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Following a recent meeting between high-level representatives of the EPO, including the EPO President, and the UK Chartered Institute of Patent Attorneys (CIPA), the EPO have confirmed that Brexit will have no consequence on UK membership of the European Patent Organisation, nor on the effect of European patents in the UK. European patent attorneys based in the UK will continue to be able to represent applicants before the EPO.
Business As Usual for IP Rights
The UK will remain a full member of the European Union until exit negotiations are completed and a new relationship between the UK and the EU has been agreed. It is expected that the negotiations will continue for two years at the very minimum before the UK formally separates from the EU.
The UK's formal separation from the EU will have no impact on the granting of patents by the European Patent Office either now or in the future, and there will be no impact on the representation rights of UK attorneys before the European Patent Office. The European Patent Convention is not linked to the EU, and many of the current contracting states are not EU members.
Regarding the start of the Unitary Patent and Unified Patent Court, a legal challenge has been filed by a private individual with the Federal Constitutional Court of Germany (Bundesverfassungsgerichit, BVerfG) to the constitutionality of the German legislation enabling the ratification of the Agreement on a Unified Patent Court. In order for Germany to ratify the legislation, the BVerfG must firstly decide whether or not the challenge presents a serious issue for the court to consider, and if so then secondly whether or not the Agreement is unconstitutional. Currently, the BVerfG is inviting comments from relevant parties, the deadline being 31 December 2017.
Trade mark rights and design rights based on existing EU registrations and new EU applications filed before formal separation will continue to extend to and be enforceable in the United Kingdom. The UK is likely to implement either an automatic or administrative re-registration system for those rights but details are uncertain at the moment.
To protect new trade mark and design rights in the UK after formal separation it is likely that UK trademark and design applications will need to be filed at the UK Intellectual Property Office but this will depend on the exit negotiations.
UK attorneys will continue to have representation rights before the EU Intellectual Property Office at least up until formal separation. Those representation rights may automatically continue if the UK remains in the wider European Economic Area, or may be maintained under a separate part of the exit agreement.
We will keep you informed regarding the progress and results of the exit negotiations and the implications for IP rights.