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Following a recent meeting between high-level representatives of the EPO, including the EPO President, and the UK Chartered Institute of Patent Attorneys (CIPA), the EPO have confirmed that Brexit will have no consequence on UK membership of the European Patent Organisation, nor on the effect of European patents in the UK. European patent attorneys based in the UK will continue to be able to represent applicants before the EPO.
The following points have been agreed by the UK and EU negotiators of Brexit. Whilst the UK Parliament or EU Parliamentary can refuse to agree to these points, that is unlikely.
There will be a transition period which expires on 31 December 2020.
Registered EU Trade Marks, Community Registered Designs and Community Plant Variety rights granted before the end of the transition period will become comparable UK rights.
The comparable UK Trade Mark rights will retain all the same details as the originating EU registration including the filing date, priority date, UK seniority date, and renewal dates.
For Community Registered Designs and Community Plant Variety rights, the term of protection in the UK will be at least equal to the remaining term on the originating EU right. The filing date and any priority dates will be retained.
If there is an ongoing invalidation or revocation action as at the last day of the transition period which subsequently results in the originating EU right being declared invalid or void, any comparable UK right created as above will also be declared invalid or void. However, the UK will have the discretion to maintain the comparable UK right if the reasons for the decision on the originating EU right do not pertain to the UK.
The UK will also ensure that EU designations in International Trade Mark or Design registrations also continue to have comparable protection in the UK.
Owners of Unregistered Community Design rights will become the owners of an enforceable right in the UK, with the same level of protection and with a term of protection that should be at least the same as the remaining period of the Unregistered Community Design right.
Owners of a Registered EU Trade Mark that have a reputation in the EU at the end of the transition period will be allowed to enforce that reputation in the UK.
Rights exhausted in both the UK and EU as at the end of the transition period will remain exhausted.
The following points have been proposed but not agreed by the UK and EU negotiators of Brexit.
The transfer of an EU/Community Right into a comparable UK right will be free of charge to the holder.
The owner of an EU/Community Right will not be required to file an application to transfer those rights into a comparable UK right.
The owner of an EU/Community Right will not be required to have an address for service in the UK for the comparable UK right.
Regarding geographical indications/designations of origin/traditional speciality agreed designations - those entitled to use those terms on the last day of the transition period will be entitled to the same comparable right in the UK after the transition period expires.
Applications for supplementary protection certificates submitted before the end of the transition period to a UK authority will be governed by EU regulations.
Pending EU applications for trade marks and plant variety rights should be used as priority claims for new UK applications filed within six months of the end of the transition period.
EU representation rights should be granted to UK attorneys.
The UK's formal separation from the EU will have no impact on the granting of patents by the European Patent Office either now or in the future, and there will be no impact on the representation rights of UK attorneys before the European Patent Office. The European Patent Convention is not linked to the EU, and many of the current contracting states are not EU members.
Regarding the start of the Unitary Patent and Unified Patent Court, a legal challenge has been filed by a private individual with the Federal Constitutional Court of Germany (Bundesverfassungsgerichit, BVerfG) to the constitutionality of the German legislation enabling the ratification of the Agreement on a Unified Patent Court. In order for Germany to ratify the legislation, the BVerfG must firstly decide whether or not the challenge presents a serious issue for the court to consider, and if so then secondly whether or not the Agreement is unconstitutional. The deadline for interested parties to submit comments to the BVerfG was 31 December 2017.