patent Court (UPC) systems will be open only to members of the EU. However, without the UK taking part in the UP or UPC it is, at best, likely to be delayed for some years. Importantly, should the UPC proceed, European patent attorneys based in the UK will have the right to represent clients before the UPC regardless of Brexit. We at GJE will, of course, keep our clients updated with any new developments.