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Brexit & Patents

Following the UK's decision to leave the European Union ('Brexit'), there will inevitably be questions about what this all means for patent protection. With this in mind, we have developed a series of FAQs to address any questions or concerns.

Crucially, no patent rights will be lost as a result of the UK vote to leave the EU and there is no change to the services that we can provide to our clients.

The FAQs below summarise the likely situation for patent protection in the UK and Europe.

Contact us with your 'Brexit' questions or concerns

Please do get in touch with any questions or concerns regarding IP and Brexit, either by contacting your usual D Young & Co patent attorney or solicitor or by emailing us at brexit@dyoung.com.

What has changed?

In terms of the European patent system – nothing. There is no change to the way patents can be filed and prosecuted. It is business as usual.

The UK will continue to be a member of the European patent system, which is governed by EPC, a treaty between contracting states to the EPC that is, and will remain, completely separate from the EU.

A number of non-EU members, such as Norway, Switzerland and Turkey, have long been EPC contracting states. Accordingly, the UK's exit from the EU simply means that the UK will join these other EPC contracting states who are not members of the EU. It will not change the EPC in any way.

Patent protection in the UK will continue to be available via the European Patent Office (EPO) by validating granted European patents in the UK after grant, and our European patent attorneys will continue to act in the usual way in all matters before the EPO.

Will D Young & Co be able to continue representing clients before the EPO?

Yes. The EPO is independent of the EU and a UK exit from the EU has no effect on our ability to represent clients before the EPO. There will be no change in our ability to file or prosecute patent applications or our ability to file or defend oppositions to granted patents.

European patent applications may still designate all contracting and extension states and we will continue to be able to secure protection across the EPC.

What will happen to the planned Unitary Patent and Unified Patent Court?

On 28 November 2016, the UK indicated (surprisingly perhaps) that it intended to continue preparations to ratify the UPC Agreement. So far, it has done just that and, while UK ratification is yet to take place, indications are that it will. In that event, the UP & UPC project can commence before the UK leaves the European Union. The most recent provisional timetable from the UPC Preparatory Committee is that the system will commence in December 2017.

The position as regards the UK's continuation in the project post Brexit itself is a little unclear. Come what may, D Young & Co will be able to request unitary patents on your behalf, and we have taken steps to enable D Young & Co litigators, with our combination of lawyers and European patent attorneys, to represent clients in both the UK courts and the UPC, making pan-European litigation a strength for our litigation team.

• For further information about the UP and UPC, please see our Brexit UP & UPC FAQ: www.dyoung.com/brexit-upandupc.

Supplementary Protection Certificates (SPCs)

There is no change to the EU SPC regulations. In particular, the scope, effectiveness and enforceability of SPCs in the UK remain the same, and will continue to be the case until such time as the UK actually leaves the EU. The negotiations could take many years and suitable transitional provisions will be implemented at an appropriate time - we will keep you informed.

In respect of existing SPCs, although the position is unclear at present, we anticipate that appropriate UK legislation will be implemented to ensure that UK SPCs pending or granted under existing EU legislation will continue to have effect in the UK after the UK leaves the EU.

Will D Young & Co be able to continue representing clients in relation to SPCs?

Yes we will. SPCs will remain valid and enforceable in the UK, and new SPCs can be obtained, until Brexit takes effect. Moreover, Brexit should have no effect on the existing SPC system in other EU countries, therefore our advice is to continue filing in the usual way for SPC protection in the UK and in other EU countries.

Will UK SPCs continue to be available after the UK leaves the EU?

It is difficult to be certain exactly how SPCs will be impacted – this will depend somewhat on the terms of the UK's exit, and in particular whether the UK remains in the EEA (along with Norway and Iceland - to which the EU SPC regulation applies).

However, the purpose of SPCs (to compensate the patent holder for the patent term lost caused by the need to obtain regulatory approval), and their value to the pharmaceutical and plant protection industries, remains unchanged by the UK leaving the EU.

A number of non-EU countries, such as Switzerland, already allow SPCs based on their national law, under provisions that essentially parallel those of the EU Regulations. Accordingly, the UK Government is likely to follow a similar model and enact new legislation to allow for UK national SPCs under provisions similar to those currently provided under the EU SPC Regulations.

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