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Intellectual Property and Brexit

Britain has embarked on a course to leave the European Union (EU), which is sure to impact intellectual property rights in the UK and EU.  The extent of the impact is unknown as the Brexit process is just getting started.  But here are some basic IP issues to consider.

Patents

To obtain patent protection in Europe, an inventor can either file patent applications directly with the patent offices of each desired European country or file a European patent application under the European Patent Convention (EPC).  Through the EPC, an inventor can validate a patent in up to thirty-eight counties, which include EU countries but also non-EU countries such as Switzerland, Norway and Turkey. Because the EPC is independent of the EU, Brexit will not affect Britain’s membership in the EPC or patent protections granted under the EPC.  So for the time being there is no need to change working practices or take any action with respect to European patents as a result of Brexit vote.

But Brexit may have a significant impact on future patent laws in Europe.  Before the Brexit vote, the EU had been working on a Unitary Patent Scheme (UPS) which is expected to streamline the present system and grant uniform patent protection across the participating member states of the EU based on one application. At the same time, the Unified Patent Court was to be established, which would have jurisdiction over both the new unitary patents and the traditional European patents. Given the UK’s decision to withdraw from the EU and the fact that the UK is currently required to ratify the relevant agreements establishing the UPS, the UK’s involvement with the scheme and the timeframe for its implementation are uncertain. Unless the UK government and the EU agree otherwise, the UK will be prevented from taking part in the UPS resulting in a substantial loss of value associated with the Unitary Patent.

Trademarks

Similar to patent protection in Europe, trademark owners have the option of applying for trademark registrations directly with each desired country.  However, owners may also apply for a European Union Trademark (EUTM) registration, which provides rights in all 28 EU countries.  While some maintain both national and EUTM registrations, others rely on EUTM registrations alone for trademark protection in the EU.

While UK national registrations will not be affected by Brexit, one likely result of a UK departure from the EU is that EUTM rights will no longer extend to the UK.  This means that those with trademark rights in Europe may need to take action to preserve their rights in the UK.  It’s anticipated that there will be a mechanism for EUTM owners to acquire corresponding rights in the UK, but there are no details yet on what this mechanism would look like or how it would work.  As a practical matter, those who intend to file or have recently filed EUTM applications should consider filing corresponding applications for national registrations with the UK Intellectual Property Office.

Copyright

There is no unified copyright law or registration process in the EU.  Therefore, the means of copyright protection in the UK and the EU will remain largely unchanged by Brexit.

By: Adelee E. Traylor and Benjamin L. Mitchell

SeidelAdelee2554yxc  Ben Mitchell