27 September 2018
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The existing European patent system was unaffected by the UK leaving the EU earlier in 2020, and by the upcoming end of the transition period on 31 December 2020, 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 in both the UK and Germany 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 United Kingdom will not be part of the new system [LINK]. The main action needed for the system to come into effect is for Germany to ratify. This was delayed by a challenge to the systems raised in the German Constitutional Court (the Bundesverfassungsgericht, BVerfG ) whose decision requires the ratification legislation to be presented again to the German Parliament (Bundestag).

The UK’s withdrawal from the UPC system reduces the size of the market covered by the UP, but the UP and UPC will still be welcome, as they will lower the cost of multi-jurisdiction patent litigation in Europe and allow such litigation to be conducted in English.

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 and should allow for both our UK and German based European patent attorneys to handle UPC litigation, alongside our ability to act in both UK and German national patent litigation.

Brexit has 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.

Interested in the imact of Brexit on EU trade marks (EUTMs)? Read our blog about the renewal of EUTMs post-Brexit and how to prepare.

Robert is a Partner and Patent Attorney at Mewburn Ellis and handles patent work in our chemistry 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. Robert is a member Standing Advisory Committee before the EPO (SACEPO), and 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 represents FICPI-UK on the Marks and Designs Forum (MDF). He regularly speaks at conferences on a variety of topics including design law, entitlement to priority and privilege.
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