This is part of Out-Law's series of news and insights from Pinsent Masons experts on the impact of the UK's EU referendum. Watch our video on the issues facing businesses and sign up to receive our 'What next?' checklist.
Patent law specialist Deborah Bould of Pinsent Masons, the law firm behind Out-Law.com, said "the risk-benefit analysis of participating in the planned new unitary patent and Unified Patent Court (UPC) system could have changed for companies as a result of the UK's vote to leave the EU."
"Under the current framework, only full membership of the EU would allow the UK to participate in the unitary patent system", Bould said. "While it is possible that the UK could ratify the Unified Patent Court Agreement during the coming period in which the UK is expected to negotiate its exit from the EU, in my view it will not do so. This would run contrary to the UK public's vote."
Helen Cline of Pinsent Masons said that the currently proposed start dates for the unitary patent regime and operational opening of the UPC of early 2017 and spring 2017 respectively "look unrealistic" now in light of the result of the UK's referendum.
"Until the UPC Agreement is amended to substitute the UK as a required signatory the UPC would be in limbo," Cline said.
London is due to host one of the central divisions of the UPC. That court would serve as a specialist forum for resolving disputes over patent rights in the area of life sciences. However, Cline said the plans for the UPC in London are likely to change unless the UK ratifies the UPC Agreement before exiting the EU.
Cline said: "Although it does not seem that the UK has to be an EU member state or a participating state in the unitary patent system to retain the life sciences court, it is unlikely that it would remain in London and there is likely to be a scramble by the other participating states to take over London’s position. Italy looks like it might be in pole position although the Netherlands is also a good candidate."
Bould said that attempts could be made to keep the UK within the unitary patent and UPC framework during the forthcoming renegotiations over the UK's relationship with the EU. She said unitary patent protection might be viewed as less attractive by some businesses if the UK does not participate in the system.
"Organisations operating in the UK could obtain unitary patents and may find themselves drawn into the UPC – European patents which have not been ‘opted out’ could be challenged there – and will have new choices and decisions to make about patent filing and litigation strategies," Bould said. "In the few areas where patent law is harmonised across the EU, during the negotiation phase, the UK could seek to limit uncertainty by repatriating these laws, where necessary, into UK law."
"In terms of patent registration and enforcement in the UK as currently practised there will be little impact," she said.