Brexit

Posted on 30 March 2021

The existing regime for obtaining patent protection via a UK patent granted by the UK Intellectual Property Office (UKIPO) or for a European Patent designating the UK via the European Patent Office has not changed following the end of the Brexit transition period. The UK is a participating member state of the European Patent Convention and this continues to be the case after 1 January 2021. 

Further, to the fairly limited extent that EU law has harmonised aspects of patent law and practice – e.g., relating to the conditions for patenting biotechnological inventions and certain exemptions for pharmaceutical product testing – these laws continue to apply in the UK, as they have already been implemented into UK law.

Unitary Patent and Unified Patent Court

Perhaps the most significant impact of Brexit on patent protection and enforcement concerns the likelihood of the long-anticipated Unitary Patent and Unified Patent Court (UPC) coming into effect in the EU. In July 2020, it was announced that the UK would not seek to be involved, on the basis that participation in a court applying EU law, and bound by the European Court of Justice (CJEU), would be 'inconsistent' with its post-Brexit aim of being an 'independent self-governing nation'. 

In the meantime, a challenge to the UPC Agreement before the German Constitutional Court led to the ratification process recommencing in Germany. Whilst the UPC Preparatory Committee noted with approval in November 2020, the Bundestag's vote to approve the legislation for the UPC Agreement and its Protocol on provisional application, the ratification process is once more on hold following fresh challenges filed in December 2020. Milan meanwhile appears to be the favourite to take the coveted life sciences seat (previously allocated to London) in the UPC's Central Division. 

Supplementary Protection Certificates (SPCs)

Whilst SPCs operate as national rights, they derive from the EU's SPC Regulation – this legislation has been retained in UK law, but adapted for the UK context. Accordingly, the general approach to SPCs in the UK remains the same, albeit with some important points of detail to note. Generally, it is well-known that the SPC Regulation is a much-criticised piece of EU legislation, having been the subject of a number of referrals for interpretation, including from the UK Courts, to the CJEU in recent years. It seems likely that, no longer constrained by the CJEU's approach, the UK Courts will welcome the opportunity to consider afresh the approach to certain issues relating to SPCs.

Changes have also been needed to the SPC system to take account of the Northern Ireland (NI) protocol. Under the protocol, NI is still bound by EU law for the authorisation of medicines and plant protection products. Accordingly, there will be separate marketing authorisations for NI and for GB (England, Scotland, Wales) and also for the whole of the UK.

The SPC remains a UK-wide right, so there will not be separate SPCs for GB and NI. However, the Government has introduced legislation which will allow an SPC to be granted based on whichever GB/UK/NI authorisation or combination of authorisations the applicant has at the time of its application - but the protection of the SPC will extend only to the territory where the authorisation relied upon allows the product to be sold.

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