Brexit and Patent Rights

Two months after the vote of the people of the United Kingdom (UK) to leave the European Union (EU), there is still a lot of debate about what that will mean in practice. The exit of UK is not expected to be triggered before end of 2016, giving then the two sides two years to agree the terms of the split.

What would be the impact of the exit of UK from EU on the patent landscape?

• European Patents will not be directly affected by Brexit, because they are granted by the European Patent Office pursuant to the European Patent Convention. The European Patent Office is not an agency of the EU and has many non-EU members. Enforcement of patents in the UK, however, will no longer be subject to EU directives and regulations after Brexit takes effect. Provisions for Supplementary Protection Certificates (SPCs), currently based upon EU regulations, will also need to be provided by new UK law.

• Brexit should not bring an end to the whole project of the EU Unitary Patent and Unified Patent Court (UPC). However it will obviously be delayed. The UPC can only come into effect when ratified by 13 participating countries which must include the three EU Member States in which the highest number of European patents had effect in 2012 (the year before the Agreement was signed):

- the UK could ratify the UPC Agreement before formally leaving the EU;

- more likely, once the UK leaves the EU, the three EU countries required to ratify would be Germany, France and Italy (or the Netherlands). It is also expected that the London section of the UPC's Central Division would be relocated to a country within the EU.

To sum it up, Brexit has no immediate impact on the protection system of innovations in Europe. Until the next political twist, it should “only” delay the implementation of EU future tools, including the Unified Patent, which UK could no longer be part of.