The Government has published technical notices detailing the possible effects of a ‘No-Deal’ Brexit on patents.
In the short term, UK patent law will remain largely unchanged in the event of a ‘No Deal’ scenario. Under the EU Withdrawal Act 2018, the relevant EU legislation will be retained in UK law, with existing systems remaining in place and operating independently from the EU. This will include legislation on supplementary protection certificates, which will form the basis of the UK’s own supplementary protection certificate regime post-Brexit. For UK, EU and third country businesses, there will be no significant change to the legal requirements or the application processes.
In the long term, a no deal Brexit may have significant implications for UK participation in the future Unified Patent Court and Unitary patent system, which, although not technically an EU institution, is designed for and currently will only consist of European Union members. The Unitary Patent Court is currently pending ratification by Germany, and may never come into effect. However, in the event that the Unitary Patent Court is ratified, it may not be possible for a United Kingdom to participate in a ‘no deal’ scenario.
As a result, businesses will not be able to use unitary patents to protect their inventions within the UK, although they will still be able to use the unitary patents to protect their inventions within the Unified Patent Court countries. In the event the UK joins the Unitary Patent Court and has to withdraw due to Brexit, any existing unitary patents will automatically give rise to patent protection within the UK.