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By Peter Leung
Aug. 16 — A U.K. body that regulates and represents patent attorneys said on Aug. 16 that it wants the country to participate in the European Union's planned Unified Patent Court and unitary patent system, even after Brexit.
The statement by the Chartered Institute of Patent Attorneys reflects strong support for the UPC and unitary patent among patent attorneys, but it also touches on the fact that it may be quite difficult for the U.K. to be in the UPC but out of the EU.
The professional organization said in a position paper that participation in the unified patent system—which would create a single patent right and patent court which would cover most of the EU—would be favorable to U.K. businesses.
The system will take effect once the founding agreement has been ratified by 13 countries. Furthermore, the UPC agreement says that the U.K. must be one of those countries.
On the other hand, the agreement does not allow for non-EU countries to take part. The Brexit vote has now created a question of whether the U.K. will ratify the agreement or even if it can even participate after it finalizes its exit from the EU (123 PTD, 6/27/16).
The paper appears to acknowledge this apparent paradox, noting that there would have to be a “solid legal basis” for the U.K.'s participation and it will have to be agreed upon.
The paper also summarizes the anticipated effect of the Brexit on other areas of intellectual property law.
It noted that many areas, such as the existing European Patent and practice before the European Patent Office will not change for U.K. companies and patent attorneys. This is because that system is open to non-EU countries, so the Brexit will not change the U.K.'s status in this regard.
There should also be little to no changes in areas such as trade secrets, because, according to the organization, U.K. law already exceeds the minimum standards required by the EU Trade Secrets Directive.
Other areas are less clear. For example, supplemental protection certificates, which extend the patent protection term for drugs that require regulatory approval before entering the market, are currently based on the first market approval granted in the European Economic Area.
This may have to change depending on the terms of the U.K.'s exit from the EU, but the paper suggests that the required changes may even result in a system that will be more favorable to patent owners.
The law relating to parallel imports may also change, the paper said. Parallel imports are genuine products purchased in one market and imported into another for sale without the trademark or patent owner's permission.
Like for many other issues, it said that any changes will depend largely on the still undefined relationship between the EU and the post-Brexit U.K.
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