Brexit and the EU Patent Process: What happens now?

On June 23, 2016, Britain voted to leave the European Union (EU). This vote called “Brexit” (Britain + exit) will not take full effect for more than two years, but the uncertainty of its impact has many research institutions worried, especially those trying to secure their intellectual property rights in the European Union. This uncertainty casts serious doubt on the implementation of the long-awaited unified patent scheme, which is scheduled to commence in early 2017. (1)

Currently, patent applications are filed with the European Patent Office (EPO), which is independent from the EU. (2) The EPO grants the patent owner a bundle of patents, but the individual patents must be separately validated in each country where the owner seeks protection. (3) In the same vein, patent infringement claims must be litigated in each country where the owner alleges infringement has occurred, leading to excessive costs and inconsistent judgments across Europe. (4)

PortalgdaSince about 2012, Britain has played a large part in negotiating a new patent system. Under the proposed unified patent scheme, there would still be one application process through the EPO, but applicants would have the option to request that their patent be given unitary effect throughout the EU. (5) The EPO could grant a Unitary Patent, which would be automatically effective in every EU Member State and would be enforceable throughout the EU by a Unified Patent Court (UPC). (6)

If the scheme is not ratified, hopeful patent applicants, including Northeastern, would not see any substantial changes. As is currently the case, NU would continue to file for a bundle of patents with the EPO and the patents would have to be validated in each individual country where NU seeks protection.

If the unified patent scheme eventually passes without UK participation, Northeastern would file with the EPO for the Unitary Patent and then validate its classical European patent in the UK in order to secure its rights throughout the EU and the UK. Thus, it appears as though even without UK participation in the UPC, patent prosecution in Europe has the potential to get better — probably not worse.

Many research institutions are anxious about what Brexit will mean for their intellectual property pursuits in Europe; however, unless and until the unified patent scheme is renegotiated and ratified, Northeastern’s patent prosecution and litigation in Europe will remain unchanged. (7)

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Cover photo by TH Secret. All Rights Reserved.

Body photo by portalgda. Some Rights Reserved.

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