The UK government intends to ratify the Unitary Patent System and the Unified Patent Court prior to Brexit.
The Brexit referendum passed earlier this year in which the United Kingdom voted to leave the European Union created uncertainty about the long-proposed European Unitary Patent System (UPS) and the Unified Patent Court (UPC), which are presently only available to EU members. The UPS and UPC were designed to create a centralized court system to enforce European patents that are currently examined and granted by the European Patent Office (EPO). The UPS would create a European patent with unitary effect that is examined and granted by the EPO like the present European patent but enforced by a new, centralized court system—the UPC.
Last week, however, the UK government announced its intent to ratify the UPS and UPC agreement while it still remains in the European Union. The announcement resolves some concerns about Brexit’s potential effect on UPS and UPC implementation. UPS and UPC ratification is now predicted to occur in 2017. Whether the United Kingdom can successfully negotiate with the European Union to remain in the UPS and UPC following Brexit remains unclear.
Brexit will not affect granted, pending, or to-be-filed patent applications in the United Kingdom, whether they are filed directly in the United Kingdom or filed through the EPO and validated in the United Kingdom. Because the EPO is an international organization established by a multilateral treaty—the European Patent Convention—the EPO will still be able (notwithstanding the United Kingdom’s exit from the European Union) to obtain a patent in the United Kingdom through current procedures at the UK Intellectual Property Office by way of the EPO, directly or through the Patent Cooperation Treaty. In effect, the United Kingdom may have a status similar to that of Switzerland, Norway, and Turkey (which are not members of the European Union but are members of the European Patent Convention; validation of granted EPO patents in the United Kingdom would remain available to patent applicants).
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Rick L. Rambo
Dion M. Bregman
Jeffry S. Mann
Richard de Bodo