Brexit and European Patents

EPC map
EPC Member States

On 23 June 2016, a referendum over the United Kingdom’s membership of the European Union returned a vote of “Leave”. There is still no clear sign of what will happen as a result of this vote, but some statements about the future of European and UK patent law can be made.

The key question is what will happen to the relationship between the UK and the European Patent Office? What effect will Brexit have on patents granted by the EPO? The short answer is, reassuringly, absolutely nothing.

This fortunate clarity over the future of obtaining patent protection in Europe arises because the EPO is not an EU body, but a public, international organisation. The European Patent Convention is an international treaty between 38 different countries, far more than the membership of the EU, with countries from Turkey to Iceland being signatories to the EPC but not EU members.

The EPC came into effect in 1977 after almost 30 years of development and negotiations. The so-called “EPC 2000”, a mammoth overhaul of the system, took 7 years to formalise and did not come into effect until 2007. That this work will not all be lost as a result of Brexit is cause for a huge sigh of relief.

Possibly less fortunate is the proposed EU Patent. This is a movement, which can be traced back to the 1970s, for the EU to have its own Unitary Patent – a single right covering the whole of the EU – rather than the fragmented, national patents granted under the EPC. Serious work began on developing it in 2009 and major breakthroughs were made in just the last year or two.

The UK has a key part to play in bringing the Unitary Patent Convention into effect, being one of the top three EU countries in terms of granted European patents. Whether they will play their role or whether the whole system will now be put on hold until after Brexit actually takes place (assuming it ever does) is an open question.

Though the granting of patents in Europe and the UK will not be affected by Brexit, infringement and enforcement will be affected in many small ways. Various EU Directives and Regulations have attempted to harmonise the effect of granted patents across the EU, and it is yet to be seen which of those will remain effective in the UK in the long term. However, it can be expected that no major changes will take place.

Overall the message is Don’t Panic. Even with Brexit, the well-trod path to obtaining patent protection across Europe will remain in place. All that has changed is an indefinite delay to the planned super-highway that was to run alongside it.