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EU unitary patent not jeopardised by Brexit

The British Minister of State for Intellectual Property, Baroness Neville-Rolfe, has announced that the United Kingdom will ratify the legal provisions pertinent to the EU unitary patent despite the Brexit vote. Fears that the UK would leave this EU project after decades of development thus seem to have been allayed.

Background of the European unitary patent system

After multiple failed attempts, in 2012 the EU member states agreed – with the assistance of the UK – to create a unitary patent protection and implementation system for the EU territory. Unlike in the current system, which requires a separate patent for each individual state, a unitary patent will be effective for all of the participating member states. The European patent with unitary effect will be accompanied by a special patent court with its central chamber in London, which will rule on nullity and infringement proceedings relating to the unitary patent.
However, the EU unitary patent can only be established when at least 13 member states – including Germany, France and the UK – have ratified the relevant agreement. After the Brexit vote in June 2016 it was unclear how the UK would proceed in relation to this.  If Brexit had been completed before the UK ratified the agreement, it would likely have brought a premature end – once again – to the innovative unitary patent system.

Effects of ratification by the UK

With the announcement that the UK will ratify the agreement, the creation of the Unified Patent Court planned for 2017 seems for now to be secure. But it currently remains extremely unclear how the agreement on the Unified Patent Court in its current form would be affected by the UK’s subsequent exit from the EU. The relevant provisions imply in many places that only EU member states can be signatories to the patent court agreement. Special agreements with the EU would therefore be necessary for the UK to remain among the most important locations for patent disputes in the EU, and thus for the new system as a whole to remain attractive.

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