Brad Scheller, a seasoned patent disputes expert from the American law firm Mintz Levin, sheds light on the impact of the Brexit on the European IP scenery, notably in terms of the UPC and unitary patent.
Leaders League. Will the Brexit help deepen Europe or rather weaken Europe?
Brad Scheller. In terms of patents, the UK will remain a patent market of its own, removing some cache from the soon-to-be Unitary Patent. But most practitioners will continue to realize the importance of protection across the European continent, so it is likely to be something of a stalemate in terms of strengthen v. weaken. Patent owners will still require protection in the UK in addition to the EU. As a continent, one can only hope that the nationalist fervor which leads to the ‘Leave’ vote will ebb and a genuine collaborative environment will prevail with a stand-alone UK.
Leaders League. How would you expect the UPC to organize now, considering that it is supposed to be structured with three parts from Germany, France and the UK?
B. S. The Courts of First Instance will have to be reorganized since there can no longer be a court in London. There are multiple options for what to do about this, with the least likely being an exception to the agreement to allow the UK to remain in the UPC.
Alternatively, either or both Paris and Munich could make a play to expand their courts. Germany could also make a play to have Frankfort take London’s place, using as a rationale the strength of its current patent courts and the fact that it files more than twice the number of European patents as any other EU member nation.
However, given that Germany, France and Brussels already have significant courts assigned, and the desire to make the Unified Patent Court pan-European, it is more likely that the EU will open the door for other active patenting nations such as Netherlands and Sweden to make proposals for hosting the third court.
Leaders League. How do you expect the IP scenery to evolve in the future, notably on the subject of unitary patent?
B. S. The unitary patent will provide the most comprehensive patent protection outside of the US, but will be devalued to an extent because of the UK exit. Patent owners with global intentions will still require protection throughout the EU and in the UK. The UK market is simply too important to ignore. Comprehensive European coverage will still be made easier through use of the unitary patent, although implementation may be delayed now. The most significant changes will occur in already-established European Community IP rights, including European Union trademarks (EUTMs) and European Community Designs, but mechanisms already exist to protect European patent rights in the UK.
Ultimately, even with all of the current hand-wringing, the IP scenery is not likely to change too dramatically.