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The existing European patent system will be unaffected by the UK leaving the EU, so no action by patent holders is needed.

The patent application system won’t change after Brexit – you’ll still be able to use either the national route in the UK or the European route via the European Patent Office (EPO) to seek protection for inventions in the UK. The EPO is not an EU institution, and the UK will remain one of its 38 member states. 

You’ll still be able to designate both the UK and Europe when making international patent applications via the Patent Cooperation Treaty (PCT) system. This means that patent protection will still be available using the PCT system in the UK via the national and EPO routes.

Representation before the EPO

UK-based European patent attorneys will still be able to represent their clients at the EPO when the UK leaves the EU. Mewburn Ellis has worked with the EPO since it was founded in 1977 and has made a significant contribution to the development and application of European patent law and practice ever since. We continue to build on this experience, and our large team of European Patent Attorneys will continue working with you to protect your innovations using European and International patent applications.

Unitary Patent and Unified Patent Court

We’re still waiting for the Unitary Patent (UP) and related Unified Patent Court (UPC) system to be implemented. The UK has ratified the agreements relating to the new system. All that is needed for the system to come into effect is for Germany to ratify. This has been delayed, by a challenge to the systems raised in the German Constitutional Court (the Bundesverfassungsgericht, BVerfG ).

It’s not year clear if the UK will remain within the UPC system post-Brexit. The UK Government has signalled its desire to do so. If the UK does withdraw from the UPC when it pulls out of the EU, it is likely that the London branch of the central division of the Court of First Instance will relocate to the territory of an EU member state. If the UK left the UPC system, this would reduce the size of the market covered by the UP. But the UP and UPC would still be welcome, because they’d lower the cost of multi-jurisdiction patent litigation in Europe and allow such litigation to be conducted in English.

On the other hand, adjustments could be made to the UPC Agreement that allow the UK to remain within the UP and UPC system. This does throw up some practical challenges with this – the role of the European Court of Justice, for example, and primacy of EU law – but they could probably be overcome if there’s the political will.

If the UK were to leave the EU after the Unitary Patent system had come into force, the UK government have confirmed that that any UPs would be converted into UK national patents under transitional provisions by virtue of the EU Withdrawal Act 2018.

Representation before the UPC

Only lawyers authorised to practise before a court of a UPC-contracting member state, and European patent attorneys who hold an appropriate litigation qualification, can represent clients at the UPC. This rule will continue to apply to UK-based European patent attorneys, even after the UK leaves the EU. This allows the possibility for UK-based European patent attorneys to handle UPC litigation and any parallel UK court litigation.

Brexit will have no effect on the ability of UK-based companies to obtain UPs either, because they’ll continue to be derived from European patents. So Mewburn Ellis is looking forward to full involvement in the UPC if it comes into force.

Robert handles patent work in our chemistry & materials team. Dealing mainly with drafting and prosecuting and advising on global portfolio management and invention capture, he has particular experience in the pharmaceutical and industrial chemistry, sectors. He is also a leading member of our designs team. Formerly President of FICPI-UK (2011-2015), Robert is currently Vice-President of FICPI’s Work and Study Commission (CET) in which capacities he meets the European Commission, EPO, EUIPO, WIPO and other patent offices. He is also a member of the Designs and Copyright committee of CIPA and regularly speaks at conferences on a variety of topics including design law, entitlement to priority and privilege.

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