UK’s withdrawal from the European Union, known as Brexit, is currently scheduled for 31 October, 2019. The British government is trying to reach a deal with the EU before this date and secure a withdrawal agreement, but it may also leave the EU without an agreement, or any other deal.
At this point, existing European patent rights remain unaffected, and there are no immediate actions to be taken by rights or license holders. However, in light of the possibility of a no-deal Brexit, the government has published a series of guidance documents, called technical notices, to help clarify the situation, in this case a guidance to patents.
Current patent protection in the UK
Most of UK patent law is domestic legislation independent of EU legislation, although there are some exceptions. For example, in the case of patented pharmaceutical products and agrochemicals, the EU law provides longer protection then UK patent law, granting patent holders a supplementary protection certificate, as well as a few other exceptions.
Patents under no-deal Brexit
Application for and prosecution of European patents will continue to be handled by the European Patent Office (EPO), as EPO is not limited to EU members.
As for the UK, as explained in the government’s technical notice on the subject, “The relevant EU legislation (or its domestic implementation) will be retained in UK law under the EU Withdrawal Act 2018”.
This means the current systems and the supporting UK legislation will remain in place, operating independently from the EU. Therefore, the system of supplementary protection certificates and all other EU legislation relevant to patents and supplementary protection certificates will be kept in UK legislation, together with current provisions to create continuance of the system after exit.
Important no-deal points
Generally speaking, all existing rights and licenses in the UK will not change. Therefore, there will be no significant changes in terms of patent law, including pending applications and legal proceedings, as well as areas of exception, such as biotechnological patents and pharmaceutical product testing.
As for new applications, they can continue to be filed just as before.
Unitary Patent and Unified Patent Court
The Unitary Patent and the Unified Patent Court are the two parts of an EU patent reform designed to offer stronger patent protection and dispute settlement across Europe starting 2020. Unitary Patents will make it possible to file one patent request to get patent protection in EU member states, and the Unified Patent Court is an international court that will deal with patents in the EU without the need for parallel litigation, its decisions having a pan-European effect.
As these systems are not yet in force, they don’t affect the current situation. However, if they do come into force in a no-deal scenario, there may be future implications.
Patent protection strategy
Businesses, organizations and all rights and licenses holders should continue to monitor the situation closely as exit day approaches.
We at Wiser Market believe it is important to effectively prepare and know how to protect your intellectual property online and offline after Brexit.
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