Managing IP have reported that in a recent survey it conducted among more than 50 in-house counsel, 78% of respondents said a harmonised European patent system would still be useful if a post-Brexit UK were unable to participate. Those respondents were from industries (including banking, pharma, telecoms, automotive, software and chemicals) which tend to file in most jurisdictions, and the reason nearly all gave related to reduced costs and administrative streamlining of having a single patent for many jurisdictions.
The questions were apparently asked when there was an increased likelihood of a no-deal Brexit by 31 October 2019 (following Boris Johnson becoming Prime Minister), and in the context of views being expressed that the UK could not participate in the Unified Patent Court (UPC) system if that occurred. However, there are different views on the legality of the participation of a non-EU member state, and there is political will for the UK to participate – the UK Government has consistently confirmed that it intends to seek to remain in the UPC system after Brexit and that is supported by most other UPC signatory member states.
Following very recent events in the UK Parliament, a no-deal Brexit (at least by 31 October) is less likely. If Brexit does occur on 31 October and there is a withdrawal agreement with a transition period during which EU law continues to apply, then (subject to the German Constitutional Court dismissing the complaint about the legislation enabling Germany to ratify the UPC Agreement) it is likely that the UPC system could start in that transition period with the UK as a participant. If Brexit is postponed to 31 January 2020 (or later) and the German constitutional complaint has been dismissed before then, the Provisional Application Period of the UPC system could potentially start while the UK is still an EU member state. If the UK is able to participate in the UPC system initially, this should facilitate changes to allow it to continue.