On 23 July 2018 the UK Intellectual Property Office published an update to its page “IP and BREXIT: The facts”. Although still by no means a detailed legal proposal, the scope of the update is far broader than the recent government white paper on Brexit.
Unsurprisingly, the government confirms that the “UK’s exit from the EU will not affect the current European patent system, which is governed by the (non-EU) European Patent Convention”. As a result, there will be no change to the system used by UK-based patent attorneys to prosecute, oppose and defend patents at the EPO – in the same way that patent attorneys based in non-EU states such as Switzerland have done for many years.
Looking to the future, the government proposes that the “UK should continue to participate in the unitary patent system and the Unified Patent Court that underpins it”, confirming the United Kingdom’s long-held desire to participate in this new pan-European system. The arrival of the new patent and associated court continues to be delayed by the constitutional challenge in Germany, but once that is complete the new system could be ready to launch in 2019. Further news is anticipated regarding how the government and the European Union could work together in order to preserve the geographical breadth of the new system, which is one of its key selling points.
Supplementary protection certificates
On supplementary protection certificates (SPCs), the government notes that it will maintain “the current SPC legal framework in the UK as we leave the EU”, which has already been announced in the Draft Withdrawal Agreement. Indeed, the general adoption of EU law into UK domestic law has been planned since the United Kingdom announced the EU (Withdrawal) Bill last year.
The existing national trademark system will be largely unaffected by Brexit. The United Kingdom will also remain a member of the Madrid system for the international registration of trademarks.
Existing EU trademark (EUTM) registrations will continue to have effect in the United Kingdom while it is still a member of the European Union and will continue to have effect in the remaining EU-27 countries after Brexit. The government has confirmed that registered EUTMs will be cloned to create identical UK rights after Brexit. It has recently confirmed for the first time that it intends to carry out this process automatically and free of charge.
No further detail has been provided on EUTM applications that are pending at the date of departure. The present position, as set out in the Draft Withdrawal Agreement, is that such applications will not be cloned, but that applicants will have a nine-month priority period in which to file corresponding UK applications.
UK businesses will still be able to register EUTMs covering the EU-27 after Brexit.
The existing national systems for protection of registered and unregistered design rights will be unaffected by Brexit. The United Kingdom recently ratified the Hague Agreement, meaning that UK businesses will retain access to the Hague System for the international registration of industrial designs.
Existing registered community designs will continue to have effect in the United Kingdom while it is still a member of the European Union and will continue to have effect in the EU-27 after Brexit. The government has confirmed that both registered and unregistered community designs will be cloned to create identical UK rights after Brexit, automatically and free of charge.
Further, the government has confirmed that, in recognition of the fact that the United Kingdom has no existing domestic legislation affording equivalent national protection to the unregistered community design right, it will establish new schemes to preserve the full scope of that right in the United Kingdom.
UK businesses will still be able to register community designs covering the EU-27 after Brexit.
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