UK: The UK, Brexit and IP law

April 25, 2016

On February 22 2016, the prime minister announced a referendum on the withdrawal of the UK from the EU, to take place on June 23 2016. In treatment typical of the UK press, this has been christened Brexit: a term rapidly accepted into general parlance within the UK but, understandably, not outside.

This announcement has triggered extended, heated debate across all sections of society, with topics ranging from immigration to bananas. In the interests of seeking some clarity, the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys, the professional bodies for UK patent and trade mark attorneys, have issued analyses of the possible outcomes.

A vote in favour of remaining in the EU maintains the status quo, but should the vote be to leave, the UK would no longer be bound by EU legislation, enabling it to change its IP laws. In that event, the EU trade mark (EUTM), Community registered design, Unitary Patent and Unified Patent Court would cease to apply in the UK causing a possible mountain of requests to convert EUTMs to national registrations. The UK would remain a member of the European Patent Convention, but would no longer be part of the Select Committee meaning no say in any rule changes. Unregistered Community design rights would remain available if the disclosure of the design takes place within the EU. Supplementary protection certificates for medicinal and plant protection products would require amendments to the UK Patents Act to continue in the UK. Rights of audience at the European Patent Office would be retained for UK patent attorneys, but representation rights at the EU IPO would only be possible on joining the EEA.

As the UK would remain party to international treaties and their harmonising actions, national changes to the IP legislation would seem unlikely. Concurrently, the EU would have an indirect effect on the UK economy, but the UK less influence on that effect.

The prime minister indicated a two-year time period to negotiate arrangements for any exit, and transitional periods would certainly be required. At this stage, uncertainty prevails.