Everything you
need to know about Brexit and how it affects your IP

The UK withdrew from the European Union (EU) on 31 January 2020 and is now in a transition period. During the transition period the UK will be treated as if it were a member of the EU and as a consequence the status quo for IP matters will be maintained. Although the future relationship between the UK and EU beyond the end of the transition period is still to be negotiated, there is now more certainty regarding the future as far as IP is concerned. Even in the case of no deal being reached between the UK and EU by the end of the transition period (a no-deal Brexit), the position as regards IP is unlikely to change. The transition period is currently expected to expire at the end of 31 December 2020.

The European Patent Convention (EPC) and the European Patent Office (EPO) are not instruments of the European Union. The creation of the EPC and the EPO pre-dates the establishment of the European Union in its current form by many years and the EPC signatories include several other countries that are not members of the EU. Whatever the shape of the UK 's long-term relationship with the EU, the UK will remain a member of the EPC.

After the end of the transition period, European Union Trade Mark (EUTM) and Registered Community Design (RCD) systems will no longer have territorial scope over the UK. In order to obtain protection in the UK, a separate UK Trade Mark application will need to be filed at the UKIPO. Regulations will come into force maintaining continuity of protection for those who own or have applied for EUTMs and RCDs.

The Regulations will also protect the ability to file comparable registrations to existing applications for EUTMs and RCDs at the UKIPO, with the benefit of the original filing date. Similar provisions will apply to Community Plant Variety Rights (CPVRs) and applications.

A Supplementary Protection Certificate (SPC) is a national right governed entirely by EU law providing an additional period of protection for patented pharmaceutical products and agrochemicals after patent expiry.

All existing SPC provisions will be retained in UK law and all existing rights and licences in force in the UK will remain. Pending UK SPC applications will also continue to be assessed on current criteria and it will be possible to file new applications.

The UK Government indicated in February 2020 that it will not seek to participate in the Unitary Patent (UP) system and the Unified Patent Court (UPC) after Brexit. Therefore the future of the UP/UPC is unclear at this stage, with a delay in ratification to be expected.

After Brexit, J A Kemp, with offices in the UK, France and Germany, will continue to be able to represent and act for clients as before. Brexit will have no impact on the right of any of our patent attorneys to be a representative at the European Patent Office. Under the UPC agreement, all suitably qualified European patent attorneys (including those from non-EU member states and non-UPC participating states) will have a right of audience before the new court when it is established. Our Trade Mark and Designs team will continue to be qualified to represent clients before the EU Intellectual Property Office.

Please contact your usual J A Kemp adviser if you have any general queries or would like to assess specific implications for your business.

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