On 23 June 2016, in a national referendum, the
population of the UK by a narrow majority (52%) voted to leave the
European Union (EU).
There is considerable uncertainty as to when (and, even,
whether) the UK will exit the EU (a so-called "Brexit").
We also do not yet know the nature of the UK's ongoing
relationship with the EU after any Brexit occurs, the specifics of
which will impact some aspects of the intellectual property
landscape in the UK. On the other hand, some areas of this
landscape will not be affected.
We explain below what the UK's Leave vote means for the
Vote Leave means nothing at the moment
There has been no change to the law in the UK, which remains a
member of the EU and is expected to do so for at least the next two
years. Current EU (and incoming) legislation will continue to apply
until the UK leaves. To the extent that EU law has been written
into UK national law already it will remain in force
The current European patent grant and enforcement
system will continue to include the UK irrespective of any
"The Office underlines that the
outcome of the referendum has no consequence on the membership of
the UK to the European Patent Organisation, nor on the effect of
the European Patents in the UK."
The existing system provides for centralised application,
prosecution and grant of European patents (as a bundle of national
'designations') in and by the EPO. The EPO can also hear
oppositions filed within the first nine months of grant. Aside from
this, questions of infringement and validity of each national
designation is a matter for the courts of the relevant
Companies and individuals from the UK, the EU and overseas will
continue to be able to apply for and own European patents. All
European Patent Attorneys, including those based in the UK, will
continue to be able to represent their clients at the EPO. None of
this will be altered by Brexit.
The position regarding the new Unitary Patent (UP) and
Unified Patent Court (UPC) system, which is in development but not
yet operational, is less clear
In recent years most member states of the European Union have been
working together to introduce a new court system (the Unified
Patent Court, or 'UPC') with jurisdiction to resolve patent
disputes spanning much of the EU. The UPC, along with the new
single patent right of equivalent scope (the Unitary Patent, or
'UP'), represents a fundamental change to the patents
landscape in Europe. In various ways it supplements, complements
and replaces aspects of the existing system.
The UK's Leave vote is, in practice, likely to delay the
introduction of the new UPC and UP system.
This is because the treaty (the 'UPC Agreement') that
establishes the system mandates (among other things) that
participating countries must be members of the EU, that it will
enter into force only following ratification by the UK, and that
the location of a part of the Court of First Instance will be in
It is theoretically possible that the UK could ratify the UPC
Agreement before any Brexit takes effect, in order to get the new
system operational. However, we consider this to be very unlikely.
In any event, the location of part of the Central Division in
London is likely to be considered by the other participating states
to be an unsustainable oddity needing correction, by amendment to
the UPC Agreement. Some countries could treat this as an
opportunity to re-visit the wider negotiations. If the history in
this area is anything to go by, agreement could take some
Consequently, the UK's Leave vote is, in practice, likely to
postpone any change to the current system for grant and enforcement
of patents, not just for the UK, but for the whole of Europe.
Whether the UK would be able to negotiate a way of remaining
involved in the UPC and UP system in the circumstances of Brexit
remains to be seen.
The UK is home to many innovative sectors and businesses. It is
also a key jurisdiction for high value and strategically important
patent litigation. With the experience and standing of the UK's
patent courts unaffected by any Brexit, there is every expectation
that 'business as usual' will continue in the UK.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Trading under your name is an appealing idea, especially in the fashion world where designers frequently use their own names as brands (think Hugo Boss, Donatella Versace, and Tom Ford, to name but a few).
1.The trade mark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in the Community under that trade mark by the proprietor or with his consent.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).