The European Patent Organization (EPO) is an international organization with 38 member countries, not an EU institution. The member countries of the European Patent Organization include all 28 member countries of the European Union, including Britain, and 65,438+00 non-EU countries, including Switzerland, Norway and Turkey.
Therefore, even after Britain formally withdraws from the EU, it can still take effect in the UK with the authorization of the European Patent Office, thus obtaining the protection equivalent to domestic invention patents in the UK.
Because Britain has joined the London Agreement, European patents can take effect automatically in Britain, and can be protected without any translation or official fees after authorization.
European court of single patent and unified patent
At present, European patents have actually become a "pile" of independent patents regulated by the domestic laws of member States after they take effect. The entry into force procedures, annual fee payment, right change procedures and litigation procedures of each member state need to be carried out independently according to the regulations of each member state.
In order to establish a patent system suitable for a unified market within the EU, ministers of EU member States signed the Unified Patent Court Agreement (UPC) in Brussels on February 19, 2065438, which laid the foundation for the implementation of a single patent in Europe. Prior to this, the European Parliament had adopted two EU regulations on European single patents on 201211(one on the protection of single patents, EU regulations1257/2012; Another language mechanism about single patent. 1260/20 12), together with the unified patent court agreement, constitutes the legal document basis for realizing a single patent.
European single patent is also a European patent authorized by the European Patent Convention (EPC). Its licensing procedures and substantive licensing conditions are the same as those of traditional European patents. However, after authorization, within one month from the date of authorization announcement, the obligee can request to obtain a single patent in Europe, so that it has unified effect among the member States participating in a single patent project, without going to each member state to take effect separately as it is now. The annual fee of individual patents and the procedure for changing rights will also be managed by the European agency, instead of being managed by the patent authorities of member States after authorization as it is now.
According to Article 22 (4) of the Single Patent Protection Ordinance, only European patents authorized on or after the application date of the Ordinance are eligible to apply for single patent protection. Therefore, whether the European patent application currently under trial can be protected by a single patent depends on the date of its authorization announcement. If the date of its authorization announcement is on or after the above-mentioned applicable date (that is, the date of formal implementation of the European single patent), you can request the protection of a single patent.
According to Article 89 of the Agreement on the Unified Patent Court, the European single patent and the unified patent court need to be approved by the parliaments of 13 EU member States, including the three member States with the largest number of European patent applications (currently France, Germany and the United Kingdom) before they can be formally implemented. At present, 10 EU member states, including France, have ratified the Unified Patent Court Agreement, but Germany and Britain have not yet ratified it. However, Germany has informed it that it will ratify the unified patent court agreement on 20 16. The biggest problem facing the European single patent, which was originally expected to be implemented in early 20 17, is whether the agreement will be approved after the British referendum decides to leave the European Union.
If the British Parliament approves the unified patent court agreement before the official Brexit, the European single patent and the European Union unified patent court will be implemented. The European single patent system is based on the mechanism of "strengthening cooperation" in Article 20 of the EU Treaty, so it is only applicable to EU member states. Therefore, after Britain formally withdraws from the EU, Britain will no longer be protected by a single patent.
However, because the Unified Patent Court Agreement is an international agreement independent of EU law, and it can also have jurisdiction over traditional European patents, Britain can still become a member of the Unified Patent Court Agreement in theory even if it formally withdraws from the EU after being approved by the British Parliament. However, in practice, it may be difficult for other member States to reach an agreement on this.
Because it will take several years for Britain to formally withdraw from the EU, if the British Parliament does not approve the agreement, according to the legal documents currently formulated to realize single patent (that is, the aforementioned agreement on the unified patent court and the two EU regulations), the European single patent and the EU unified patent court will not be implemented.
However, if Britain does not ratify the unified patent court agreement before the formal Brexit, Italy will replace Britain after the formal Brexit and become the three countries with the largest number of patents in Europe together with Germany and France. At that time, the European Single Patent and Unified Patent Court can only be formally implemented after it has been approved by the parliaments of 13 EU member states, including France, Germany and Italy (Italy has not ratified the agreement).
In addition, it is worth noting that the second paragraph of Article 7 of the Agreement on the Unified Patent Court clearly stipulates that the central court of first instance of the future unified patent court will be located in Paris, Munich and London. Whether the branch of the Central Court of London will be retained after the formal Brexit depends on whether the signatories of the agreement will decide to amend the agreement, such as changing the location of the branch to The Hague or Milan.
EU Design and EU Trademarks
Finally, I would like to mention briefly that registered community designs and EU trademarks are the sole right of the EU Intellectual Property Office to apply for registration, and they have a single effect throughout the EU, and they do not need to go to member countries to take effect after registration (unlike the current European patents).
Because Britain is still a full member of the European Union, registered EU designs and EU trademarks are still valid in Britain. At present, the EU Regulations on Designs and the EU Regulations on Trademarks have not made corresponding provisions for member States to withdraw from the EU. After Britain formally withdraws from the EU, registered EU designs and EU trademarks will not be recognized in the UK unless a new legal mechanism is introduced accordingly.
Authors: Sun Yiming, German patent lawyer, European patent lawyer, European trademark and design lawyer.