Attending an intellectual property law conference recently, the question on everybody’s mind was ‘How will Britain leaving the EU affect business as usual back in the UK’? In terms of patent law, it seems that Brexit will bring more radical change to the way Britain interacts with the rest of Europe than to its dealings with the rest of the world.

So what is the ‘Unitary Patent’?

For years, EU member states (Britain included) have tried to form a viable collective of patent courts and to create a single patent system.

Governed by the Unified Patent Court (UPC) agreement, the system would mean that a successful patent application would protect inventions across not just a single territory as is currently the case, but across all of the agreement’s signatory areas. Not only would the system bring about wider patent protection but it would be easier for patent holders to litigate if their patent was breached. The agreement sees the creation of several central courts, currently proposed to be in London, Paris and Munich. Each would rule on separate industry areas but on the same legal grounds and jurisdiction. Overall, the move to a unitary system and the creation of a unitary court makes the whole patenting process both easier and more transparent.

If you’ve invented the next must-have product or have a few designs that keep your business running, the system makes sense from a commercial point of view too. At present, the average cost of drafting a single patent application in the UK comes in at anywhere between £3,000 and £6,000 – and that only provides protection from patent infringement within one country! For around the same cost under the new system, you could be achieving more for your money and protecting your invention across multiple European jurisdictions.

All in all, the unitary patent system seems pretty favourable, so what’s the issue?

The Sticking Point

Even whilst the unitary patent system gets the green light from a business point of view, serious concerns over its future are raised by Britain’s impending exit from the EU.

The most glaring conflict between Brexit and the Unitary Patent system is that the Unified Patent Court agreement allows for a right of appeal to the European Court of Justice. Once Britain leaves the EU it will take control from the European central courts and cease to recognise the supremacy of EU law. At that stage, it would be impossible for the unitary system to operate as currently agreed as it’s unlikely that the UK would concede to be governed by the EU judicial machinery post-Brexit.

Outside of domestic concerns, the unitary system will more than likely face issues of its own on account of Brexit. For the current agreement to take effect it must be ratified by 13 states including the three most prominent patent issuers from the previous year. At present these states would be Britain, Germany and France. Taking the UK out of that equation presents a whole host of issues for the agreement. The three present leaders have comparatively similar patent systems whereas the introduction of Italy or the Netherlands (the next in line) would complicate matters.

New Ways Forward

It’s difficult to imagine how Britain could remain within the Unitary Patent system post-Brexit, and there are certainly some hurdles to overcome, yet Brexit doesn’t necessarily mean the end. Two possible arrangements have caught the eyes of intellectual property academics as a solution to the Unitary Patent system in a Europe without Britain:

• The UPC agreement gets a fresh approach and is redrafted to exclude the right of appeal to the European Court of Justice. This would allow for the UK (and possibly other non-EU member states) to become party to the agreement. Given the benefits that the UPC brings, and that the UK is one of the most desirable patent jurisdictions in the world, this would be a good option.The remaining countries negotiate a new UPC agreement that writes out the UK. This would be a long and drawn out process as the continent waits to see what form Brexit will take. The situation is complicated further by the fact that London plays host to a central division of the unified court – due to begin work in 2017. Despite all the difficulties this is also a viable option despite taking considerably more time to broker the deal.
• The remaining countries negotiate a new UPC agreement that writes out the UK. This would be a long and drawn out process as the continent waits to see what form Brexit will take. The situation is complicated further by the fact that London plays host to a central division of the unified court – due to begin work in 2017. Regardless of all the difficulties this is also a viable option despite taking considerably more time to broker the deal.

UK Patents: What Now?

In either scenario, it’s likely to be a while before progress is made towards a Unitary Patent system. If you’re a UK inventor, business or anybody seeking to patent your invention, that presents a degree of unwelcome uncertainty in the current political and economic climate.

As we have seen, filing for a UK patent can be an expensive undertaking, but you can take alternative action to protect your inventions.

Whilst the UK remains a part of the EU, the Trade Secrets Directive remains law and will probably remain as domestic legislation even after Brexit. Under the directive, certain relationships create an “obligation of confidence” which in plain English means that information given as a secret must be kept confidential. Anybody in breach of that term will then be liable to you for the associated losses. This approach is effective but can be complex – as is often the case with avoiding loss, don’t put all your eggs in one basket.

Alternatively, English contract law offers some protection for anyone seeking to defend their intellectual property rights. If only a few individuals need to know the details surrounding your invention, a non-disclosure agreement or confidentiality clause within a commercial contract can effectively swear all involved parties to secrecy – or face paying any damages resulting from a breach! This is an option accessible even to one-off inventors and one that will survive the test of time regardless of which path the UPC takes. If this is your scenario then give us a call to discuss how to protect your IP.

In any case, while Brexit proves to be an interesting challenge for the Unitary Patent System, it doesn’t have to be a death knell.

Callum Sommerton
Devant