Are there any immediate legal effects on your existing intellectual property rights due to the United Kingdom’s (UK) decision to leave the European Union (EU)?

No. The process of withdrawal from the EU is initiated by the UK’s notification of the European Council of the withdrawal and will be accomplished according to Article 50 of the Treaty on the European Union (Lisbon Treaty). Art. 50 provides for a maximum of two years after the UK’s notification of the European Council to complete the exit process. This period can be extended by the European Council in agreement with the UK. As no member state has ever left the EU before, the process is expected to be slow and complex and to take many years, possibly even up to 10 years.

Legal effects on patents

How does Brexit affect European patent applications and European patents?

In short it does not affect European patent applications and patents. The European Patent Organization is no organization of the EU. The European Patent Convention (EPC) already includes non-EU countries such as Switzerland and Norway. At present patents are validated after the publication of the grant in individual countries. This process will continue, even after the UK has left the EU. Therefore, existing European patents validated in the UK will not lose their validity.

How about the Community Patent once it comes into force?

The Community Patent (European Patent with Unitary Effect, EPUE) will simply be treated like a designated region within the EPC. After the grant of a European patent you will be able to ‘validate’ the patent in the member states of the EPUE. The pre-grant examination process and the post grant opposition process will be handled in exactly the same way as it is already handled at present for European patents. Now that the UK has decided on the Brexit, if protection in the UK is desired, the European patent will have to be validated in the UK separately, as the UK will no longer be a member state of the EPUE.

How about the Unified Patent Court (UPC)?

The UPC agreement is relevant only for member states of the EU and has not yet come into effect. It will come into force after the agreement has been ratified by at least 13 EU member states, whereas those three member states with the largest number of validations of European patents (DE, FR, IT) must have ratified the UPC agreement before it can come into effect.

London was scheduled to host one of the three central divisions of the UPC. Now that the UK has decided on the Brexit, the future of this court is uncertain. This court will probably be moved to another member state of the EPUE outside the UK.

Legal effects on Trademarks

At present a trademark may be protected in the UK either by a national UK or an EU registration. Furthermore protection may be obtained through an International Registration under the Madrid protocol.

Ultimately, EU trademarks will no longer cover the UK. It is possible that there will be a transitional arrangement governing existing EU trademarks and their effect in the UK after the UK has left the EU. Nevertheless, it is mere speculation as to whether existing EU trademark registrations will be extended automatically to the UK or whether some sort of re-registration process will be required. This will probably not happen for at least two years and maybe even longer. In any event, it is expected that once the UK has left the EU, British patent attorneys will no longer be able to represent clients before the European Union Intellectual Property Office (EUIPO), which handles EU trademark registrations, and to file EU trademarks.

What should I do in the meantime?

Keep on filing EU trademark applications as normal. We will inform you in due course when transitional arrangements will become effective. If your trademarks are predominantly used in the UK, it is also advisable to simultaneously file national UK trademark applications or IR registrations designating the UK.

Legal effects on Designs

As with trademarks, designs may be protected in the UK either through a national UK application or an EU application, both of which may be obtained directly or through the International Design System (The Hague Agreement).

Ultimately, EU designs will no longer cover the UK. It is possible that there will be a transitional arrangement governing existing EU designs and their effect in the UK after the UK has left the EU. Nevertheless it is mere speculation as to whether existing EU designs will be extended automatically to the UK or whether some sort of re-registration process will be required. This will probably not happen for at least two years and maybe even longer. In any event, it is expected that once the UK has left the EU, British patent attorneys will no longer be able to represent clients before the European Union Intellectual Property Office (EUIPO), which handles EU design registrations, and to file EU designs.

What should I do in the meantime?

Keep on filing EU design applications as normal. We will inform you in due course when transitional arrangements will become effective. If your designs are predominantly used in the UK, it is also advisable to simultaneously file national UK design applications.