Monday, 20 June 2016

Brexit and unitary patent

“Should the United Kingdom remain a member of the European Union or leave the European Union?” that is the question facing the United Kingdom coming Thursday, June 23. As BenoĆ®t Battistelli said, “If the ‘out’ vote wins then we have a big question mark—nobody knows what will happen”. We can make a few speculations though on the consequences of a 'leave' vote for the unitary patent.

Can the unitary patent system still get started?

There are basically two scenarios in which the unitary patent system can still get started if the UK were to leave the EU.

The first possibility is that after a leave vote, the UK will remain a member of the EU for several years to come. During that time the UK could ratify the agreement on a unified patent court. If that happens, and the unified patent picks up two further ratifications (which seems likely), the unitary patent is on its way. After that the UK can leave the EU, but the unitary patent will continue. An upside for the UK is that it would get a more cost-efficient way to get patent protection on the continent. A downside, is that they would have to leave the agreement on a unified patent court, right after ratifying it.

In this way, the unitary patent system could theoretically come into force without delay. However, I can't imagine that unitary patents will be high on the political agenda in the turmoil following a leave-vote. So at least some delay may still happen.

The other possibility is that the UK will not ratify the agreement. After the UK has formally left the EU, the next largest patent country after Germany and France could ratify the agreement and make the agreement enter into force. The agreement does not explicitly refer to the UK when it discusses the requirements for entry into force. Article 89 (entry into force) refers to "the three Member States in which the highest number of European patents had effect in the year preceding the year in which the signature of the Agreement takes place".  So if the UK leaves, some other country may take its place.

A problem with this scenario is that it can only take place if the UK has formally left the EU, which may take years. A significant delay will be the result. Probably, this will set back the unitary patent by years.

Interestingly, the required ratifications may happen before the UK leaves. This would mean that the unitary patent would come into force because the UK left the EU. This option could transpire, if three more counties beside the UK ratify.

If the unitary patent does enter into force, but the UK leaves, what would be different?
First of all, a unitary patent would not be valid in the UK. The unified patent court would not be competent in the UK.

It would still be possible to obtain patent protection in the UK. As the EPO is not an EU institute, a brexit would have no impact on EPO membership. Once a patent is granted at the EPO, the patent can be validated in the UK, just like in, say, Spain and Poland, while other countries may be covered by a unitary patent. National UK patents remain also a possibility.

Besides, the UK would lose its seat in the central division of the unified patent court. The UK had negotiated that part of the central court would go to London. If the UK is no longer an EU member, it cannot stay in the unitary patent either, and would have to give up this court. This also means that the agreement on a unified patent court probably needs amendment, as it refers explicitly to London. It is not known, if the London seat would go to another country, or if the central court be located in Paris and Munich only.

Photo "Bury St Edmunds 9th Annual Christmas Fayre 23-11-2012", by Karen Roe via Flickr under a CC-By license, no changes made.


  1. The last sentence should read: "...or if the central court be located in *Paris* and Munich only".

  2. Recently, Bulgaria ratified the UPC agreement as 10th country. The UPC will start 4 months after the 13th country has ratified. Currently, ratification of GB and DE is mandatory. If GB leaves, IT becomes the country which must ratify. IT is progressing to ratification. It appears that DE is waiting for GB to decide. One other country is needed to get unitary protection on the run.

  3. I'd say that the next country taking up the UK's privilege would be The Netherlands. If brits do not want to stay in the EU and enjoy the enhanced level of harmonization in IPRs and an integrated market then I'm pretty sure The Netherlands would take a full advantage of the system. After all, the EPO filing figures of the UK aren't that dramatically impressive as there's almost no industry left in that country. [1]