Geoffrey L. Melnick
On Thursday,23 June 2016, the United Kingdom, for reasons best known to itself, voted to leave the European Union after 43 years of membership. Will this have any effect on the Intellectual property scene?
For patents, the short answer is no. The European Patent Office is not an institution of the European Union, but is organized under a separate treaty and the UK continues to be a member of the European Patent Convention alongside numerous other members who are not part of the European Union.
The European Patent system currently provides a bundle of national patents, but is in the process of being enhanced by the Unitary Patent. Under the unitary patent concept, a single patent will be granted for all of the member countries with a single court system to enforce the patents and decide on validity. The UK is not only currently signed up to the Unitary Patent but in fact is scheduled to host some of the institutions of the single court system.
The unitary patent is again an issue of a separate treaty, so in principle it need not be affected by Brexit. However the project carries heavy shades of European integration by bringing together the different legal systems and makes reference to European Union law. Therefore there must be a big question mark over whether the UK will be able to continue with the unitary patent process. In any event, the unitary patent treaty as it is now would have to be amended for a non-EU UK to be part of it and many experts feel that there is no mood to make these amendments, as there is a feeling that the UK should not be allowed to have the benefits of EU membership without the obligations. So UK participation in the Unitary Patent Project must remain as something of a question mark for the time being.
European Trade Marks, and community designs, by contrast, are specific to the EU member states. These trade marks and designs currently cover the UK and will apparently cease to do so when the UK departs from the Union. It is yet to be seen whether there will be some kind of transitional provisions for existing marks and designs to continue to apply to the UK or whether some sort of re-registration will be required. Future marks and designs however will have to be registered separately in the UK once it has left the EU.
In any case the process for leaving the European Union will take at least two years, two years during which the status quo will be preserved.
Another issue for rights holders is that the UK will cease to be part of the single market. Imports to the UK will no longer be subject to the same standards and tariffs as the rest of the European Union and will have to be dealt with separately. In addition, aspects of European law such as competition law will cease to apply to the UK.