On 23rd June 2016, a referendum on the United Kingdom’s continued membership of the European Union resulted in a slender majority in favour of leaving. This short note will examine how this result will affect existing and future intellectual property rights in the UK and the rest of the EU.
The first point to grasp is that nothing will change immediately. The referendum merely marks the beginning of what is likely to be a lengthy process, which will involve both the passing of legislation by the UK parliament and the detailed negotiation of future relations with the remaining EU countries. This process may well take several years.
If and when the UK does ultimately withdraw from the EU, it seems likely that intellectual property rights will be affected in the following ways:
No change. The UK has its own well-established national patent system and is also a founder member of the European Patent Convention. The latter is not an EU institution and already has many members from outside the EU. These arrangements will not be affected at all by a UK withdrawal from the EU. Thus, European patents will continue to cover the UK and European Patent Attorneys in the UK will continue to have full rights to act before the European Patent Office.
However, there will certainly be an impact on the proposed new “European patent with unitary effect”, which is a proposal (not yet implemented) to provide a single patent having unitary character in some – but not all – EU states. Apart from the obvious point that such a patent would not be effective in the UK, post-withdrawal, the fact that the UK has been closely involved in the setting up of this system, and is supposed to be hosting a major division of the “Unified Patent Court”, means that implementation is likely to be considerably delayed, and possibly shelved indefinitely.
As with patents, the UK already has its own well-established trade mark registration system. It is also a member of the Madrid Protocol, enabling UK companies to obtain international trade mark registration via a streamlined procedure, and permitting applicants in other member countries to do likewise in the UK. These arrangements will not be affected by a UK withdrawal from the EU.
On the other hand, the position under the European Union Trade Mark (previously known as the “Community Trade Mark”) will necessarily change. At present, such registrations cover the whole of the EU, including the UK. The transitional arrangements will doubtless provide for a continuation of rights in the UK, either automatically or via a simple administrative procedure.
The position here is very similar to that in relation to trade marks. The UK already has its own national registration system, and is due to join the Hague Union international registration procedure in the near future. It is anticipated that rights under Registered Community Designs will continue in the UK, after the UK’s withdrawal from the EU, either automatically or via a simple administrative procedure.
Supplementary Protection Certificates
At present, Supplementary Protection Certificates for pharmaceuticals and plant protection products are granted in the UK under primary EU legislation. It is anticipated that existing SPCs will continue in force, following the UK’s withdrawal from the EU, and it is likely that similar national legislation will be enacted to enable the system to continue in the UK in the future.
Rest assured that we at Bromhead Johnson will keep fully up-to-date with all relevant developments in the coming months and years, so as to be able to advise you on the best possible way to maintain, maximise and defend your intellectual property rights, both during and after the UK’s departure from the EU. We shall endeavour to keep you informed of significant developments. If you have any questions on this, or any other IP-related issue, please contact the partner with whom you usually deal, or email email@example.com.