What will happen to (a) patent rights; (b) trade mark rights; and (c) design rights; and (d) copyright following Brexit taking effect?
a. Patent right
The current system of national patent protection obtained through the UK Intellectual Property Office (UKIPO) or the European Patent Office (this is not an EU institution) will remain unchanged.
However, an overhaul of the patent regime in the EU is due to come into force enabling proprietors of inventions to apply for a single, pan-EU Unitary Patent (UP) covering most of the EU, and with a single Unified Patent Court (UPC) to hear and determine patent disputes on a pan-EU basis. The future of the Unified Patent Court (UPC) system had been in doubt following the UK’s vote to exit the EU as it had been created within the EU framework. The UK government announced on 28 November 2016 that it will ratify the Unified Patent Court Agreement which means that the system can now be implemented, and following the triggering of Article 50, maintained that ratification will proceed in due course. Currently, the Unified Patent Court (UPC) system is timetabled to start in December 2017.
The Government has been quick to clarify that its decision has no bearing on its negotiation stance as it prepares to exit the EU: the UK’s eligibility to remain in the UPC system after Brexit takes effect remains unclear. Thus, although ratification most certainly means that the UPC system will survive (with or without the UK), it does not remove the uncertainty over the scope of granted unitary patents and any pending litigation in the UPC following the UK’s withdrawal from the EU.
Businesses are urged to review their patent protection and future enforcement strategies, bearing in mind that the UPC is now becoming a reality, albeit with a question mark over what it will look like after Brexit takes effect. Theoretically UK's continued involvement is possible but current thinking is that this would involve UK submitting to the jurisdiction of the CJEU, which will be a challenge in the current political climate.
b. Trade mark right
The national trade mark system whereby UK trade marks are obtained via the UKIPO is unchanged.
After Brexit takes effect, EU trade marks are likely no longer to cover the UK. Proprietors of existing EU trade marks will be likely to be able to rely on transitional provisions (terms or procedures for which are yet to be determined) which should enable proprietors to obtain separate UK coverage based on the EU trade mark right.
Going forward, if the UK is an important marketplace, applicants should consider seeking separate UK trade mark protection in addition to filing the EU or designating the EU within a Madrid Protocol application. This would bring certainty and the assurance that rights are readily enforceable in the UK should the need arise.
c. Design rights
The national system of UK Registered Designs obtained through the UKIPO and the UK unregistered design right is unchanged.
After Brexit takes effect, Community registered design rights will likely no longer cover the UK. Again, similarly to the trade mark position, proprietors of existing Community registered designs will likely to be able to rely on transitional provisions (terms or procedures for which are yet to be determined) which should enable proprietors to obtain separate UK coverage based on existing Community registered design right. Again, going forward, if the UK is an important market, applicants should consider seeking separate UK registered design protection in addition to filing a Community registered design right.
There is no change to copyright protection in the UK as it is not harmonised across the EU.
Although copyright law per se is not harmonised, the rules governing the way in which copyright protected works can be exploited in certain contexts are governed by EU law (such as the Software Directive and the InfoSoc Directive), and these EU laws have already been implemented into UK legislation. However, there have been calls to harmonise copyright laws, which has led to initiatives such as the “Digital Single Market” (see below).