June 24th 2016, The UK has voted to leave the EU; Paul Chapman, Head of Legal Practice, reflects on what happens next?

Notwithstanding the result of the referendum, the UK will remain part of the EU until the exit negotiations have been completed. Estimates of the time this will take range from 2 to 10 years, but will probably fall somewhere in the middle of this range. This process will involve the passing of much UK legislation, which will have to redefine huge areas of domestic policy, including the handling of Intellectual Property. It is unlikely that IP will be regarded as a “priority”.

One immediate consequence of the vote to leave the EU is that the UK will no longer be able to participate in the proposed Unitary Patent (UP) or the Unitary Patent Court (UPC). The UK is one of three mandatory countries, which must ratify the regulations setting up these systems in order for them to come into force. It seems clear that the proposed patent and court system will still go ahead, even with the UK leaving the EU, but Italy will likely substitute for the UK as the third mandatory country. In addition, the proposed division of the UPC which was to be based in London and was to be responsible for Pharmaceutical and Biotech Patents, will now likely be based in Milan.

From the point of view of patent prosecution, the only practical consequence of BREXIT will be that the UK will not form part of any granted Unitary Patent, but will remain a “validation” country, like Croatia, Spain (both countries having decided not to participate in the UP) and Switzerland (which although a contracting state of the EPC is not a member of the EU). In the event of BREXIT the UK patent court will remain as the forum for patent litigation in the UK.

For Trade Marks and designs, there will be consequences. We have had a community filing system for both Trade Marks and Designs for some years, administered by the European Union Intellectual Property Office (EUIPO) in Alicante (Spain). This allows for centralised filing and prosecution of TM and design applications and, in the case of Trade Marks, oppositions. Once the UK eventually leaves the EU, UK practitioners will no longer be eligible to practice before the EUIPO. Avidity IP are taking steps to allow our TM and design attorneys to continue to represent our clients’ interests before the EUIPO.