The withdrawal of the UK from the EU will have significant effects in many areas, also with regards to EU related IP rights. There are number of exit scenarios and Brexit effects to our customers business and thus we at Berggren will monitor very closely and keep up with the IP developments and inform our customers as matters progress.
According to Article 50 of the Treaty of the European Union (TEU) any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. A Member State has to notify the European Council of its intention. The Union shall negotiate an agreement with the State. The withdrawal shall take effect from the date of entry into force of the agreement, or failing that, two years from the above mentioned notification.
When the UK has withdrawn from the EU, EU IP rights will cease to apply in the UK. Normally, there will be some transitional measures available in order to convert existing EU trademarks or registered designs into UK rights. In the meantime, when applying for new rights, where the UK is a relevant market, this should be done by means of a national or international application.
The future of the Unitary patent package, including the so-called Unitary Patent (European patent with unitary effect) and the Unified Patent Court, is also unclear since the entry into force of the Unified Patent Court Agreement is dependent on the UK as long as the UK is a EU Member State. When the UK has left the EU, another Member State (seemingly Italy or the Netherlands) will replace the UK as a required signatory state of the agreement.
There have been discussions about renegotiating the Unitary patent package so that it could be extended to the EEA, whereby UK could become a member of the EEA. However, presently this remains still as an open question.
The UK government has already been approached by various parties in this connection; an example can be found here.
There will be no change for now with regard to classical European patents since these are governed by the European Patent Convention (EPC), which is not an EU instrument.
The UK withdrawal should also be taken into account with regard to existing and future license and other agreements.
The regulation EU 1215/2012 (so-called Brussels regulation) on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters will also cease to have effect for the UK after the UK withdraws from the EU. This is another matter to be taken into account particularly with regard to pan-European litigation.
Presently, UK has been bound to decisions of the Court of Justice of the European Union (CJEU). However, after withdrawal from the EU, this will not be the case. Again, if the UK were to join the EEA, the binding effect of the CJEU could remain.