If you're a Minnesota business with intellectual property (IP) interests in the United Kingdom or European Union, you can rest easy that the Brexit vote poses no immediate problem for securing patents, trademarks or design protection in that part of the world. However, you may need to consider action in the next year or two to ensure that your IP remains adequately protected. Longer term, the Brexit vote aftermath could result in challenges for all holders of IP in Europe and elsewhere.
The U.K. voted on June 23 to leave the E.U., which is the start of the process of withdrawal. The first official step will only occur when the U.K. invokes Article 50 of the Treaty on European Union, which allows a member country to notify the E.U. of its withdrawal and obliges the E.U. to begin the complex process of negotiating a withdrawal agreement. The U.K. will not likely leave the E.U. until the withdrawal agreement enters into force, which at a minimum is two years from the date of the notification of withdrawal. The European Council may also vote to extend the two-year period, a result that many think is inevitable.
What does all this mean for your intellectual property?
Patents
The good news is that Brexit will have no effect on European patents or patent applications. European patents are granted by the European Patent Office (EPO), which is not an E.U. institution. E.U. membership is not a condition of membership in the EPO, and non- E.U. member countries, such as Switzerland and Norway, have long been EPO members.
As a result, you will continue to be able to validate your granted European patents in the U.K., and European patents that have already been validated will continue in force. Similarly, U.K. patent attorneys will be able to continue acting as representatives before the EPO.
Trademarks and designs
Brexit will have a greater impact on trademark and design protection in the U.K., but presumably not before the U.K. will have the opportunity to minimize its effect. You may currently register trademarks and designs in the U.K. either by filing national applications or by applying for the registration of an E.U. trademark or a Community (E.U.) design.
In both cases, registration provides unified and unitary protection in all E.U. member countries. E.U. registrations will no longer cover the U.K. when the country leaves the union, which raises the question of whether existing registrations will remain effective in the U.K.
Fortunately, it is fully expected that the U.K. will adopt transitional arrangements that either extend E.U. registrations automatically or require a simple re-registration procedure. In the meantime, you may wish to consider applying for national registration in the U.K. in addition to E.U. registration, especially if your business activities are U.K.-centered. In the end, however, you are not likely to lose any rights.
Longer term impact less clear
In the longer term, the picture gets a little murky. The E.U. was moving toward the launch of a unitary patent — a patent that would have effect throughout the E.U. — and an E.U.-wide Unified Patent Court. Neither has come into effect, and without the participation of the U.K., it is anyone's guess what the future holds.
Adding to the uncertainty, the U.K. is one of the countries that must ratify the Agreement on the Unified Patent Court to make the court operational, and London was appointed to host one of the court's central divisions.
Another concern is that if the U.K. leaves the E.U., it will no longer be bound by trade agreements that the E.U. has signed. The draft Transatlantic Trade and Investment Partnership (TTIP), under negotiation between the U.S. and the E.U. since 2013, contains a proposed chapter on IP, and also a draft chapter on medical devices that is bound to affect the Minnesota medical device industry. If TTIP takes effect, the U.K. might not be covered unless it negotiates participation separately from the E.U.
On a broader level, the Brexit vote may reflect diminished popular support for trade agreements, which often include IP provisions. In the U.S., both major party presidential candidates now oppose the draft Trans-Pacific Partnership (TPP), which includes substantial IP provisions, and one of the candidates has indicated a willingness to renegotiate or pull out of the North American Free Trade Agreement, which also contains IP provisions.
The world economy has benefited over the past few decades from international agreements that improve and harmonize IP protection. Brexit may not impact IP holders immediately, but long-term progress in global IP protection may be at risk.
Jay Erstling is an international intellectual property attorney with Patterson Thuente Pedersen. He can be reached at erstling@ptslaw.com
