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Accordingly, European Patent Applications filed by Israeli companies will continue
to cover the UK, and Israeli applicants can continue to be represented by UK-based
European Patent Attorneys before the European Patent Office (EPO).
Unified Patent System
The one patent matter in particular that remains uncertain is the future of the Unitary
Patent Agreement (UPA) and the Unified Patent Court (UPC).
At present “classical” European Patents (as discussed above) provide a bundle of
separate national patents, each effective in only those states in which it is validated,
and which may be centrally opposed only during a nine-month opposition window
following grant. Under this present system, infringement is dealt with under national
law by national courts in individual states.
Under the Unified Patent System, for Unified Patent System contracting states,
patentees will have the option of validating a European Patent as a singleUnitary Patent
for the purposes of infringement, validity and ownership. Existing “classical” European
Patents validated in UPA contracting states will also be subject to the jurisdiction of the
UPC unless they are opted out of the new system. This new system was due to come
into effect in 2017.
While the UK is still part of the EU, the Unified Patent System can only come into
effect if formally approved by the UK, France and Germany. The UK Government
has just about completed the work to enable approval of the Unified Patent System.
However, approval of the Unified Patent System may well be a low priority for a UK
Government dealing with the very many Brexit-related issues.
If the UK Government has not approved the Unified Patent System before the UK
leaves the EU, then although the system could then come into force if approved by
France, Germany and Italy, we would expect that the Unified Patent System would
need to be revised, for example, to remove London as a Central Division of the UPC.
The levels agreed – after significant negotiation – for renewal fees will also likely need
to be revisited, and some countries may wish to use Brexit as a reason to renegotiate
the language regime to reduce the emphasis on the use of English within the system.
Thus, Brexit will most likely delay the coming into effect of this new system for some
time. There is also considerable uncertainty surrounding whether or not the UK will be
part of the new system. Furthermore, there is some concern that the new systemmay
now never come into effect at all.
European Trade Marks and Registered Design Rights
Nothing will change with regard to European Registered Community Designs (RCDs)
and European Union Trade Marks (EUTMs) until the UK actually leaves the EU, or until
legislative changes are brought into effect. This is likely to be at least two years away.
After the UK leaves the EU, the position for EU-derived rights such as RCDs and
EUTMs is not certain. EUTMs and RCDs are both governed by EU law; law that will no
longer apply in the UK once it leaves the EU.
However, it is anticipated that a procedure will be put in place in the UK to allow
the owners of EUTMs and RCDs to convert / grandfather existing applications or
registrations into UK Trade Marks and UK Registered Designs. It is not yet known
what the mechanism for conversion will be, or whether it will be necessary to pay an
official fee in order to obtain corresponding UK registered rights.