Patents if there’s no Brexit deal

The British government has prepared guidelines for a no deal scenario.

Only a few areas of UK patent law come from EU legislation. One important area relates to supplementary protection certificates for pharmaceutical products and agrochemicals.

The UK government wants to keep EU’s legislation on supplementary protection certificates in UK law. This law, along with the existing supporting provisions in UK patents legislation, will form the UK’s own supplementary protection certificate regime on exit. The supplementary protection certificate regime in the UK shall continue to operate as before for UK, EU and third country businesses. Likewise, all other EU legislation relevant to patents and supplementary protection certificates shall be kept in UK law.

Any existing rights and licences in force in the UK will remain in force after March 2019.

(Even) more complicated appears the situation around the Unitary patent and Unified Patent Court:

Currently, there is an appeal pending before the German Constitutional Court which blocks the coming into force of the Agreement on the Unified Patent Court. If no deal with the EU will be made, there are 2 different scenarios for the Unified Patent Court:

The Unified Patent Court does not come into force: The UK has ratified the Unified Patent Court Agreement but ratification by Germany is still outstanding. If the Unified Patent Court is never fully ratified, the domestic legislation to bring it into force will never take effect in the UK. In this scenario, there will be no changes for UK and EU businesses at the point that the UK exits the EU.

Unified Patent Court comes into force: If the Unified Patent Court is ratified and comes into force, there will be actions that UK and EU businesses, organisations and individuals may need to consider. The UK will explore whether it would be possible to remain within the Unified Patent Court and unitary patent systems in a ‘no deal’ scenario. In the event that the Unified Patent Court and unitary patent come into force and the UK needs to withdraw from one or both systems.

If the Unified Patent Court comes into force and the UK needs to withdraw from both the Unified Patent Court and unitary patent, businesses will not be able to use the Unified Patent Court and unitary patent to protect their inventions within the UK. In the UK, businesses will only have the option of protecting their inventions using national patents (including patents available from the non-EU European Patent Office) and UK courts. EU business will not be able to use the Unified Patent Court 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.

Areas of Law

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