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No Deal Brexit Breakdown: Patents

Written by Ellis Sweetenham on 02 October 2018

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With Brexit looming and the potential of a No Deal Brexit very real, it is important to sit up, take note and take action in respect of your IP.

Here at Lawdit, we have produced a series of articles to allow you to pinpoint the impact on your IP portfolio, no matter what that includes.

Please check out the other articles in the series, which will already be or coming up on the reading room.

Following the referendum and the ongoing saga in respect of Brexit, patents have been a particular hot topic of discussion.

While most of UK patent law is in respect of international conventions and therefore is not majorly affected by Brexit, the key concern is in respect of the Unified Patent Court.

Introduced and discussed as a way of harmonising the EU patent system including the UK, it has now become a bit of a headache and has definitely not been plain sailing.

As it stands, putting Brexit to one side, the UPC is all dependant on the ratification from Germany, who do not seem to be urgently moving forward in time for the March 2019 exit day.

If the ratification does take place before March, the UPC will come into force in the UK for a period of time.

This will have a knock on effect on UK and EU businesses who will need to consider their options.

The UK Government has released some guidance which focuses on the implications of the UPC and unitary patent coming into force and the UK’s need to withdraw.

This guidance highlighted the following:

  1. Businesses will no longer be able to use the Unified Patent Court and unitary patent to protect their inventions within the UK.
  2. Existing unitary patents will give rise to equivalent UK patent protection to ensure continued protection in the UK.
  3. UK business will still be able to use the Unified Patent Court and unitary patent to protect their inventions within the contracting EU countries. However in the UK, businesses will only have the option of protecting their inventions using national patents (including patents available from the European Patent Office) and UK courts.
  4. UK business will still be open to litigation within the Unified Patent Court based on actions they undertake within the contracting EU countries if they infringe existing rights.
  5. EU business will no longer be able to use the UPC and unitary patent to protect their inventions within the UK but will be able to apply for domestic UK rights as they can now, via the UK Intellectual Property Office and the non-EU European Patent Office.

The above gives some clarity on one scenario, the joining then leaving again of the UK, but of course there is not certainty that this will happen.

Yet again, guidance released has not given a clear picture and has only told half of the story.

If you'd like to know more about this article please send an email to Ellis Sweetenham quoting the article title and any questions you might have, alternatively call the office number on 02380 235 979 or send an enquiry through our contact form.

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