On 24 September 2018, the UK Government published long-awaited guidance on how certain aspects of UK patent protection will be treated in the event that no Brexit deal has been agreed prior to the UK’s exit from the EU on 29 March 2019. This guidance is part of the “series of technical notices setting out information to allow businesses and citizens to understand what they would need to do in a ‘no deal’ scenario”. It is important to be aware that the published note is for guidance, only. It is not statutory legislation, which will follow.
For granted UK patents and UK patent applications, there is no real change.
European Patent Attorneys based in the UK will continue to act for their clients both in the UK and abroad regardless of whether there is a ‘deal’ Brexit or a ‘no deal’ Brexit, because the European Patent Office is not an European Union institution.
UK Patents & UK Patent Applications
Existing and new UK patent applications will be unaffected, while UK patents granted by the United Kingdom Intellectual Property Office (UKIPO) will be largely unaffected as only a few areas of UK patent law come from EU legislation.
UK patents for pharmaceuticals and agrochemicals would be impacted if they benefit from supplementary protection certificates (SPCs). SPCs are used to extend the period of protection of a UK patent up a maximum of five and a half years after the UK patent has expired. SPC rights are derived from EU law, however the UK Government guidance assures us that the EU Withdrawal Act 2018 will retain the relevant SPC EU legislation in UK law so the regime will continue to function as normal through the withdrawal process.
European Patent Applications
European patent applications are granted by the European Patent Office (EPO), which is part of an organisation not legally bound to the EU. There are already several contracting states of the EPO which are not themselves EU states, so the rights of European Patent Attorneys to act before the EPO and the rights of their clients around the world will not be affected by the withdrawal process.
Unitary Patent and Unified Patent Court
The Unified Patent Court and the unitary patent regime are not yet in force and, as such, there are currently no existing rights that can be lost. Before the Unified Patent Court can enter into force, four constitutional appeals must be heard by a panel of the German Federal Constitutional Court and it is unclear if this will occur before 29 March 2019. Should the German constitutional hurdles be overcome in time, the Unified Patent Court will enter into effect and the UK will be a party to it, but the UK’s continued membership after it leaves the EU is unclear and would need to be negotiated.
The UK Government guidance sets out multiple scenarios, but the greatest uncertainty relates to when pending appeals before German Federal Constitutional Court will be heard and what the outcomes will be. If the Unitary Patent Court does come into force before 29 March 2019 and the UK has a ‘no-deal’ Brexit then, in reality, there will likely be little time for the UK to negotiate continued membership of the Unified Patent Court.