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Brexit – IP Myths and Misconceptions 2

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brexit-1481028_1920IPcopy is returning to the subject of the moment today and taking another look at Intellectual Property and Brexit. Just over a month ago we posted our first “Myths and Misconceptions” post with the aim of highlighting any Brexit related commentary in the area of IP that presented a misleading take on the possible changes to the IP world following Brexit.

Today’s article picks up on a comment made about the future of the unitary patent system. IPcopy has highlighted the section of the article we had a slight issue with below.

What was said: If the UK ultimately does not participate in the UPC, then UK law firms and patentees will miss out on the benefits of the UPC – wider jurisdiction, more efficient & less costly enforcement – but as a large market the UK will remain an important IP territory regardless of what happens.

Who/Where: Dr  Luke McDonagh on the Kluwer Patent Blog

Reality: The above quote is taken from an interview on the Kluwer blog. As such it’s possible that the highlighted section represents a slight slip of the tongue. However, IPcopy notes that UK patentees will not miss out on the benefits of the UPC regardless of how Brexit impacts the UK’s participation in the unitary patent system.

The ultimate fate of the unitary patent system is still uncertain (though the official line is that implementation should continue as planned). The UK of course is one of the countries, along with France and Germany, that must ratify the UPC Agreement in order for the system to go live (A total of 13 countries including France, Germany and the UK are required. The current total stands at 10, including France).

Unless the UK decides to ratify the UPC Agreement during the Brexit negotiation period then it seems likely that the unitary patent system will, at the very least, be delayed. Once the UK has left the EU then Italy would take up the position currently occupied by the UK as one of the three countries that need to ratify and things could get moving again.

Assuming the unitary patent system then comes into effect then its benefits will be available to all patentees regardless of whether they are located inside the EU or outside the EU.

The unitary patent may be thought of as a sort of “super validation” option that can be selected once a European patent has granted. Instead of individual validation territories, patentees can instead select the unitary patent option to get coverage in all the countries currently in the system at that point. This option will still be available to UK patentees even if the UK has left the EU (and by extension the unitary patent system)*. Similarly, the unified patent court will be available to all owners of unitary patents and European patents that have not been opted out from the competence of the court. A post-Brexit UK would not have any local divisions of the UPC, but UK patentees would still be able to start actions in the UPC.

Still not convinced? Well, try swapping US for UK in the quote above. The US will not be participating in the UPC but no-one is suggesting that US patentees will not be able to benefit from the system.

Mark Richardson 1 September 2016

*There are a number of suggestions floating around the web that the UK could still participate in the unitary patent system to some extent even when/if the UK has left the EU. For this purposes of this article however we’re assuming that the UK will have to leave the unitary patent system when Brexit occurs.


1 Comment

  1. The Unitary Patent could be an excellent deal for patent owners wanting broad protection but is for sure not an economical advantage for everyone. Have a look at this really good web page http://www.up-calculator.eu to calculate yourself.

    Regarding who must ratify, I am sure you know it but it is still worth repeating: it is not said that UK, France and Germany must ratify, it only says the three biggest countries must ratify. If I remember well “biggest” was defined as most validations.

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