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Brexit delays unitary patent


This spring Europe was surprised by Brexit. By now it has become clear that there will also be quite a few consequences for the unitary patent and the Unified Patent Court. Patent Attorney Peter de Lange from V.O.: “We were supposed to start with this next year. But I can’t say if it’s even going ahead at all right now.”

Did you receive many calls?
“My colleagues and I did update a few clients on this in June. But afterwards things calmed down again. IP is obviously not the most important subject in politics, which is much more about the free movement of goods and people.”

Can you already name the consequences of Brexit when it comes to IP?
“The current system of European patents will not be affected in any case. That system is separate from the EU. Countries such as Turkey and Switzerland also participate in it. There are no signs at all that the UK will be withdrawing from it. So protecting inventions with a European patent remains a safe choice. After all, when such a patent is issued, it breaks down into a bundle of national patents.”

And what about the Unitary patent and Unified Patent Court (UPC)?
“People have been talking about this for almost 50 years. Almost all the preparations had been done, so that it could finally be launched in 2017. That will not be happening now, which is a missed opportunity. With a unitary patent, you would have protection in all the affiliated EU Member States right away. And from then on you would be able to take action against infringement in almost the entire EU by initiating proceedings at the UPC, a new European patent court. The unitary patent, the UPC, and EU membership are therefore closely related. What the UK will be doing now is unclear. Participation of the UK is important, simply because it is a large country with a strong economy.”

A delay of a few years?
“Definitely, but it is actually also unclear if things will be going ahead at all. Germany still had to ratify the agreement and the UK still had to deposit its instrument of ratification. This would normally be a formality, but is now uncertain. On the other hand, the Netherlands deposited its instrument on 14 September. This means that preparations are still underway… However, I cannot guarantee that all the legal issues will be resolved quickly. Moreover, the UK can possibly continue participating in the UPC also after Brexit. Indeed, the UPC does not form a part of the EU and will also deal with legal cases concerning ordinary European patents. It is now being studied whether this is legally possible and politically feasible.”

And what about EU trademarks and designs?
“In the future, to protect your trademark or product design in the UK, you will have to file a national application. A transition scheme will probably be put in place to transfer the existing rights. One thing is certain: your protection will never lapse just like that.”

If you have a question or if you wish to discuss matters, please contact Peter de Lange at p.delange@vo.eu, tel. +31 20 530 79 97.

For the current status of the unitary patent and the UPC, please refer to our Dossier.

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