It is not certain that the UK will leave the EU, nor is it clear on what basis it will leave, if and when it does. There may be an exit without any terms having been negotiated and agreed between the UK and the EU (a so-called ‘no-deal Brexit’) or the UK Government may secure a withdrawal agreement with the EU which is then ratified by the UK and EU parliaments.
However, the position with respect to what will happen to Supplementary Protection Certificates (SPCs) as of ‘exit day’ (whenever that may be) is known in part, even if the finer details and administrative procedures are not.
The UK Government has approved draft regulations, The Patents (Amendment) (EU Exit) Regulations 2019, which set out what will happen to SPCs on ‘exit day’. A link to the text can be found here.
A UK SPC is a UK national right governed entirely by EU law. An SPC provides an additional period of protection for patented pharmaceutical products and agrochemicals after patent expiry. In the event of ‘no-deal Brexit’, a UK SPC will remain a valid UK IP right. 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 continue to file new applications. The duration of an SPC in the UK will also be calculated based on the first authorisation to place the product on the market in the territory of the UK or the EEA. The same term of protection will be applicable before and after ‘exit day’.
Please contact your usual J A Kemp adviser if you have any general queries or would like to assess specific implications for your business.