The European Patent Office is responsible for the application authorization process. After authorization by the European Patent Office, the European patent can be effective in all member states of the European Patent Organization, and its effectiveness in each member state is equivalent to a domestic invention patent of that country.
The European Patent Organization is an international organization covering 38 member states and is not an EU institution. In addition to all 28 members of the European Union, including the United Kingdom, the member states of the European Patent Organization also include 10 non-EU countries such as Switzerland, Norway, and Turkey.
Therefore, even after the UK officially withdraws from the EU, it can still obtain European patent authorization through the European Patent Office and take effect in the UK, so as to obtain protection equivalent to a British domestic invention patent in the UK.
Because the UK has joined the London Agreement, European patents do not require any translation or payment of official fees after authorization, and can automatically take effect and obtain protection in the UK.
European Single Patent and Unified Patent Court
After the current European patent comes into effect, it actually becomes a "bundle" of numerous independent patents governed by the domestic laws of each member state. right. The effective procedures, annual fee payment, rights change procedures, litigation procedures, etc. in each member state need to be carried out independently in accordance with the regulations of each member state.
In order to establish a patent system that is compatible with the EU's internal single market, on February 19, 2013, the ministers of the EU member states signed the "Unified Patent Court" ("Unified Patent Court", referred to as "Unified Patent Court") in Brussels on February 19, 2013. "UPC"), laying the foundation for the implementation of the unitary patent ("Unitary Patent") in Europe. Previously, the European Parliament passed two EU regulations on European unit patents on December 11, 2012 (one on the protection of unit patents, EU Regulation No. 1257/2012; the other on the language mechanism of unit patents, EU Regulation No. 1260/2012), which together with the Unified Patent Court Agreement form the legal document basis for the realization of a unitary patent.
A European unitary patent is also a European patent authorized in accordance with the European Patent Convention (EPC). The granting procedure and substantive granting conditions are the same as traditional European patents. However, after authorization, within one month from the announcement of the authorization, the right holder can request to obtain a European unitary patent, so that it will have uniform effectiveness in the member states participating in the unitary patent project, without the need to go to each member state separately as now. The annual fees and rights change procedures for a single patent will also be centrally managed by the European Patent Office, instead of being managed by the patent authorities of each member state after authorization as is currently the case.
According to Article 22(4) of the Regulation on the protection of unitary patents, only European patents granted on or after the date of application of the Regulation are eligible to request unitary patent protection. Therefore, whether a European patent application currently under review can obtain single patent protection depends most critically on the date of its authorization announcement. If the date of its authorization announcement is on or after the date when the above-mentioned regulations are applicable (that is, the date when the European unitary patent is officially implemented), you can request to obtain unitary patent protection.
According to Article 89 of the Agreement on the Unified Patent Court, the European Single Patent and the Unified Patent Court need to be established in the three member states with the highest number of European patent applications (currently France, Germany and the United Kingdom) It can be formally implemented only after approval by the parliaments of the 13 EU member states. At present, 10 EU member states, including France, have ratified the Agreement on the Unified Patent Court, but Germany and the United Kingdom have not yet ratified it. However, Germany has notified that it will ratify the Agreement on the Unified Patent Court in 2016. The European unitary patent, which was originally expected to be implemented in early 2017, now faces the biggest question: Will the UK ratify the agreement after the referendum decision to leave the EU?
If the UK Parliament approves the Unified Patent Court Agreement before formally leaving the EU, the European Single Patent and the EU Unified Patent Court will be implemented. However, the European unitary patent system is based on the "enhanced cooperation" mechanism of Article 20 of the Treaty on European Union and therefore only applies to EU member states. Therefore, after the UK officially withdraws from the EU, the UK will no longer be able to obtain the protection of a single patent.
However, because the "Unified Patent Court Agreement" is an international agreement independent of EU law and can also have jurisdiction over traditional European patents, after the British Parliament approves the agreement, even if it formally withdraws EU, the UK could theoretically still be a member of the Unified Patent Court Agreement if the agreement is appropriately amended. However, in practice it may be difficult for other member states to reach consensus on this.
Because it will take several years for the UK to formally withdraw from the EU, if the UK Parliament does not approve the agreement, according to the current legal documents developed to achieve a unitary patent (i.e. the previously mentioned "Unified Patent Court Agreement" and two EU Regulations), the European Unitary Patent and the EU Unified Patent Court will not be enforceable.
However, if the UK does not ratify the Agreement on the Unified Patent Court before formally withdrawing from the EU, Italy will take the place of the UK after it formally withdraws from the EU, joining Germany and France as EU countries applying for European patent rights. The three countries with the largest number of patents. By then, the European Single Patent and the Unified Patent Court will need to be approved by the parliaments of the 13 EU member states, including France, Germany and Italy, before they can be formally implemented (Italy has not yet ratified the agreement).
In addition, it is worth noting that Article 7, paragraph 2, of the current Unified Patent Court Agreement clearly stipulates that the first-instance central chambers of the future Unified Patent Court will be located in Paris, Munich and London. After the UK officially withdraws from the EU, whether the Central Court branch in London will be retained depends on whether the signatories of the agreement will decide to modify the agreement, such as changing the location of the branch to The Hague or Milan.
EU Design and EU Trademark
The last thing to mention briefly is the registered EU design ("Registered Community Design") and the EU trademark ("European Union Trade Mark") It is a single right for which the European Union Intellectual Property Office is responsible for applying for registration procedures. It has single effect throughout the EU and does not need to go to each member state to take effect after registration (different from the current European patent).
Because the UK is still a formal member of the EU, registered EU designs and EU trademarks are still valid in the UK. The current EU Design Regulation and EU Trademark Regulation do not provide corresponding provisions for member states to withdraw from the EU. After the UK officially withdraws from the EU, registered EU designs and EU trademarks will not be recognized as valid in the UK unless new legal mechanisms are introduced accordingly.
Author: Sun Yiming (HUASUN), German patent attorney, European patent attorney, European trademark and design attorney