What Brexit means for the Unitary Patent

As the shock-waves of Britain’s momentous decision to exit the EU reverberate through global financial markets, among the many far-reaching impacts in other spheres is the potential impact of the progress of the European Unitary patent and the establishment of the associated Unified Patent Court.

In 2012, EU countries and the European Parliament agreed on the ‘patent package’ – a legislative initiative consisting of two regulations and an international agreement that lay the ground for the creation of unitary patent protection in the EU.

The package consists of:

  • a Regulation creating a European patent with unitary effect ('unitary patent')
  • a Regulation establishing a language regime applicable to the unitary patent
  • an Agreement between EU countries to set up a single and specialised patent jurisdiction (the 'Unified Patent Court')”

Recall that for the Unitary Patent to take effect, it must be ratified by thirteen EU member states including the three member states who had the most European Patents the year before the agreement was signed. Yesterday that was Germany, France and the UK. Today, with the demise of the UK as an EU member state due to take effect within two years of the invocation of Article 50, that club of three will likely become Germany, France and Italy. France ratified on 14th March 2014, but Germany is still considering its position. Since Italy only joined the party in September of last year becoming the 26th member of the enhanced cooperation on Unitary Patent protection, it seems highly unlikely they will be in a position to ratify any time soon. So it seems likely that implementation of the Unitary patent is on hold for some time yet.

The position of the Unified Patent Court may also be affected. The UPC is established outside the framework of the EU and specifically excludes the participation of “third countries”1. As of yesterday the plan was for the UPC Court of First Instance to consist of a central division comprising three arms in Paris, Munich and London. Paris is to hear electrical subject matter, Munich mechanical subject matter and it was planned for London was to hear chemical/pharmaceutical cases. Local divisions will also be set up according to how much litigation is expected. On current litigation rates, these were likely to be at least UK, France, Germany and the Netherlands. It seems likely at the very least that these plans have just been thrown up in the air. And with the provision of the original agreement to exclude third countries, since the UK will in due course be outside the EU, does that exclude our participation in the UPC?

Only time will tell the answers to these and many more questions and uncertainties thrown up by the UK’s “Independence Day”.

  1. "The long road to unitary patent protection in Europe" (PDF). Council of the European Union. 17 December 2012.