Implications of the Brexit on Unitary Patents and existing European Patents under the European Patent Convention EPC

When will the Brexit actually happen?

By the UK indicating officially its withdrawal from the European Union, a 2-year time period for negotiating the terms of such withdrawal is triggered under Article 50 of European Union Agreement. At present, no such withdrawal notice has been made. Although it appears that the UK will actually follow through with its withdrawal notice, it will remain being a European Union member for at least 2 years from officially withdrawing from the EU.

What are the implications of the Brexit on the planned Unitary Patents and Unified Patent Court?

The UK continues to be a EU member country for at least 2 years after formally notifying the European Union of leaving it. This means, for 2 years plus the time from today to such notice date, the UK could still simply ratify the Regulation on the European patent with unitary effect (UP Regulation) and the Agreement on a Unified Patent Court for litigation on infringements and revocation of European and unitary patents (UPC Agreement) at any given point in time. It requires 13 countries in total including the necessary countries France, Germany and the United Kingdom for the Unitary Patent to come into force. As of today, 8/19/16, in total 10 countries AT, BE, BG, DE, FR, LU, MT, PT, SE, FI have ratified. Although these countries only include France as the sole necessary country, should the UK, Germany and one more country ratify, the Unitary Patent Regulation would come into force. The ratification status can be monitored at: Forward-thinking, an option of fixing the EU Directive also with effect of the time after the Brexit may be a slight amendment of the Regulation extending it also to former EU member countries.

What happens if the UK does not ratify the UP Regulation while still a member of the EU?

Although the EU regulation cannot come into force in its present form, an amendment removing the UK as a necessary country seems likely as enacting Unitary Patents meanwhile finds a broad support within the EU.

If the UK does not ratify the Unitary Patent Package during its EU membership, will it never become part of the Unitary patent system?

The UK will most likely remain being a member of the existing European Patent system under the European Patent Convention EPC, specifically since a number of non-EU countries are a member to the European Patent Convention EPC and the UK has always been supportive of the European Patent Convention. The UK has also been supportive of the Unitary Patent package. The existing European Patent Convention (EPC) allows under Article 142 EPC extension of Unitary Patents to non-EU-but-EPC countries. Therefore, even if the UK does not ratify the Unitary Patent Package, it may nevertheless join the Unitary Patent system under Article 142 EPC.

What is the overall outlook on the Unitary Patent Package and on covering the UK by Unitary Patents in view of the Brexit?

Although the Brexit may cause some delay, it is likely that something will be worked out for the Unitary Patent package to come into force, possibly even including the UK. In any case, at the very least, there is no indication that the UK intends to leave the existing European Patent system under the EPC.

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