25 September 2018

UK not patently clear on court post-Brexit

New guidance from UK government shows a change of heart on unified patent court under a 'no-deal' scenario.

The UK government has given new advice on the consequences for a 'no deal' exit from the European Union, conceding for the first time this could entail withdrawal from the embryonic 25-nation unified patent court.

‘no deal’

To date, the UK government has insisted the court, due to be partly based in London’s Aldgate Tower, was not an EU institution and therefore would be unaffected by Brexit. However, a notice from the Department for Business, Energy and Industrial Strategy now states that the UK will have to 'explore whether it would be possible to remain within the Unified Patent Court and unitary patent systems in a ‘no deal’ scenario'. The notice explains that if the Unified Patent Court comes into force and the UK needs to withdraw from both the Unified Patent Court and unitary patent, businesses will no longer be able to use the Unified Patent Court and unitary patent to protect their inventions within the UK. The advice states, 'if the Unified Patent Court is never fully ratified, the domestic legislation to bring it into force will never take effect in the UK.' The notice also states that ’only a few areas’ of UK patent law stem from EU legislation. However one important area relates to patented pharmaceutical products and agrochemicals where EU law provides for a supplementary protection certificates which grant an additional period of protection after a patent has run out.

Awaiting ratification

The Unified Patent Court, originally scheduled to open last year, is intended to provide an international patent court between 25 EU countries and allow businesses to enforce the new unitary patent system through a single court. Although not an EU institution it is open only to EU members, and the Court of Justice of the European Union will act as a court of final appeal in matters relating to European law. The note points out that there is still a possibility the court may not come into being in any case as ratification by Germany, which is subject to a court challenge, is still outstanding.