Time to re-file your patents and trademarks, Britain

Brexit buggeration, part 42

Brexit Businesses will likely need to re-file their patents and trademarks in the UK following the Brexit vote, leading intellectual property lawyers have warned.

The decision to leave the European Union puts a big question mark over "automatic EU-wide IP protection," says patent law specialist Iain Connor of Pinsent Masons, writing in Out-Law.com.

EU-registered trademarks provide rights across Europe, but with the UK leaving, officials would have to agree on a new system to extend those rights to the UK and vice-versa. Whether that is likely to happen and in what timeframe is just one of many questions raised by the referendum.

"Leaving the EU will mean that rights which cover all 28 member states will need to be transitioned to a new regime which either transposes EU rights into national rights or requires rights holders to begin afresh the process of securing IP protection in the UK and other member states," Connor said.

In other words, if the bureaucrats can't reach agreement, companies will likely need to re-file their patents, trademarks and so on for them to be applicable within the UK. And, if they are a UK business, may need to re-file them in several European countries too.

You down with UPC? Not any more

That's not the only problem. The decision to leave the European Union also puts a big question mark over the Europe-wide Unified Patent Court (UPC) system, which is planned to open in 2017.

Deborah Bould and Helen Cline, also of Pinsent Masons, warned that: "Until the UPC Agreement is amended to substitute the UK as a required signatory, the UPC would be in limbo." And with the UK leaving the EU, the entire system will likely be delayed. The plan to have it up and running by spring 2017 is now "unrealistic," she argues.

Only full membership of the EU allows countries to participate in the system that is designed to greatly simplify the application of patents across the continent. The UK could ratify the UPC agreement by itself, but that seems unlikely given that the UPC was an EU-developed approach.

What's more, London was supposed to be one of the three main offices of the UPC, with a focus on pharmaceuticals. That looks almost certain to change now.

Cline argues: "There is likely to be a scramble by the other participating states to take over London's position. Italy looks like it might be in pole position although the Netherlands is also a good candidate."

By not being in the UPC system, the UK also risks making itself less attractive to business and investment. As with many other aspects of being outside Europe, it will result in barriers and rules that may see companies decide that the UK is not worth the additional trouble.

Likewise, if the UK wants to ensure that it is not at a disadvantage in the global marketplace, it would likely need to adopt European rules wholesale, while not being in a position to influence their development. ®

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