Brexit & Patents

There will be no change to the application processes for UK and European patents.  Patents covering the UK are granted by two organisations: the UK Intellectual Property Office (UKIPO) and the European Patent Office (EPO).  Applications for patents can be filed directly with the UKIPO or EPO, or can be made pursuant to an international patent application filed under the Patent Cooperation Treaty. None of these bodies is an EU institution and they will continue to function after Brexit just as before. 
 
In particular, the United Kingdom will continue to be a contracting state to the European Patent Convention, which is the international treaty that established the EPO.  There are 38 contracting states to the EPC (ten more than EU members), including non-EU countries such as Norway, Switzerland and Turkey.  The UK will become another non-EU country but nothing else will change.  Applicants will be able to file their applications with the European Patent Office and, on grant, request validation in the UK and other countries of interest.
 
The standing of granted patents will also be unaffected by Brexit.  Following grant and validation in the UK, European patents have – and will continue to have – exactly the same legal effect in the UK as national patents granted by the UKIPO.
 
Furthermore, the UK will remain a member of the Paris Convention, which underpins intellectual property protection around the world. As such, it will remain possible for applicants who have filed for patent protection in the UK to subsequently claim the priority of that application for a patent registration in other countries and vice versa.
 
That is not to say that nothing in the world of patents will be affected by Brexit.  First, supplementary protection certificates for pharmaceutical and plant protection products, which are based on underlying patents, are governed by EU Regulation.
 
Second, some aspects of patent and intellectual property law have been harmonised by EU directives, in particular the Biotech Directive and the IP Enforcement Directive.  The UK government’s intention is that EU directives such as these will remain part of the corpus of UK law immediately following Brexit but that the UK courts will thereafter no longer refer questions regarding the interpretation of these directives to the Court of Justice of the European Union (CJEU).  It is therefore possible that over time there will be some divergence between the UK and the European Union in how these directives are applied to questions of patentability and patent enforcement.  Nevertheless, the UK courts are likely to find rulings of the CJEU on the provisions of these directives persuasive, even if they are no longer binding.

Brexit may well also have an impact on the UK’s participation in the proposed unitary patent and Unified Patent Court – for more on this please visit our UPC page.

If you have any questions regarding the impact of Brexit on your intellectual property rights, please contact your usual Marks & Clerk advisor or, alternatively, you can direct your question to the chair of our Brexit committee, Graham Burnett-Hall.

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