The European Union (EU) is an economic and political partnership involving 28 European countries. It began after World War II, in large part because many Europeans felt that countries which trade and work closely with each other are less likely to go to war and attempt to invade their partner states. Now, the EU is about to lose an important member of this single market, which has allowed products and people to flow freely across national borders for many years. This is because last month, the United Kingdom (UK) held a voter referendum, and the majority of voters (52% to 48%) decided that the UK should leave the EU partnership.

There has been a lot of discussion regarding the expected fallout from the UK’s historic vote to leave the EU. One area of uncertainly relates to the effect its exit will have on the current European patent system and processes available to protect technology in the UK. In this blog post and podcast episode, Cloudigy Law’s Jennifer Atkins and Antigone Peyton go over presently available European and UK patent protection options and the highly anticipated Unitary Patent System, as well as what effect Brexit might have upon them.

The European Patent System

Currently, companies seeking UK patent protection can use the European Patent Convention (EPC) option. This patent process allows a company to file a single European Patent Application with the European Patent Office (EPO). The EPO will examine the application, and if the technology is found to be patentable, then a European Patent will be granted.

The EPO patent must then be validated in any country (such as the UK) that is a signatory to the EPC for the patent to be enforceable in that country. Validation involves a variety of requirements which differ from country to country. For some, a translation to one of the approved languages (such as French, Spanish, etc.) and payment of a national stage acceptance fee is required, among other things. Then there are the maintenance fees for keeping a patent alive in each country once it has been granted. Parts of this process are very expensive and cumbersome for patent owners, which is why the new Unitary Patent option described below is seen as an attractive alternative.

The European Patent is independent of the EU. The UK is a member of the European Patent Convention and Brexit does not affect its membership in this convention. As such, Brexit will not change the current European Patent system or the ability to use the EPO as the central filing and examination clearing center for a patent that is ultimately secured in the UK (after the national stage fee is paid).

United Kingdom Patent Applications

An applicant can also file a patent application directly with the UK’s Intellectual Property Office (IPO). The IPO will examine a UK patent application, and if they agree that its subject matter is patentable, then a UK patent will be issued. This is the option that companies usually pursue when they wish to file for patent protection in only one or a few EU countries. Generally, the UK examination process is faster than the EPO examination process, which is then followed by a national stage filing in the UK. Again, as is the case with the current European Patent system and EPO, Brexit will not affect patents that were obtained directly through the UK’s IPO.

Moreover, the UK is also a signatory to the independent Paris Convention Treaty (PCT), which provides important intellectual property rights and protections to all member countries. For instance, a patent application filed in one member country is entitled to the filing date benefits of a corresponding patent application previously filed in another member country, as long as the two applications are not filed more than 12 months apart. Currently, the Paris Convention Treaty has 176 member countries, including the United States. Patent applications filed with the UK’s IPO receive the PCT filing date ben...