The British public is due to vote on a potential ‘Brexit’ (British Exit) of the EU on 23 June 2016. Initial polls suggested that an exit vote would be unlikely, but the Leave campaign has grown in prominence in recent weeks. But what would Brexit mean for a company’s European IP rights?
The referendum on whether the UK should remain part of the European Union will be held on 23 June 2016. This means that we could wake up on 24 June 2016 and find that a majority of the UK population has voted to leave the European Union, and therefore the process of withdrawing from the EU will start. In short, if the UK decides to leave the European Union on 23 June 2016, there will be no change to the current way in which patents can be obtained, maintained or litigated in the UK.
However, in the future, if the Unitary Patent and Unified Patent Court (UPC) system come into being, this alternative way of having a European Patent covering the UK and an alternative Court for litigation of patents covering the UK will not become available, as the Unitary Patent System would then not apply to the UK.
What will it mean for the Unitary Patent? For the (already much delayed) Unitary Patent system to go ahead, it must be ratified by the three EU members who hold the most European Patents – currently the UK, Germany and France. If the UK leaves the EU following the referendum, it can no longer ratify the process. (The UK IPO has already mentioned that the UPC Agreement will probably be voted upon only after the British EU referendum.)
In principal, however, this would not be an issue as either Italy or the Netherlands could take the UK’s place in the process. A Brexit vote would therefore not kill the UPC Agreement, but simply delay the process.
If the UK leaves the EU and, as a consequence, the Unitary Patent system, there will also likely be lobbying by several contracting parties to take the Central (Court) Division away from London. Brussels appears to be a main, neutral candidate. (Find out more about the proposed Unitary Patent)
What will it mean for the European Patent? A Brexit vote will not mean the UK ceases to be a member state of the European Patent Convention (EPC) that established the European Patent (EP) system. The EPC is not a direct instrument of the EU legislature: it is a multilateral treaty agreed by the member states that are signatories to it.
At present there are 38 member states of the EPC and only 28 member states of the EU. Should a Brexit occur, the UK would become one of the EPC member states that is not an EU member.
Even after Brexit, clients will be able to file an EP application designating the UK. English will continue to be an official language of the EPC (unless the convention is amended – there has been no suggestion this will occur).
The UK has no special validation requirements beyond those of the EPC: there is no official fee to validate in the UK and validation occurs automatically provided the EPC requirements are met, so it seems likely there will be little impact on EP validations into the UK.
