A patent attorney on Brexit...

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

The UK has voted to remove itself from the ever tighter political union in Europe. It is likely to remain a full Member of the European Union (EU) for two years or so while it negotiates a new relationship with the EU.

European patents validated in the UK will continue to have legal effect and European Patent Attorneys based in the UK will continue to enjoy full rights to represent clients before the European Patent Office and PCT authorities, even after formal exit. The European Patent Office (EPO) is completely independent of the EU. The only practical effect is likely to be increased price competitiveness of European Patent Attorneys based in the UK while the relative value of the GBP currency remains depressed.

The forthcoming Unitary Patent and Unified Patent Courts (planned for mid 2017) are likely to be at least delayed by the exit of the UK. It is expected that the UK and the other participating member states will find a solution to implement this as soon as possible. Again, European Patent Attorneys in the UK and elsewhere, will enjoy rights of conduct in the new European Patent Court.

The European Patent Office issued this statement on 24 June 2016.

As regards trade marks and designs, UK national versions of these rights will not be affected but following formal exit approximately two years from now the UK will no longer be part of the Community Trade Mark (CTM) regime.

Existing CTM registrations would then in principle cease to have legal effect in the UK, although it is likely that transitional provisions will be put in place to allow brand owners to convert the relevant parts of their CTMs into national UK registrations retaining their original priority dates.

In the same way, Community Registered Designs (CRDs) would cease to apply in the UK; again we expect transitional provisions to enable the UK parts of CRDs to be converted to UK national designs.

Brand and design owners may wish to consider supplementing their portfolios now with UK national applications for their core brands and designs.

In practice, the UK now faces a multitude of possibilities. Broadly, these comprise (a) joining the EEA which would allow the UK to access the single market but mean that it will still be subject to the majority of European law; (b) joining EFTA, which provides more limited access to the single market but means that fewer European laws have to be adopted; or (c) joining neither but perhaps entering a bespoke trade deal with the EU, in which case the access to the single market and the laws to be adopted could be a matter for almost limitless negotiation.

The UK will doubtless also be pursuing trade agreements with partners outside the EU.