Due to Brexit, the European unitary patent has failed as well. While there are theoretical scenarios of how it could still come into force, these will likely remain theoretical. It is simply inconceivable that a central division would be located in London and thus outside the EU. It also makes little sense to have the judicial system come into force, while the United Kingdom continues to be an EU Member State and to handle the withdrawal and the relocation of the London central division at a later time. Even if the UK were still to ratify the agreement – will Germany be doing so? Currently, very little evidence supports that theory.
In order to save the EU patent, renegotiations would have to be held. Among other things, it would have to be clarified where the central division, previously scheduled to be in London, would be located. Furthermore, it would have to be decided whether annual fees should be reduced because of a smaller territorial scope. It remains to be seen whether these negotiations will be successful or whether the sense of a European unitary patent is called into question as a whole.
On the other hand, a complete restart as a genuine Community patent is equally conceivable. Many of the complex rules on the EU unitary patent were based on compromises with divergent English legal traditions and British reservations about the strong role played by the Court of Justice of the European Union. Should these compromises no longer be necessary, the framework for a European revision of patent law will be different.
On Tuesday, we will provide an overview on “Brexit and IP” in brief conference calls. Registration is still possible, information is available at the end of this Patent Alert.
In view of Brexit, it is unfortunately only a side note that Bulgaria ratified the agreement as tenth Member State on June 03, 2016.