Brexit: The Unitary Patent (UP) and Unified Patent Court (UPC)

The Unitary Patent and Unified Patent Court will go ahead post-Brexit vote

The UK Government has ratified the Unitary Patent Court Agreement (see our note here).  However, in Germany, a challenge to the Unitary Patent (UP) and Unified Patent Court (UPC) has been filed with the German Constitutional Court. This challenge is still pending and, until it is resolved, the UPC cannot come into effect. It is therefore likely that the UPC will not come into effect until late in 2019 at the earliest, which is likely to be after the UK leaves the EU.  However, it also seems likely that EU law will continue to apply in the UK until at least the end of 2020 as part of a transitional agreement, during which time the UP and the UPC could come into effect.

The positive way in which the government ratified the relevant agreements that will bring the UP and UPC to life and the fact that, as the UK Government has itself noted, the UPC is an international court, rather than an EU body, bodes well for the UK’s continued involvement following Brexit. Given the UK Government’s announcement that EU law will be applied in the UK post Brexit, it seems likely that the Unitary Patent Regulation will be incorporated into UK law, which might ensure that no UP rights covering the UK are lost on Brexit. In a similar vein, we also expect that existing remedies granted by the UPC, and on-going UPC actions, will likely be maintained after Brexit. The UK will address its membership of these systems as part of the negotiations concerning the country’s exit from the EU.

We are prepared for the UP and UPC. We will be able to obtain UPs on behalf of our clients and our lawyers and patent attorneys have rights of audience in the new international court. Brexit is a subject that grabs headlines and, in doing so more, prosaic facts are missed: the ability of our firm to handle your European patent needs has not changed. The UK’s exit from the EU will not affect our ability to continue to file and prosecute European patent applications, obtain normal European patents or UPs or to litigate in the new international court that is the UPC.

We suggest that all clients should prepare for the arrival of the UP and UPC in 2019, with a view to being ready to use UPs and make UPC opt-out decisions if the system arrives. Our UP and UPC pages provide more information on this new system, including a brief summary of what to consider when making opt-out decisions.

Further resources can be found on our Brexit page.

23rd June 2016
Brexit Referendum:
UK votes to leave the EU
October 2016
Legal Opinion:
Legal opinion commissioned about whether the UK can remain part of the UPC / UP
28th November 2016
UPC ratification:
UK announces it intends to ratify the UPC / UP agreement
2019
Sunrise period?
Opt out available
2019
UPC opens?
The UPC opens and UPs are granted