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A. Will the UK be out of the European Patent Convention and the European Patent Office?

No – the European Patent Convention (EPC) is separate from the European Union (EU), and the European Patent Office (EPO) is not an EU institution. The member states of the European Patent Organisation include a number of countries that are not member states of the European Union, such as Albania, Switzerland, Liechtenstein, Iceland, Republic of Macedonia, Monaco, Norway, San Marino, Serbia, and Turkey. Thus, Brexit will not have any impact on the ability of applicants to obtain patents in the UK using the EPO.

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B. Can I still use UK based patent attorneys?

Yes – the rights of UK based European patent attorneys to file, prosecute, validate and oppose European patents before the EPO will remain unchanged. Similarly, UK based European patent attorneys will also be able to obtain Unitary Patents, when it comes into force.

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C. Will the referendum result have an impact on my European patent, which is currently in force in the UK?

No ¬– the patent will continue to remain in force and its scope of protection will remain unchanged.

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D. Will there be any impact on pending applications, or on new patent applications filed at the EPO?

No – the filing and prosecution of European patent applications before the EPO will not be affected by Brexit. Applications will continue to designate the UK while they are pending, as they do at the moment. Once granted, the patent can be validated in the UK and in each of the designated states (as well as any designated extension states and validation states including requesting a Unitary Patent when available), such that it will have the same effect as national patents in each of those states.

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E. What will happen to the European patent with unitary effect (“Unitary Patent”) following Brexit?

The Unitary Patent has not yet come into effect, but (and if it is effected) it will provide a new type of right that will present another option for applicants to obtain patent protection in Europe that is in addition to the routes that currently exist, namely obtaining national patents and classical European patents. Unitary effect leading to a Unitary Patent is to be requested following grant of a European patent. A Unitary Patent will have effect in the participating member states of the EU, i.e. not necessarily all the member states of the EU (e.g. Croatia, Poland and Spain are not participating in the enhanced cooperation of the UP at the time of writing). UK based European patent attorneys will be able to continue to represent clients who would like to obtain classical European patents or Unitary Patents.

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F. Will the Unitary Patent come into force?

Yes (probably) – however, the future of the Unitary Patent is uncertain following the recent referendum result, and its implementation may be delayed by several years since the UK is one of the three states that currently needs to ratify the treaty.

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G. Will a Unitary Patent provide protection in the UK?

We don’t know – if the UK is not a member state of the EU, then it might not be able to participate in the Unitary Patent. There have, however, been several proposals discussed that would enable the UK to participate in the Unitary Patent and the associated Unified Patent Court. If the UK does not participate in the Unitary Patent following Brexit, a Unitary Patent will not extend to the UK. Protection in the UK will have to be obtained through validation of a European patent in the UK or by filing a UK national patent application, i.e. as happens now.

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H. Will the Unified Patent Court have jurisdiction over the UK?

We don’t know – subject to the proposals mentioned above, that would allow the UK to participate in the Unitary Patent and the Unified Patent Court, the Unified Patent Court will not have jurisdiction over European patents validated in the UK and the Unitary Patent will not be effective in the UK. This will not impact on the ability of UK based European patent attorneys to obtain Unitary Patents for clients. For the avoidance of doubt, the Unified Patent Court will not have jurisdiction over national patents. This remains the case, even for states that are participating in the Unitary Patent and the Unified Patent Court.

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I. Will UK based European patent attorneys be able to act before the Unified Patent Court?

Yes – the rights of audience for UK based European patent attorneys will remain unchanged.

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J. I have Supplementary Protection Certificates (SPCs) – will they be affected by Brexit?

Don’t know – SPCs that are currently in force should not be affected by Brexit.

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