On June 23 2016, the United Kingdom voted to end its membership in the European Union (EU).  The full effects of Britain exiting the EU are unlikely to be felt overnight, due to the significant period of time it will take to work out the legal formalities of the UK’s departure.  With relationships between the UK national system and European intellectual property systems now in jeopardy – how will this shift in the UK constitutional landscape impact intellectual property rights?

Brexit: What to expect

IP rights holders are being advised that the divorce of the United Kingdom from the EU will take a number of years, meaning it could be some time before seeing impact on IP.  Terms of separation must be negotiated before an official exit - there will be no immediate change to the effectiveness, enforceability or validity of any registered or unregistered IP rights in the UK or EU.

While exit terms are negotiated, EU laws will continue to be enforced in the UK and will be applied until the UK officially leaves the union.  Even in two years’ time – when the UK is expected to be independent of EU control – there are some types of IP rights that will not be affected by changes in the law:

  • UK registered and unregistered IP rights: as national IPRs these will remain intact
  • European Patents - including European (UK) patents - obtained from the European Patent Office will remain intact as they are not tied to EU membership

IP rights that are pan-EU in nature will remain in place until the date of the UK’s formal exit, but the post-Brexit status of these trademarks and patents will depend on the outcome of lengthy negotiations.

If the UK was able to negotiate membership with the European Economic Area (EEA) this could minimise the extent of changes to the current UK IP regime.  EEA membership would employ an intermediary process to maintain a status quo on EU Trade Marks (EUTMs) and EU Registered Designs (EURDs) – making it easier for the UK to maintain a relationship with the Unified Patent Court that demands EU membership.

What does this mean for the Unitary Patent?

The Unitary Patent (UP) is a new type of European patent valid in participating member states of the European Union.  Patent membership means a single renewal fee, single ownership and uniform protection - revocation as well as infringement proceeding will be decided for the patent as a whole rather than for each country individually.

The UK’s part in the UP and position in the Unified Patent Court (UPC) is dependent on EU membership.  Once Britain’s exit has been finalised, the UK will not be entitled to the benefits it provides – unless this can be granted.  If UPC status cannot be reaffirmed the UK will not be covered by a grant Unitary Patents where UK coverage is desired, a European or UK national patent will be needed instead.  The Unitary Patent Courts will no longer have a set-up in London.

The Unitary Patent was due to come into effect by mid-2017, but the recent referendum results are likely to delay this.  Remaining EU member countries will look for time to regroup and amend the Unitary Patent Agreement to no longer include the UK.

IP planning in post-Brexit UK

The UK is the first country to leave the EU and current literature can only predict the changes that might occur as a result.  Some IP professionals predict UK legislation could be introduced to convert the UK part of existing EU Trademarks (EUTM) and EU Registered Designs (EURD) into a UK national right - to ensure no IP rights are lost.  Others suspect the UK will be written out of the new Unitary Patent for not being an EU member, making IP management even more difficult.  For businesses planning and budgeting for UP registrations, now is the time to reassess strategies around pan-European protection.  Register UK IP rights now and do not wait for the outcome of negotiations relating to European registered IPRs.  The complete effect of the UK’s decision to exit the EU is unknown, and will be for some time.  UK businesses must now utilise their time in the EU’s ‘no man’s land’ to develop a strategy for IP rights whatever the result of negotiations may be.