Brexit: Potential Consequences for European Patents

On June 23, 2016, the citizens of the United Kingdom voted in favor of leaving the European Union. This is a monumental step which historians will analyze in order to understand why and how it became possible. In the meantime, lawyers will have to figure out the consequences, including how to untangle this 60 year-old relationship.

European patents should not be affected by Brexit because the European Patent Convention is not a European Union instrument. It currently has 38 Contracting States and some of them (for example Switzerland, Norway and Turkey) are not members of the European Union. There is little doubt that the UK will remain a Party to the European Patent Convention.

On the other hand, the “Unitary Patent” is a creation of the European Union and Brexit means that its entry into force, if we ever see it, will be considerably delayed. Article 89(1) of the Unified Patent Court Agreement provides that the Agreement cannot come into effect until it is ratified by the three EU Member States in which the highest number of European patents were in effect in the year preceding the year the agreeement was signed.  These three countries are Germany, France and the UK.  The UK has not yet ratified the UPC Agreement, and the UK’s vote to leave the EU makes ratification unlikely.

What are the next steps?

According to article 50 of the European Union (Lisbon) Treaty, the UK has to notify the European Council of its decision to withdraw, the Council will issue guidelines and a withdrawal agreement will be negotiated on that basis, taking account of the framework for the UK’s future relationship with the Union (in particular, the UK will have to decide whether it wants to rejoin the European Free Trade Agreement and trade with the EU via the European Economic Area). Then, the consent of the European Parliament will be sought and the agreement will be concluded by the Council. Given the number of issues that have to be dealt with, there is likely to be a long negotiation and transition period.

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