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Protect your creative vision

19 October 2016

For product, design and application companies, IP can form up to 80% of your company assets. Are they still protected after the Brexit upheaval?

Adrian Hocking is Director, Albright IP, UK & European Patent Attorney BEng (Hons)

With Brexit creating uncertainty around how the UK will negotiate its withdrawal from EU legislation, Adrian Hocking, Director at Albright IP, a firm of intellectual property attorneys, takes a look at the current IP situation.

The important thing from an IP perspective is that, for the moment, it is very much business as usual and there is no need to worry. At present, the existing UK National IP rights and European patents and applications are unaffected. The Government has yet to trigger Article 50 and with a minimum of two years’ negotiation (likely to be much longer), the UK is set to remain in the EU, it would seem, until at least 2019.

Impact on patents

The good news is that the decision to leave the EU will not affect EU patent holders. Companies will not lose any rights and patents already obtained via the European Patent Office will remain in force with no change. Brexit will also not restrict the ability of UK patent and trademark attorneys from carrying out European patent work on your behalf. The present European patent system is a high-level Pan-European organisation that covers many more countries than just those within the EU. The UK is still an intrinsic part of the European patent system and will remain so even when it leaves the EU. 

What is unknown, is how Brexit will affect the proposed new Unitary Patent System. The long awaited introduction of the new European Patent with unitary effect and the Unified Patent Court (UPC) is the biggest change in the history of European patent law and was anticipated to come into effect in 2017. It will not replace the original European patent system, but will supplement it. The UK was set to play a key role in the Unitary System by hosting a branch of the Court in London, but with Brexit, this is thrown into question. Recently, it has been announced that negotiations have begun to enable the UK to remain part of the new Unitary System with London retaining a specialist technical section of the Court. With the world-class technical and legal knowledge of the UK judges, this does make sense. 

In any event, the traditional European patent system will still be used all the way to grant. When the UK does leave the EU, then on grant of the European patent, the UK can simply be designated in addition to the EU in respect of the territories in which the European patent is to be enforced. As such, this is still very much achievable and not a major issue for concern. 

Impact on trademarks

The position for trademarks is less certain and as it stands, when we leave the EU, current European Union Trade Marks (EUTMs) and Registered Community Designs (RCDs) will cease to have effect in the UK. However there will almost certainly be a period to allow European regional rights to be converted into local national rights in the UK without losing any cover. There are a number of questions which need to be answered, such as what happens to existing registrations and if protection will continue. Much of this will depend on what the UK agrees with the EU in its Brexit negotiations. For the moment and the next two or three years at least, however, EUTMs and RCDs remain valid in the UK, so there is no need to panic.

To fully cover yourself, you could apply for a UK Trade Mark (UKTM) in addition to a EUTM. Many companies will opt to ‘wait and see’ how the Brexit scenario unfolds. However, if trade to or within the UK is important to your business, my advice would be to seek separate UK protection for your trademarks now. This will not only avoid uncertainty, but also add value to your IP.

How can companies prepare for the change?

This is the ideal time to prepare yourself for any changes. My advice would be to undertake an audit of your IP assets. Review your existing licences, agreements and settlements relating to portfolios of existing EU trade mark and design registrations, in addition to your patent portfolio, now. This way, you can be in the perfect position to respond to any changes and ensure that your IP is protected to the fullest extent. If in doubt, talk to a specialist IP attorney to review your IP and ask them to keep you updated of any future changes. Initial advice and guidance is typically free of charge, and the information provided will almost certainly be highly valuable.

Adrian Hocking is Director, Albright IP, UK & European Patent Attorney BEng (Hons) 

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