The Technical Notices on intellectual property issued by the Government this week spell out the consequences for the various forms of IP if the UK were to leave the EU without a deal. This is still said by the Government to be “unlikely given the mutual interests of the UK and the EU in securing a negotiated outcome.”
CIPA has been engaging with the Government on what it would like to see in a negotiated solution, and has welcomed an approach which would see the UK able to participate in the UPC, the Unitary Patent, and, if possible, the EUIPO, despite Brexit.
It has to be recognised that leaving the EU without an agreement would put us in a different situation. The Technical Notice on patents nevertheless makes clear that the existing regimes for patent protection in the UK, including via European patents granted by the EPO, will not be affected, and that UK based European patent attorneys will continue to have rights to represent clients before the EPO, in accordance with CIPA’s “business as usual” message. This will also be the case for SPCs, which will be continued in the UK under domestic legislation, and for the rules relating to patenting biotechnology inventions.
The Technical Notice recognises different possibilities for the UPC in the event of no deal, depending on the timing of any ratification by Germany, and whether the court comes into effect before or after the date of Brexit. However, the Notice makes clear that the UK will explore whether it would be possible to remain within the Unified Patent Court and unitary patent systems, even in a ‘no deal’ scenario.
For trade marks and designs, the Notice reiterates the already stated intention that the UK will replicate EU rights on the UK register “with minimal administrative burden” (which will need to be defined, but we hope it means that there will be no official fees) and that the holders of pending applications will be able to refile for a UK equivalent right within nine months of the date of exit so as to preserve their filing and priority dates.
The Government has confirmed that unregistered Community designs will continue to be protected in the UK, and that the UK will create a new unregistered design right in UK law which mirrors the characteristics of the EU unregistered design right. The UK will amend legislation to ensure that it functions effectively once the UK is no longer part of the EU system for designs.
Other aspects of the Technical Notices deal with exhaustion of rights, confirming that the UK will continue to recognise the EEA regional exhaustion regime from exit day, and copyright.
CIPA will continue to work with the UKIPO and other arms of Government to urge the best approach to preserve the rights of the users of the system and their representatives. Where you are able to engage with your MP or other potential influencers please do urge them to make sure that IP gets appropriate priority in the Brexit negotiations.
The various Technical Notices can be found at these links:
Patents if there's no Brexit deal
Trade marks and designs if there's no Brexit deal
Copyright if there's no Brexit deal
Exhaustion of rights if there's no Brexit deal