THE UNITARY PATENT (UP) AND UNIFIED PATENT COURT (UPC)

BACKGROUND

This week, the UK Government released multiple technical notes detailing the intellectual property implications of a no-deal Brexit for exhaustion of rights, patents, trademarks and designs, and copyright. A few months ago, the idea of a no-deal Brexit was only entertained as a highly unlikely, ‘worst-case scenario’. This series of notes provides an update on the government’s plan in light of a hard Brexit.

UPDATES

The UK has ratified the Unified Patent Court Agreement, but it still needs to be ratified by  Germany and it is unclear if this will occur before 29 March 2019.  If the UPC does not come into force, there will be no changes for UK and EU businesses at the point that the UK exits the EU.

If the UPC does come into force, the notice confirms that the Government will “explore whether it would be possible to remain within” the UPC and UP systems even in a hard Brexit scenario. If the UK has to withdraw from one or both systems, the notice envisages the following implications:

1. Businesses will no longer be able to use the UPC and UP systems to protect and enforce their inventions within the UK, but will be able to apply for domestic UK rights as they can now, via the UK Intellectual Property Office and the non-EU European Patent Office.
2. Existing UPs will give rise to equivalent UK patent protection to ensure continued protection in the UK. However the UP system only comes into force when the UPC is operational. It is therefore unlikely that UPs will exist before 29 March 2019.
3. UK businesses will still be able to use the UPC and UP systems to protect their inventions within the contracting EU countries. However in the UK, businesses will only have the option of protecting their inventions using national patents (including patents available from the European Patent Office) and UK courts.
4. UK businesses will still be open to litigation within the UPC based on actions they undertake within the contracting EU countries if they infringe existing rights.