Brexit FAQ

1. What effect will Brexit have on European patents granted for the UK which are currently in force?

 None. They will remain in force and fully effective, as at present. The European Patent Convention and the EPO are independent of the EU and have always had a number of non-EU members such as Switzerland, Norway and Turkey.

Here is a statement by the EPO President:

2.  What will be the effect on pending or new patent applications in the EPO?

None. The filing and prosecution of European applications, whether directly at the EPO or via the PCT route, is entirely unaffected by Brexit. New and pending applications will continue to designate the UK.  At the grant stage, the applicant can opt for national protection in the UK and other countries, exactly as at present. When the unitary patent eventually becomes available, that will be a further option that could be selected.

UK-based European patent attorneys will continue to represent clients at the EPO, as at present, including the validation for a unitary patent if desired.

3.  What will be the effect on the planned Unitary Patent system?

Legal mechanisms have been proposed which would enable the UK still to participate in the Unitary Patent and the associated Unified Patent Court, even after Brexit. There would be clear benefits both to the UK and to the unitary system as a whole, but it would require political will on all sides to amend the current legal arrangements.

If this is not forthcoming, then when unitary patents become available (as an option when a regular European patent application is granted), they will provide cover only in EU countries. So they would not provide cover in the UK after Brexit. However, as with other non-EU countries, it will continue to be possible to obtain national UK protection via the EPO route, exactly as at present. 

It was previously thought that the unitary patent system would start in mid-2017, along with the Unified Patent Court, but the Brexit vote has cast some doubt on that timetable.

4. What will be the effect on the planned Unified Patent Court (and its proposed seat in London)?

See above for the possibility that the UK might still participate in the UPC, with a seat in London, if the political will exists.

Otherwise, as the UPC agreement currently stands, the UK must ratify it before the UPC can commence. For the UPC to go ahead without UK ratification, either the UPC agreement must be renegotiated, or UK must have actually left the EU. UPC renegotiation would take time, and there will be at least a two-year negotiation period before the UK actually leaves the EU, probably longer. Delay would be inevitable.

5. What will be the impact of Brexit on EU trade mark and design applications pending in the EUIPO?

There will be no immediate impact on any trade mark or design applications pending in the EUIPO. These will continue to be processed by the representatives that are currently acting before the EUIPO, and they will have effect throughout the EU, including the UK until the UK officially leaves the EU, which will probably not be for at least 2 years. Once the UK leaves the EU see below for how such pending applications (which over time will become registered) will be treated.

6.  What will be the impact on existing EU trade mark and design registrations and their effect in the UK?

There will be no immediate impact on any existing EU trade mark and design registrations. Once the UK leaves the EU (which will probably not be for at least 2 years) such registrations will cease to have effect in the UK.  In the same way as when a country joins the EU protection is expanded, when a country leaves the EU protection is reduced. Having said that it is our opinion that owners of such EU trade mark and design registrations will not be left without any protection in the UK.

That being said, we are expecting there to be some transitional provision, such that either the UK will agree that such trade marks and designs continue to have protection in the UK, or there will be a process for “transforming” the existing registration into a UK national registration, or a process for claiming seniority in a new filing. We do not yet know what transitional provision will take place, but we do know that rights holders who previously enjoyed protection in the UK through an EU trade mark or design won’t suddenly lose such rights overnight. CIPA will be working closely with the UKIPO to help form a transitional provison that will be fit for purpose and help to smooth over the transition with rights holders.