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Intellectual Property Rights & BREXIT

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Intellectual Property Rights & BREXIT

At time of drafting this note the final form of any exit by the UK from the EU is uncertain.

However, it is likely that the current legal regime for patents will not change: this regime is based on an independent treaty, the European Patent Convention (EPC), with 38 EU and non-EU contracting countries, and administered by the European Patent Office (EPO), which is a non-EU supranational agency. Put simply, whether the UK stays in the EU or not, its membership of the EPC is unaffected. European patent attorneys, even those based in the UK, will continue to represent clients and prosecute their applications/oppositions before the EPO, even if the UK exits the EU.

Other (future and additional) regimes for patents in Europe, which represent long-standing (but not yet implemented) plans for patent rights, notably the Unitary Patent and the Unified Patent Court, are, in contrast to the EPC, based on EU legislation or restrict eligibility to EU member states. The UK government has reaffirmed its commitment to the UP/UPC and to the UK’s continued participation in these structures – and has indeed invested heavily in London-based facilities for the UPC – but the exact nature of any Brexit may determine what level of involvement (if any) the UK can expect. At least for the UPC Agreement (and its annex on central divisions), a departure by the UK from the EU will necessitate amendments.

To the extent that the Unitary Patent will be a new species of EPO-granted patent (designation of a UP by the applicant leads to EU unitary patent protection), the prosecution/opposition procedure and the role of European patent attorneys, even those based in the UK, will remain largely unchanged by the introduction of the Unitary Patent. In post-grant procedures, practitioners at Angel IP, being European attorneys before the EPO and UK/ROI solicitors, will be able to act before UK courts, the EPO and the UPC, whether Brexit occurs or not.

Trademarks and design rights which exist as EU and national rights will be more impacted by Brexit than patents. Although still uncertain, the UK and EU currently envisage a transition period lasting to the end of 2020, during which EU rights will continue to be enforced by UK courts. After the transition period, the UK, which seeks to avoid a loss of rights for rights owners, foresees a system in which holders of EU rights which were granted by the EUIPO within the transition period could be entitled to a corresponding right for the territory of the UK after transition, thereby, in principle at least, providing continuity of rights. Nevertheless, much of the detail, like the rest of Brexit, has still to be worked out.

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