In the various figures, projects or coordination processes relating European level to the Industrial and intellectual property undoubtedly the European Patent Effect Unit (better known as unitary patent) and the Unified Patent Court is expected to be much affected, as indicates our expert Carmen Sánchez-Puelles:
BREXIT EFFECTS FOR THE EUROPEAN PATENT WITH UNITARY EFFECT AND UNIFIED PATENT COURT
Once you know the result of the referendum in the UK, the first question we ask ourselves is the effect it could have its EXIT from U.E in the new patent system.
So far, we assumed the entry into force of unitary patent package in the imminent future, ie in 2017, coinciding practically with the entry into force of the new Patent Law in Spain. However, the new situation in which is situated the UK creates uncertainty about the future of the system.
Currently ten Member States, Austria, Belgium, Denmark, Finland, France, Luxembourg, Malta, Portugal, Sweden and Bulgaria have ratified the agreement.
For the new patent system to become operational, it would need only Britain and Germany, and an additional Member State to ratify the Agreement on the Unified Court.
However, despite the outcome of that referendum, it could still become reality the entry into force of this system of European patent with unitary effect, since now a two-year period is opened to negotiate the final exit of the U.E.
Therefore, we consider two possible scenarios:
a) If the United Kingdom ratify the Agreement on the Unified Patent Court, the unitary patent system could be implemented. However, because a non-EU member state can not be part of the unitary patent system, and the agreement of TUP does not include provisions relating to the exit of a Member State, this situation could lead to a possible relocation of the section of the central division of London, as what established by the Agreement is that the central division of the Court of First Instance will be based in Paris, with sections in London and Munich.
b) If the UK does not ratify the Agreement on the Unified Patent Court and the Agreement is not modified, the system of unitary patent could not enter into force until the UK leave the EU as Article 89.1 of the Agreement establishes that this Agreement will enter into force only if such tools are those of the three Member States which have had effects the highest number of European patents the year prior to the signing of the Agreement, namely, Germany, France and the UK. Therefore, when the UK leave the U.E, it could replace Italy as the third Member State, as it is the fourth largest number of European patents in the period before signing the agreement year. However, implementation of unitary patent system based in Italy as the third Member State mandatory for the ratification of the UPC could expand over time.
Therefore, and in view of the situation arising from the upcoming departure of the United Kingdom of the European Union, we must be very vigilant in the coming months to the news that on this issue they arise and their effect on the sector Industrial property.