Intellectual property

Will UK businesses still be able to benefit from unitary patents?

Considerable uncertainty exists over the ability of UK businesses to enjoy the benefits of unitary patents post-Brexit.

Currently, European patents granted by the European Patent Office (EPO) must be registered separately within each country in which a business wants protection. The patent application is processed as a single application but becomes a separate patent in each designated country. Protection of rights under each patent involves separate litigation in the national court of each country.

The Brexit result has delayed the introduction of the unitary patent, a short form for a European patent with unitary effect (EPUE). They will in future allow an approved European patent to be registered in up to 25 EU countries with a single unitary patent rather than maintaining individual patents in the countries where they operate, streamlining the process for lots of businesses.

Unitary patents will also enable companies to protect their rights in a far more manageable way, as they can only be challenged and defended in a single court action through the Unified Patent Court (UPC).

In short, they offer considerable benefits to UK businesses, for example, lower cost and more effective patent protection in EU markets, enhanced market opportunities within the single market and more incentives for innovation.

Before businesses can capitalise on this, the Unified Patent Court Agreement (UPCA) must be ratified by 13 member states including Germany, France and the UK. The UK Government has confirmed that it is proceeding with preparations to ratify, but the situation is now less clear cut with Brexit delaying its planned introduction in 2017. Whilst the UPC is not technically an EU body, unitary patents are only available to EU members and the UPC will apply EU Law. Given the Prime Minister’s statement that the Government will end the legislation that gives EU law supremacy in Britain, UPC’s legislative framework will have no jurisdiction in the UK after Brexit.

What does the future hold for the intellectual property of UK businesses?

Providing the UPC comes into force before the UK brexits, UK companies will be able to register unitary patents. What happens to the enforcement of rights granted under a unitary patent after Brexit is unclear.

UK companies filing unitary patents will be looking for transitional arrangements to be negotiated allowing them to register patents in individual countries in the event that they are unable to rely on the protection of unitary patents after Brexit.

Post-Brexit, the UK would presumably no longer be eligible to participate in the Unified Patent Court. Proceedings relating to the UK elements of unitary patents would need to be heard in the UK courts. Furthermore, unitary patents granted post-Brexit would not cover the UK, and those already granted would cease to apply in the UK. The Government is likely to introduce transitional arrangements allowing patentees to preserve their rights in the UK by way of supplemental national filings.

Until the position becomes clarified post-Brexit, UK companies filing patents for protection in the EU face a dilemma. Companies can either file a unitary patent in the expectation that protection will remain in force or file patents in individual countries accepting the increased costs of registration and litigation to protect their valuable intellectual property.

How we can help?

Whilst there is uncertainty regarding the UCPA, it is a case of ‘business as usual’ for companies operating in IP rich sectors. We can provide advice on:
  • IP valuation;
  • corporate restructuring to protect intellectual property rights;
  • licensing or selling IP;
  • tax planning and HMRC enquiries and investigations;
  • financial reporting;
  • IP securitisation;
  • quantum and liability for alleged IP infringement.