Brexit’s Effect on European Patents
It’s official: the United Kingdom is leaving the European Union. While Brexit will have no effect on your U.S. patent (which protects your rights in the United States), as an inventor, you may be curious about how Brexit affects foreign patents, since many U.S. inventors have extended their patents by filing through the European Patent Office (EPO).
When you file a patent application with the European Patent Office, that entity examines it against the prior art available and determines what claims are allowed. Up to this point, the process is pretty similar to the patent application process in the United States.
Next, however, you must choose which countries in the European Patent Office you wish your examined and allowed patent to be ratified in. Note that not all countries that belong to the European Patent Office are part of the European Union. For example, Turkey belongs to the European Patent Office but is not a member of the European Union.
Once you choose the countries in which you want your patent to be ratified, you must send in an application, pay a fee and pay those countries your maintenance. If you’re applying for ratification in more than four countries, it’s more economical to seek a Unified European Patent, which ratifies your patent in all of the countries that belong to the European Union.
If you have a patent application that was allowed in the European Patent Office, then you could choose Great Britain, Turkey, Germany, France and a couple of other countries (perhaps Italy and Spain). You’ll then have patents in those individual countries. A Great Britain patent, for example, is the same regardless of whether you applied for it directly in Great Britain, applied through the Patent Cooperation Treaty or applied through the European Patent Office.
Yet another treaty established the European Unified Patent Court, which has jurisdiction over patents granted by members of the European Union. The Unified Patent Court is to be established by the end of 2017, while Great Britain is still in the European Union. The Unified Patent Court is where you sue someone for infringing your Unified European Patent for infringement in the European Union as well as patents that went through the original EPO system.
It is an open question whether Great Britain will be forced to withdraw from the Unified Patent Court when it withdraws from the European Union since they already signed the agreement forming the court. It will remain a member of the European Patent Office.
The withdrawal of Great Britain has raised these questions. The Unified European Patent is not scheduled to be in effect until 2018. The European Unified Patent Court is not on-stream.
We will wait and watch how this develops. If you have questions regarding Brexit and patents or would like more information on international patenting, contact me today.
Patricia P. Werschulz
Werschulz Patent Law, LLC
23 North Avenue East
Cranford, NJ 07016