Updates

Potter Clarkson anticipates business as usual for its patent teams in the event of a British exit in the EU Referendum

03 May 2016

The UK is poised for an “in-out” referendum on European Union (EU) Membership which will take place on 23 June 2016.  A simple majority vote for “out” would see a British exit (so-called “Brexit”), which would be likely to be concluded within about two years.  In the meantime, a new Unitary Patent System and Unified Patent Court are expected to dramatically change the patent regime in the EU.  This raises the question of what a vote to leave the EU would mean for clients of our patent services under the old European patent regime, and in the advent of the new. 
 
We are pleased to confirm that, regardless of the outcome of the referendum, Potter Clarkson will continue to have full rights of representation before the European Patent Office (EPO).  We will also be able to obtain Unitary patents for our clients, and represent our clients before the Unified Patent Court.
 
Existing patent rights that are in force in the UK, obtained either nationally or via the EPO, would not be affected by a vote to leave the EU.
 
The main impact of a vote to leave the EU in the field of patents would be on whether Unitary patents would take effect in the UK, and whether classical European patents that are validated in the UK would be litigated in national courts or in the Unified Patent Court. 
 
EPO patents
 
The European Patent Office (EPO) is not an EU institution, but was created by the European Patent Convention (EPC) to examine and grant patents which can be validated, maintained and enforced as national patents in the EPC Contracting States.  The EPC has 38 Contracting States, which include EU Member States and non-EU Members including Switzerland and Norway; in addition the EPC has two extension states and two validation states in which European patents may be registered.
 
As an Association of European Patent Attorneys, Potter Clarkson would continue to be able to represent patent applicants and proprietors in all proceedings before the EPO.
 
It will remain possible to obtain a European patent via the EPO and validate it in the UK; and European patents validated in the UK will continue to have effect in the UK, irrespective of UK membership of the EU. 
 
UK national patents
 
A vote to leave the EU would have no impact on applications for national UK patents, which will continue to be examined and granted by the UK-IPO.  Our UK Chartered Patent Attorneys can continue to represent clients in all proceedings before the UK-IPO.
 
The Unitary Patent System
 
The Unitary Patent System is set to allow the grant of a single “European Patent with unitary effect” (Unitary patent) for a majority of EU Member States.
 
EU Regulation 1257/12 provides that a Unitary patent will be a European patent granted by the EPO under the rules and procedures of the EPC.  The EPO Rules relating to Unitary Patent Protection specifically refer to the EPC’s provisions for representation.  Therefore, once the Unitary Patent Regulation has come into force, Potter Clarkson will be able to obtain Unitary patents and act as representative throughout the patent life.
 
The future availability of the Unitary Patent System will not negate the availability of post-grant Opposition.  Potter Clarkson will continue to be able to represent proprietors and opponents in EPO Opposition proceedings.
 
If the UK were to leave the EU, a Unitary patent would not cover the UK.  However, it would still be possible to validate a European patent in the UK under the current (classical) procedure.   
 
The Unified Patent Court (UPC)
 
The Unified Patent Court (UPC) Agreement will create a single Unified Patent Court system for litigation in the participating EU states of both classical European patents and Unitary patents. 
 
The UPC Agreement allows appropriately qualified European Patent Attorneys to represent parties before the UPC.  Our European Patent Attorneys would not be barred from obtaining the necessary European Patent Litigation Certificate in order to represent parties before the UPC; indeed most are automatically eligible for the certificate and are expected to have it by the time the UPC opens its doors.
 
If the UK were to leave the EU, the UK Courts would continue to have jurisdiction over validity and infringement of classically validated European (UK) patents.  Thus, it might be necessary to have separate national proceedings in the UK alongside Unitary patent litigation. 

Conclusions
 
A UK departure from the EU would undoubtedly change the patent landscape in Europe, particularly as it relates to the jurisdiction of the anticipated Unified Patents Court to decide on cases relating to patent rights covering the UK.  However, obtaining patents in Europe would be unaffected and so we anticipate “business as usual” for Potter Clarkson’s European and UK Chartered Patent Attorneys in providing the full range of patent services that we currently provide.

If you require further information or have any questions concerning this, please do not hesitate to contact your normal Potter Clarkson representative.


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