Brexit and the Patent System

European Patents and PCTs

The Brexit vote will have a severe impact on many treaties, thankfully, the impact on the European Patent Convention (EPC) shall be minimal. The EPC was signed in 1973 by participating states to streamline the patent process.

The terms and conditions of the EPC are independent of membership in the European Union, therefore the current framework for the EPC will proceed as normal. The existing procedures from the European Patent Office (EPO) will stay the same. The period for filing opposition proceedings for patents will stay the same. British patent attorneys admitted into the EPO would also still be able to represent applicants at the EPO.

However, future issues may be hindered or hampered by this Brexit vote. Currently, the EPO is filed with a central office. The EPO performs a prior-art search to give their opinion on unity, novelty and inventive step. The patent-holder can then forward the European patent separately with the relevant member countries who must validate the patent in their current system. From 2017 onwards, the European Unitary Patent (EUP) treaty may be executed. Once a Unitary patent is approved, it will automatically be enforceable in all the countries of the EU (except for Spain and Croatia). Unfortunately, the EUP requires membership within the EU as a precondition for participation in the treaty. Currently, UK will not be eligible, separate approval will be necessary.

Unfortunately, for businesses, one positive side-effect of the EUP is the massive reduction in litigation costs against patent infringement. The EUP will be litigated in the Unified Patent Court (UPC, which will serve as a central court whose decisions will be binding upon all member countries. The UPC can issue injunctions that will be effective in all the member countries, greatly reducing litigation costs. Furthermore, if a patent is invalidated by the UPC, it will be invalidated in all the EU member countries. Unfortunately, now that Britain isn’t eligible for the UPC, patents will have to be separately invalidated in Britain. EU patents will have to pass into the national phase for validation, and also litigate through the British court systems for invalidation and infringement.

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