Brexit: now that Article 50 has been triggered

Brexit: now that Article 50 has been triggered, what are the implications for your intellectual property rights?

04.04.2017

On March 29, Theresa May formally notified the European Union of the UK’s intention to withdraw from the EU. The UK Government now begins the lengthy and uncharted process of negotiating the terms of our exit with our European partners.

Initially, there will be no change as the UK will remain an EU member until the process has been completed, which is estimated to be at least two years, possibly considerably longer. In the short term, our message to you is ‘business as usual’. We would advise that you hold fire on making any hasty decisions until there is more clarity.

Here’s a brief run-down of the implications for intellectual property rights in Europe when the UK does finally exit.

Patents


Brexit will have no effect on the usual system for European Patents. We may be leaving the EU but we’re still in Europe, so the UK will continue to be a member of the European Patent Organisation which is a separate body from the EU.

UK patent protection will continue to be available via the European Patent Office by validating granted European patents in the UK after grant. The European Patent Convention will continue to be part of UK law, and our European patent attorneys will continue to act in the usual way in all matters before the EPO.

Trade marks and registered designs


In the case of European Union Trade Marks (EUTMs) and Registered Community Designs (RCDs), nothing will change until the leaving process is complete, so the impact of Brexit will depend on the outcome of the negotiations. Until that point, EUTMs and RCDs remain in force and cover the United Kingdom. We fully expect that EUTM holders will not lose their UK rights, and we will monitor the situation closely and keep you informed. Our advice is to review your EUTM portfolio to identify those trade marks of most value to your UK business and consider refiling in the UK. National UK intellectual property rights, including trade marks and designs, will, of course, be unaffected.

IP Agreements


If you have IP agreements with other parties, we would urge you to start checking these agreements for any potential implications in light of the UK exit.

The Unitary Patent and Unified Patent Court


The current intention is for the UK to remain part of the system. The UK Minister for IP has said that the UK will ratify the implementation of the UPC, and this is already underway. We advise that clients plan for the arrival of the UP and UPC with a view to being ready to use UPs and make UPC opt-out decisions during 2017. Brexit will not affect our ability to continue to represent our clients as we always have done, and file and prosecute European patents, UPs, or to litigate in the UPC. As Qualified European Patent Attorneys we have rights of representation before the European Patent Office alongside the Unified Patent Court.

Summary


As European IP specialists, we are closely monitoring developments and will keep you updated as the situation progresses. We will continue to represent our clients in all European IP matters where we currently advise you, and provide the usual high levels of service and support.
In terms of IP it is important to differentiate the terms EU and Europe. European patents cover territories which are quite different to the member states of the EU. For example Turkey is a full member state of the European Patent Convention but is not and never has been a member state of the EU. As such it is very much ‘business as usual’ in terms of patent protection and litigation.

Please do not hesitate to get in touch with your Chapman & Co advisor if you have any questions or need additional information.

 
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