The process of obtaining patent protection in Europe is unaffected by Brexit and thus no changes to your strategy for obtaining European patents need to be made for Brexit. By contrast, the proposed streamlined system for enforcement of patents provided by the UP/UPC is likely to affect your European patent strategy. Although neither the start date of nor the impact of Brexit on the UP/UPC are certain, we recommend preparing your strategy now.
Obtaining patent protection in Europe
The European Patent Office (EPO) which processes European patent applications is not an EU institution and provides an effective way to obtain patent rights in both EU member states and many other European countries such as Norway, Turkey and Switzerland. Now and after Brexit, an application at the EPO covers the UK and other European countries.
Enforcement in Europe
Once granted, a European patent becomes a bundle of separate national rights in each of the European countries where protection is sought. In recent years there has been considerable work to provide a streamlined enforcement process which builds on the successful system provided by the EPO. There are two strands to the project: a Unitary Patent (UP) and a Unified Patent Court (UPC). The UP will be a single patent covering all member states and will be obtained by a straightforward validation process after grant by the EPO. The UPC is an international court for disputes in relation to both European and Unitary patents and will issue a single decision having effect in all member states. There will thus be important strategic decisions to be made:
- Does a UP or a bundle of national rights provide the best European protection for each invention?
- Is the UPC or a national court the best forum for enforcing our European patents?
Earlier this year, the UK government confirmed its commitment to this streamlined process and ratified the agreement which brings the UP and UPC into effect. Many other countries have also ratified the agreement and the start of the new process is now dependent on Germany. The German government is committed to the project but there has been a legal challenge to the German ratification process. The legal challenge is still pending and thus the start date for the UP/UPC is still unknown.
Currently, only EU member states can be party to the streamlined process. The UK government has reaffirmed its commitment to the UP/UPC in the recent Brexit White Paper and indicated that they will work with other member states to make sure that the UP/UPC can continue on a firm legal basis. The UK’s membership of the UP/UPC will thus be determined by the Brexit negotiations.
Although there is still a great deal of uncertainty, it is certain that once the German challenge is settled, the UP/UPC can come into force in a few months. Accordingly, we recommend preparing answers to the strategic questions above now so that the decisions can be implemented quickly when needed.
More information on the progress of the UP/UPC and Brexit will follow as soon as it is available.
Please do not hesitate to contact us if you have any questions regarding your strategy for European patent protection.
Julia Gwilt is a Partner at Appleyard Lees and an expert in bioinformatics and artificial intelligence/machine learning in drug discovery.
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