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Brexit – IP Myths and Misconceptions

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brexit-1481028_1920As far as IPcopy is concerned, the level of political debate recently has not risen much beyond playground banter with facts and detailed arguments being sacrificed for soundbites and quotable political mantras such as “Let’s take back control”, “Let’s make Britain/America great again”, “We’re gonna build a wall” etc. It seems politics these days just requires the collective unconsciousness to be exposed to such sayings over a long enough period of time to ensure the votes follow…after all, who needs experts, eh?

Following the collective brain fart that was the UK’s decision to vote to leave the EU, IPcopy had hoped that discussion of IP matters at least might be a little more balanced. In the days that have followed however our Inbox has received many Brexit briefing notes from our continental cousins that have presented, how shall I put this, the odd interesting viewpoint on what might happen going forward. Not wishing to allow such statements to go unchallenged, IPcopy hereby presents an initial selection of some of the items that have caught our eye. We’ll add to this list if we see any more examples. Feel free to submit any further examples either via the comments below or the blog email.

Number 2 is a doozy.

1) What was said: “After the Brexit vote, the remaining Member States will have to re-negotiate the Unitary Patent system …. Patent applicants could of course file one national patent for the UK and a Unitary Patent for the rest of the EU,..”

Who/Where: Dr Boris Uphoff/Laura Morelli writing on IPwatchdog.com

Reality: In a discussion about the unitary patent which, as described below, is essentially a “super validation” option for a granted EP patent it seems a little strange that the authors should refer to a “national patent for the UK.”

Indeed, IPcopy is uncertain whether the reference to a national UK patent instead of a European patent designating the UK was intended by the authors.

In any case, it should be noted that if the UK doesn’t take part in the unitary patent system the UK WILL still be part of the European Patent Convention and so it will still be possible, post-Brexit, to obtain patent protection in the UK via the normal EP validation route.

Brexit will have no impact on the EPC (or for that matter the PCT) as it relates to the UK.

As far as the unitary patent system is concerned it is noted that the unitary scheme effectively provides a “super validation” option which confers unitary protection in the EU member states participating in the unitary patent scheme.

Countries outside of the unitary patent scheme may still be protected via the current, traditional EP validation selection (e.g. Spain which is an EU member state but which is not taking part in the unitary patent scheme, or Switzerland which is not an EU member state).

2) What was said: With the current political mood in the UK it can of course not be ruled out that the UK might even consider leaving the European Patent Organisation

Who/Where: Dr Christian Köster in Patent Lawyer Magazine/Dennemeyer website in the not-at-all hysterically titled article “Brexit: Sudden death for your IP rights?”

Reality: No, just no!

The European Patent Organisation is an intergovernmental organisation that was set up in 1977 on the basis of the EPC. There are currently 38 member states, ten of whom are not EU member states!

The UK will remain a part of the EPC after Brexit (see EPO statement), and UK patent protection will be obtainable via a European patent application in the same way that it is now. To suggest or imply otherwise is just wrong!

IPcopy would also like to reassure Graham Norton that his presenting job is not under threat as we can confirm that the UK is not planning on leaving the Eurovision Song Contest either!

12 July 2016

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