Patents: should I still apply for a European patent?
The term "European patent" is used to refer to patents granted under the European Patent Convention (EPC). However, a European patent is not a unitary right, but a group of independent nationally-enforceable patents.
The European patent with unitary effect (EPUE), more commonly known as the unitary patent was to be granted by the European Patent Office and would have been valid in 26 countries. It was intended to cut down on the cost, administration and enforcement of a patent across many European jurisdictions by implementing a single renewal fee, single ownership, and a single court (the Unified Patent Court). However the unitary patent is a creation of the European Union and so the UK would be excluded from the unitary patent scheme if it is no longer a member of the EU when the scheme comes into being.
However the current European patent system should not be affected by Brexit because the EPC is not a European Union instrument. The EPC, a multilateral treaty instituting the European Patent Organisation and providing a legal system according to which European patents are granted currently, has 38 contracting states, including Switzerland, Norway and Turkey who are not members of the European Union. There is no reason to believe that the UK should not remain a party to the EPC.
So post Brexit, a UK business can still file a European patent. Patents granted by the EPO still have to be validated at the country level, which would not have been necessary under the proposed unitary system.
Trade marks: what about my European Union trade mark?
With regard to trade mark legislation, Brexit could have an impact on the European Union trade mark system. European Union trade marks are a unitary trade mark right and cover all 28 EU member states, including the UK. If the UK leaves the EU, the EU European Union Trade mark Regulation would no longer apply in the UK leaving the holders of European Union trade marks with no protection in the UK unless they also own a UK trade mark. It would be a very expensive exercise to require the owners of existing European Union trade marks to re-register their rights in the UK, so it would be plausible to suggest that the UK would protect European Union trade marks registered before Brexit. For UK businesses it still makes good sense to apply for a European Union trade mark where the business operates in the EU, but new applications may have to be sought in the UK in the future in order to protect right holders.
Data Protection: what measures should my business take currently?
The General Data Protection Regulation (GDPR) will replace the current data protection Directive on 25th May 2018 and will be directly applicable in all EU member states without the need for implementing national legislation. If the UK chooses to diverge its data protection legislation (currently the Data Protection Act 1998) from the GDPR it will become more difficult to export data to and from the EU and UK (without putting in place EU model clause contracts).
The Information Commissioner's Office (ICO) has stressed that if the UK wants to trade with the EU on equal terms it would need to prove its data protection legislation is equivalent to the GDPR framework. It is likely that the ICO will consider it necessary to push forward with proposed reforms contained within the GDPR. As such organisations would be best placed to continue to plan for the implementation of the GDPR as if it was still due to come into effect in May 2018.
If you have any other questions please don't hesitate to contact Peter Galloway or Julie Nixon