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.
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.
No ¬– the patent will continue to remain in force and its scope of protection will remain unchanged.
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.
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.
Yes – entry into force is expected later this year. However, due to ongoing court challenges to Germany’s ratification of the Unified Patent Court Agreement, implementation could be further delayed, as Germany is one of the states that need to ratify the treaty.
We don’t know – The UK ratified the Unified Patent Court Agreement in 2018 and expressed its intention to stay in the Unitary Patent system post-Brexit. However, whether and how this will happen is still uncertain. 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.
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.
Yes – the rights of audience for UK based European patent attorneys will remain unchanged.
No – If you have an SPC that has already taken effect, it will remain in effect after the end of the transition period. SPCs granted but not yet in force will come into force at the end of the associated patent term as normal. If you have a pending application for an SPC, it will continue to progress. You will not need to refile.