The Fate of Patents After Brexit

The Brexit vote will have a severe impact on many treaties, thankfully, the impact on the European Patent Convention (EPC) shall be minimal.  The EPC was signed in 1973 by participating states to streamline the patent process.

The terms and conditions of the EPC are independent of membership in the European Union, therefore the current framework for the EPC will proceed as normal.  The existing procedures from the European Patent Office (EPO) will stay the same.  The period for filing opposition proceedings for patents will stay the same. British patent attorneys admitted into the EPO would also still be able to represent applicants at the EPO.

However, future issues may be hindered or hampered by the Brexit vote.  Currently, the EPO Application is filed with a central office.  The EPO performs a prior-art search to give their opinion on unity, novelty and inventive step.  The patent-holder can then forward the European patent separately to the relevant member countries who must validate the patent in the domestic system.  From 2017 onwards, the European Unitary Patent (EUP) treaty may be executed. Once a Unitary patent is approved, it will automatically be enforceable in all the countries of the EU (except for Spain and  Croatia). Unfortunately, the EUP requires membership within the EU as a precondition for participation in the treaty. Currently, UK will not be eligible, separate approval will be necessary.

Unfortunately, for businesses, because of the recent Brexit vote, they will not be able to benefit from the EUP.  The EUP enables massive reduction in litigation costs against patent infringement.  The EUP will be litigated in the Unified Patent Court (UPC), which will serve as a central court whose decisions will be binding upon all member countries.  The UPC can issue injunctions that will be effective in all the member countries, greatly reducing litigation costs.  Furthermore, if a patent is invalidated by the UPC, it will be invalidated in all the EU member countries.

Sadly, now that Britain isn’t eligible for the UPC, patents will have to be separately invalidated in Britain.  EU patents will have to pass into the national phase for validation, and also litigate through the British court systems for invalidation and infringement.

About the Author

Babak Akhlaghi is a registered patent attorney and the Managing Director of NovoTech Patent Firm, where he helps technology companies build investor‑grade patent portfolios that support fundraising, defensibility, and long‑term competitive advantage. His practice centers on patent strategy, portfolio architecture, and high‑leverage drafting for companies developing AI, machine learning, quantum computing, advanced software‑driven systems, robotics, and other emerging technologies.

Babak is also a permanent Adjunct Professor at the University of Maryland, where he teaches Legal Aspects of Entrepreneurship, bringing real‑world IP strategy experience directly into the academic environment.

He is a co‑author of the Patent Applications Handbook, published annually by West Publications (Clark Boardman Division) since 1992, and widely used by practitioners as a technical and procedural reference.

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