On June 23, 2016, the UK voted to leave the European Union (EU). There is little doubt that Great Britain’s choice to leave the EU (BREXIT) will have a major impact on business and commerce. The European patent landscape will in no way be immune from this decision.
Currently, an inventor may obtain a grouping of patents in up to 38 European countries through a single application filed with the European Patent Organization (EPO). The patents granted through this system do, however, operate as separate patents on a per country basis. Thus the owner, in order to protect his/her rights, is required to file actions in each separate country in order to secure rights in each country.
Forecasted to be put into motion in early 2017, the European Unitary Patent (UP) and the United Patent Court (UPC) were to serve as the answer to a decades long discussion about enacting a unified system. The UP was devised to give inventions uniform patent protection across 26 of the Member States of the EU (Croatia and Spain were not included). This would allow the holder of a Unitary Patent to defend his/her rights by filing one action in the UPC. The biggest countries in the European patent arena-France, Germany, and the UK – were to be home to the three main locations of the UPC. In addition, French, German, and English would be the only three languages in which a UP would be prosecuted. This would streamline many processes and would lower the costs of obtaining and defending a European patent.
With the UK departing from the EU, it is important to consider the fate of the UP and the UPC. The short answer is that no one really knows for sure. There are many factors to consider in predicting the fate of the UP/UPC. For instance, the UK has not passed the treaty to be a part of the UPC. It is now unlikely that they will vote to pass it in light of the BREXIT vote. Even if the UK did ratify the treaty, as it stands, only members of the EU may participate in the UPC. Thus, without revision of the treaty, it stands to reason that once the UK withdraws from the EU, it must also withdraw from the UPC. There is a two-year interim period provided for Member States who exit the EU. This would allow the UK to be a part of the UPC for a short window of time, which may not be beneficial or cost effective for them when they know they will be exiting.
Alternatively, the UPC could exist separately from the UK, with the other Member Countries of the EU forming the UPC and the UK being independent from it. Ultimately, this will involve a cost/benefit analysis by the remaining EU members to determine how much they would value UK’s inclusion in the UPC. The UPC would lose the experience and resources that the UK and British judges bring to the table. This, of course, assumes that the UK would even want to be a part of the UPC, which remains to be seen. One would expect a significant amount of politics to play in this decision and at this point it remains unclear if such political hurdles could be overcome, even if the EU and the UK valued UK’s inclusion in the UPC.
In addition, the entire UP/UPC system could be scrapped. This would likely be viewed as a pretty significant loss, especially by the inventors and companies looking forward to a unified European patent regime.
The fate of the UP/UPC is certainly in doubt in the wake of the BREXIT vote. There are many different paths the UP/UPC could take, from existing without the UK, to having the UK be a part of it for a limited time, to restructuring the treaty so they may be a part of the UPC without being a member of the EU, to simply dissolving. In any event, it is highly likely that the enactment of the UP/UPC will experience a significant delay.