Brexit & Patents

Basic patent law in the UK will not change following Brexit. The UK will continue to be a contracting state to the European Patent Convention, the international agreement that established the European Patent Office, which oversees the examination and grant of European Patent applications.  The EPC is entirely separate from the European Union and has approximately 40 contracting states.  These include all the EU countries but also many non-EU ones.  The UK Intellectual Property Office will also continue to grant UK national patents just as before.

However, EU law governs the regime for supplementary protection certificates (SPCs) for pharmaceutical products and agrochemicals in the UK. The relevant EU legislation will be retained in UK law.  In time the legislation governing the grant of SPCs in the UK may be amended but it is not anticipated that there will be any significant changes in the short term. Any future change to the law will presumably be preceded with full consultation of stakeholders.

The existing patent litigation system will also continue as before.  What will be impacted is the proposed Unified Patent Court (UPC).  The Unified Patent Court Agreement was made in 2013 but it has not yet entered force, as this depends on ratification of the Unified Patent Court Agreement by Germany, which itself is dependent on the outcome of an ongoing constitutional challenge.

Although the UPC Agreement is technically not an EU instrument, it envisages that the participating countries will be EU member states and expressly provides that the UPC will give primacy to EU law.  It is therefore far from clear whether it will be politically and legally possible for the UK, although it has itself ratified the UPC Agreement, to continue to participate. The UK has stated that it is committed to exploring whether it will be possible to participate in the UPC and associated unitary patent system. Whether the position is resolved by the end of 2020 remains to be seen.  Should the UK withdraw from the UPC Agreement, the remaining countries will need to decide whether to proceed without the UK with the establishment of the new court and litigation system.

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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