UK Patent Law after Brexit
Across European jurisdictions, including the United Kingdom, patents enjoy different kinds of protection – either national, granted by national authorities or European, which comprises an assortment of nationally enforceable patents in jurisdictions selected by the applicant (out of 38 European countries). The still-awaited unitary patent is designed as a unique form of European patent in countries that have ratified the UPC Agreement and is based on a single registration process.
Current UK patent legislation has been modified to be aligned with the European Patent Convention (EPC). UK national patents are granted by the UK Intellectual Property Office (UK IPO). To obtain a European patent the patent owner needs to apply to the European Patent Office (EPO) under the EPC;
however, Brexit has made the European and Unitary Patent application process hazy.
Patents grant a monopoly right to the inventor over new inventions that involve an inventive step and are capable of industrial application. This gives inventors the right to prevent others from using, making or otherwise exploiting their invention unless permission has been given to do so. Registering the patent with a designated authority was implemented to ease protection and enforcement of patents. Patent protection is granted for a limited period of time – normally 20 years from the filing date.
The UK left the EU on 31 January 2020, with a transition period from 1 February 2020 until 31 December 2020. There will be no changes to the current patent law system during this period, and EU law continues to operate in the same way. According to the UK Government's guidance on patent law, any changes will come into effect at the end of the transition period – i.e. from 1 January 2021.
National UK Patents
Applicants can continue to apply for national UK patents with the UK IPO, which will continue granting patents under the same requirements and processes as before Brexit. Pending UK patent applications will continue to be assessed by the UK IPO after the end of the transition period on the same basis as currently in force. Rights granted by the UK IPO and any rights and licences which were in force before Brexit also remain unchanged after the end of the transition period. In short, Brexit has no impact on the UK national patent application and registration systems.
While no unitary EU patent exists as of yet, some aspects of patent law have been coordinated at the EU level, and current EU legislation will be adopted into UK law (with appropriate modifications) in accordance with the Patent Regulations after the end of the transition period so that current systems and processes are maintained.
Thus, applicants intending to submit applications to the EPO can still obtain a patent in the UK, and existing patents granted under an EPO application will not be affected after the end of the transition period. Since the EPO is not an EU institution, the UK will remain a participating state of the European Patent Convention. Therefore, Brexit will not have a direct effect on the European patent system or existing European patents, including UK patents.
 The Patents (Amendment) (EU Exit) Regulations 2019
Unitary patent protection is a simplified process for unified protection in 26 participating Member States, based on a single request submitted to the EPO. The effect of this unified request includes a single title, a single patent, a single registration process, a single (registration and renewal) fee and a single protection with the Unified Patent Court, which will have exclusive authority to resolve disputes on any infringements. The unitary patent will operate in parallel with the Europe-wide patent protection, broken down into national legal regulations and processes (although this is subject to certain harmonization and unification). Licensing will remain possible for a part or all of the unified territory. Unlike with the European patent, applications will be accepted in English, French or German, and there will be no further need for translations.
Although the Unitary Patent system was originally expected to start at the end of 2021, considering the effects of the Covid-19 pandemic, a delay is likely.
The UK's participation in the Unitary Patent system, which was anticipated under the EU Unitary Patent Regulation 1257/2012, remains unclear. That said, since the Unitary Patent system is exclusive to EU members, chances are this will be subject to negotiations on the UK's position after the transition period.
(This article is not intended to provide legal or other advice.)