Brexit threatens unitary EU patent – attorney

Europe’s proposals for a unitary patent scheme are unlikely to go ahead following Brexit, a patent attorney has told pharmaphorum.

Fiona Stevens, partner at Gill Jennings & Every, is one of many in the profession who think that the referendum vote on 23 June has jeopardised the project to create a single patent system, to replace the existing arrangements where many national patents are bundled together.

Expected benefits of the scheme are a single fee paid across the 25 countries that have signed up to the new arrangements.

The UK was expected to play a key role, as a court dealing with chemistry cases, including pharmaceuticals, is slated to be in London.

But these plans have been thrown into serious doubt because of Brexit, and Stevens argued that as the UK has until now been one of the major supporters of the scheme, the whole venture could now be ditched.

Stevens told pharmaphorum that Brexit threatens the project in its entirety – the creation of a unitary patent court and a unitary patent.

“I don’t think either will have enough support to go ahead,” said Stevens.

The UK has its own national patent system, entirely independent from the EU – meaning that these rights could become more important if the unitary patent project does progress.

In this situation, Stevens said she would advise clients against using a unitary patent if there is an alternative.

A major drawback for pharma is that if a unitary patent is invalidated, competitors are free to market rivals across all the countries that it covers.

Others have argued that the UK could still play a part in the unitary patent scheme despite Brexit.

Helen Cline, legal director at Pinsent Masons, said if pharma wants the UK to remain part of the unitary system, it must push patents up the political agenda and propose a system allowing the UK outside the EU to participate.

However she warned: “A solution that proposes that the UK ratifies the UPC agreement now and then negotiates how it will remain in the system post Brexit is, however, probably a non-starter.

“Outside the EU, the UK would be free to offer better incentives to pharma companies. These could include patent incentives such as a longer SPC period or perhaps novel data exclusivity periods.

“However, with no sign of pressure on medicines’ pricing abating anytime soon, these forms of incentive look unrealistic. More likely are improved tax incentives.”

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