A patent is a means of protecting an invention. For an invention to be patentable in the UK and Ireland, it must be:
- involve an inventive step (in the sense that the step which is required to achieve the invention is not one which would be obvious to a person skilled in that particular area of technology/science);
- be capable of industrial application; and
- not fall within an excluded category (which categories include things like methods for doing business and computer programmes).
Only UK patents are enforceable in the UK, and only Irish patents are enforceable in Ireland, but such patents may be obtained by:
- filing a patent application directly with the UK or Irish patent office respectively,
- filing an application with a receiving office under the Patent Co-operation Treaty (PCT) and including the UK and/or Ireland in the list of designated countries, or
- filing an application with the European Patent Office under the European Patent Convention (EPC) and including the UK and/or Ireland in the list of designated countries.
The entitlement to a UK and Irish patent is determined by who is the first to file the relevant patent application, and not by reference to who was the first to make the invention. A UK and Irish patent generally lasts for a maximum of 20 years from its filing date. However, in certain circumstances when a patent has expired the owner can seek to extend the protection under the patent for specific embodiments of that patent (this really only arises in cases of biological agents e.g. human or veterinary medicines which required a protracted regulatory approval even after a patent is granted). This extension of protection is called a Supplementary Protection Certificate (or “SPC”). An SPC can be extended for a maximum of 5 further years after a patent has expired.
Effect of Brexit on Patents:
Brexit will not affect the current European patent system, as it is governed by the (non-EU) European Patent Convention. UK businesses can continue to apply to the EPC for patent protection which will include the UK. Existing European patents covering the UK are also unaffected.
While the UK remains a full member of the EU, businesses can continue to apply for and be granted SPCs for patented pharmaceutical and plant protection products using the current SPC system. Existing UK SPCs granted under that system continue to be valid. Once the UK leaves the EU, UK businesses will still be able to apply for SPCs in all remaining EU Member States under the existing system.
However, uncertainty exists as to SPC protection in the UK post-Brexit.