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The impact of Brexit on IP rights

With the completion of the Brexit, the United Kingdom has left the European Union. This also has implications for IP rights.

No effect on patent rights

Patents are national rights. The Brexit therefore has no effect on your patent rights, even if they have been granted via, for example, the European patent procedure. The UK remains party to the European Patent Convention. New patent rights in the UK can therefore still be obtained through a European patent. For supplementary protection certificates (SPCs) in the UK, these will now be granted on the basis of national legislation. Read more about SPCs here.

Influence on parallel import

The departure does have an impact on the parallel import between EU countries and the UK, which is now possible through “exhaustion” of patent law. This means that once a patented product has been sold within the EU (with the consent of the patent holder), it can be freely traded in the rest of the EU. Even if there are patents in those countries. Products placed on the market in the UK with the patent holder’s consent are not thereby freely marketable in the EU. Conversely, UK national legislation determines whether or not a patent right can be invoked in the UK against the import of products marketed in the EU with the patent holder’s consent.

This legislation can also be amended by the UK government. Separate rules may apply to Northern Ireland.

Conversion of European trademark and design registrations into national UK rights

Existing European trademark and design registrations are expected to remain guaranteed, as the UK Parliament has previously indicated. They can be converted to equivalent national registrations in the UK while maintaining the application and registration dates. You do, however, pay separate maintenance costs for these UK rights. Pending European trademark and design applications can from that moment be filed as national UK rights, while retaining the original application and priority dates of the EU registrations. You also pay separate registration fees for this. The procedure of the conversion and the application are part of the negotiations.

Do you have more patent questions about the implications of the Brexit? If so, please contact Peter de Lange. For trademark and design issues, please contact Maaike Witteman. For questions about contracts or other legal matters, please contact Annelies de Bosch Kemper.

 

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