Unitary patent after Brexit

On the 23rd of June the referendum on whether the United Kingdom should leave the EU ended with the victory of the “leave” camp. On account of migration and bureaucratic centralization a long-standing issue resurfaced, namely that the British wanted economic cooperation rather than a political union. However, this does not mean an immediate change in the law: the negotiations as a result of which the United Kingdom will be truly independent from the EU are expected to last for two years. Still, in the field of intellectual property law, Brexit is going to stand in the way of a long-planned project: the unitary patent.

The Unitary Patent (UP) was supposed to replace the traditional European patent progressed in leaps and bounds, encouraged by the popularity of the cost-effective unitary European trademark (EUTM). The establishment of this patent requires the support of at least 13 Member States, and the ratification of the most important countries (Germany, France and with the exit of the UK, Italy) is essential. Countries outside the EU cannot join the Unitary Patent system. While a European patent does exist already, after receiving it one still has to validate it in the offices of each nation. However, the result of the British referendum now constitutes a great obstacle in the path towards the UP, since the negotiations about it are not expected to go forward until the country truly leaves.

It is possible that regardless of its exit the UK will continue to support the establishment of the Unitary Patent Court (UPC) to try to smooth over the conflict with the EU. However, the law states that as an outsider, the most important part of the project, the UP will no longer apply to the UK. It is not likely that negotiations will go too well for the UK anyway, as the leaders of the EU do not want other Member States follow in the UK’s footsteps. As the head of the European Commission, Jean-Claude Juncker has stated with a tyrannical severity quite inappropriate for a democratic leader, “deserters will not be welcomed back with open arms”.

At the same time, as the UK, one of Europe’s most important markets leave the Union, the UP becomes less attractive, since to have patent protection in both regions one would have to pay for two legal procedures.