Grace period for patents in the United Kingdom?

Brexit is here, leaving its mark on patent law. Currently, there are two ways to obtain patent protection in the UK. Via a national or UK patent application and via a European patent application that is validated for the UK. In both cases, it is required that the subject matter of the patent application is new and inventive. This means that if the invention was disclosed to the public by the inventor or a third party prior to filing a patent application, it is no longer possible to obtain patent protection in a lawful manner.

The UK government recently announced its interest in joining the Trans-Pacific Partnership (CPTPP), which includes countries such as Japan, Canada, Australia and New Zealand. This partnership would not only have an impact on trade between member states, but also on existing UK patent law. The CPTPP partnership requires a 12-month grace period for publications by the inventor and/or a potential patent applicant. This means that if the inventor or subsequent patent applicant were to publish his invention before filing a patent application, he would still be entitled to a UK patent application for up to 12 months after this publication. Thus, the publication of the patent prior to the filing date would not hinder the patent application. This is a regulation which, incidentally, also exists in the United States.

However, the grace period would only affect UK patent applications. There are no corresponding regulations according to European patent law. This would enable, for example, that patent protection for a published invention would still be possible in the UK, but no longer in the rest of Europe. This raises the question of how this would affect the UK's membership of the European Patent Convention (EPC).

However, regardless of the possible changes of UK patent law, we always recommend filing a patent application as early as possible before publishing aspects of the invention, so that the desired patent protection does not have to be limited to certain countries and regions. Furthermore, it should be pointed out once again that a possible grace period only protects against publications by the inventor or the potential applicant. This means that publications by competitors may constitute prior art during a possible grace period, which can hinder the patent application.

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