Intellectual property and the implications of Brexit

James Cornish, of European IP specialists Page White & Farrer explains that there will be no immediate change to IP rights. It will take two years, and probably longer, from the referendum for changes to occur and these are only likely to affect certain IP.

 

No change for European patent applications

The UK’s membership of the European patent system is independent of membership of the EU, and UK patent attorneys can still prosecute European patent applications for all UK and overseas clients. European patent applicants will not lose any rights and patents already obtained via the European Patent Office are unaffected.

 

Patent application work under the Patent Cooperation Treaty (PCT) is not affected

The UK’s membership of WIPO is independent of membership of the EU and PCT patent applicants will not lose any rights. UK patent attorneys can still prosecute PCT patent applications for all UK and overseas clients.

 

The future of the Unitary Patent and the Unitary Patent Court (UPC)

You may have heard of the planned ‘Unitary Patent’, a system for a unitary EU patent which was hoped to be launched mid-2017. This is now likely to be delayed by at least two years. In any case, if and when this comes into force, the EU would effectively become a member state of the EPC along with the UK, Switzerland, Norway, Turkey, etc. Hence UK attorneys would still be able to file and prosecute European patent applications that will have effect in both the UK and the EU (as well as Switzerland, Norway, Turkey, etc.)

 

EU trade mark and EU registered designs can still be filed

When the UK leaves the EU, at that time it is likely that EU trade mark registrations will no longer extend to the UK.

 

However, it is highly likely that there will be a procedure for converting EU trademarks into UK national trade marks. Even after the system is changed, UK trade mark attorneys can continue to deal with EU trade mark and EU registered design rights assuming they have:
• the necessary presence in the EU;
• Government negotiations result in their retaining these rights; or
• the UK joins the EEA.

 

UK IP rights remain entirely unaffected

It almost goes without saying, but all UK national IP rights are unaffected, and the rights of representation before UK courts are unaffected.

 

What happens next?

The UK will not immediately cease to be a member of the EU. The terms of the UK’s exit will need to be negotiated and some estimates suggest that this could take up to two years, if not longer.

 

UK and overseas IP owners will not lose any IP rights or any access to EU IP registration systems.

 

EU-wide customs watches will continue to extend to the UK, whilst it remains in the EU.

 

This briefing is for general information purposes only and should not be used as a substitute for legal advice relating to your particular circumstances. We can discuss specific issues and facts on an individual basis and answer any questions you receive from others about Brexit. Please note that the law may have changed since the date this was first published in June 2016.