The implications of Brexit

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

52% of the UK voted in favour of leaving the EU. What does that mean for the Unitary Patent System?
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President Battistelli of the EPO has affirmed that the result of the referendum will have no impact on the UK’s membership of the European Patent Convention or on the effect of European Patents in the UK. However, unlike the European Patent regime, the new Unified Patent system is only open to EU Member States. As a non-EU member, the UK would no longer be eligible to participate in the Unified Patent Court (UPC) and proceedings relating to the UK part of European Patents granted under the EPC would need to be brought in the UK courts. Moreover, any Unitary Patents granted post-Brexit would not cover the UK, and those already granted would cease to apply in the UK (most likely subject to transitional arrangements to allow patentees to preserve their rights in the UK by way of supplemental national filings).

Quite apart from the practical impact for UK patent holders, concerns have been expressed that a Brexit could significantly delay – or even entirely derail – the implementation of the UPC. The UPC Agreement is required to be ratified by 13 Member States (including Germany, France and the UK) before it comes into force. Now that the UK has voted to leave the EU, this compulsory ratification would likely fall to Italy as the Member State with the next highest number of European Patents in force in 2012. It is likely that the UPC will ultimately proceed in any event (even if delayed), with or without the UK’s involvement. It will require considerable restructuring though and an amended UPC Agreement because, at present, ratification by the UK is a pre-condition and the UK is hosting the life sciences division of the Central Division of the UPC.