The result of yesterday’s national referendum as to whether the UK should remain in or leave the European Union (EU) was announced this morning. The UK has decided to leave the EU.
This decision will have an effect on owners of rights granted by the EU Intellectual Property Office (EUIPO), but the full extent is not yet known and will be subject to negotiations conducted over the next 2 years as part of the UK’s exit from the EU. For now it is “business as usual”.
Owners of existing EUIPO trade mark and design rights should not lose out. Both the EU Trade Mark and EU Registered Design are unitary rights. When the UK does actually leave the EU those EUIPO rights will continue to be valid, but they will cease to have effect in the UK. However, transitional arrangements are expected to be put in place to “convert” existing EUIPO rights into equivalent national UK rights. It is impossible at this stage to know precisely what will happen, and we will continue to advise clients in this regard as necessary.
Patent, trade mark and design rights granted by the UK Intellectual Property Office (UK IPO) remain unaffected. There will also be no effect on the UK and European patent systems, since the European Patent Convention (EPC) is not an instrument of the EU. The UK will continue to be a contracting state of the EPC and UK patent attorneys will still be entitled to file and prosecute patent applications, and conduct oppositions and appeals at the European Patent Office (EPO). Granted European patents will continue to be valid in the UK. The rights of representation of patent and trade mark attorneys before UK courts are also unaffected.
Equally the UK’s membership of WIPO is unaffected, meaning that the ability to file and prosecute PCT applications and trade mark International Registrations (via the Madrid Protocol) for UK and overseas clients is essentially unchanged.
However, the vote is likely to affect the proposed Unitary Patent and Unified Patent Court (UPC), both of which were likely to come into effect next year. A key step in the enactment of both the Unitary Patent Regulation and the Unified Patent Court Agreement is UK government ratification, and it remains to be seen if the UK government will now do this, though that is thought to be unlikely. Consequently, the commencement of the Unitary Patent and the UPC are likely to be delayed.
Some other intellectual property rights, in particular Supplementary Protection Certificates (SPCs) for patents and which have their origins in EU regulations, could face an uncertain future in the UK unless the UK government enacts some form of equivalent legislation for future rights, or transition legislation in respect of existing rights.
Until the negotiations to determine the timing and procedural steps for the UK’s exit are completed, the UK will remain a member of the EU. We will continue to watch developments and advise our clients accordingly.