The UK left the European Union on 31 January 2020 and we are now coming to the end of the withdrawal transition period. On 1 January 2021 a new intellectual property law regime will take effect. The below guide highlights the key changes you should expect and what steps you might need to consider taking to ensure that your company’s rights are protected.
Patents
Patents remain national, rather than regional, rights and as such there will be little real change to UK patent law following the end of the withdrawal transition period.
The European Patent Office provides a system under which rights holders can apply for a European patent to protect an invention in more than 30 countries in Europe but this is not a European Union-based system and patents still need to be ratified and granted on an individual national basis. Accordingly, Brexit does not affect the current European patent system and existing UK patents remain unaffected.
At the end of the transition period, the Patents (Amendments) (EU Exit) Regulations 2019 will come into force and will ensure that existing frameworks and systems will largely stay the same, with amendments to address some specific areas for patents and supplementary protection certificates.
Changes to patent law
From 1 January 2021, Community Plant Variety Rights (CPVRs) will no longer have effect in the UK. However, a comparable UK Plant Variety Right (UKPVR) will be created for every granted CPVR. While holders of overlapping patents and CPVRs will no longer be able to rely on the CPVRs to obtain a compulsory licence on a patent in the UK, they will be able to rely on UK plant breeders’ rights, including UKPVRs, to get such a licence.
Under current patent law, a party to proceedings before the UKIPO can be required to provide security for costs or expenses that may be incurred by the other side during the course of the proceedings, unless that party is an EEA resident. EU law provides an exemption for EEA residents whereby they cannot be ordered to provide security for costs or expenses in proceedings. From 1 January 2021, the exemption will no longer apply in the UK.
Changes to SPC law
EU law governs the regime for supplementary protection certificates (SPCs) for pharmaceutical products and agrochemicals in the UK and, as such, there will be a number of specific amendments to the law at the end of the withdrawal transition period.
SPCs are granted as national, rather than regional EU rights and, as such, it was not necessary for the UK to create comparable SPC rights to effect continued protection at the end of the withdrawal transition period. SPC applications that are pending on 1 January 2021 will still be examined under the current regime and any subsequent granted SPC will provide the same degree of protection as existing SPCs. For those EU-specific provisions that currently apply to SPCs, UK law has been amended to apply similar provisions.
On 1 January 2021, Authorisations from the European Medicines Agency will be converted into equivalent UK authorisations. While this will not affect the validity of an SPC, the holder may be required to provide information to be recorded on the UK register.
Under current EU law, SPCs which protect medicines that have been tested for paediatric use can be extended for six months. After the end of the withdrawal transition period, eligibility of medicines for this extension will be assessed using the UK’s Human Medicines Regulations 2012.
Finally, the manufacturing waiver to the SPC system that was introduced by EU law in July 2019 is being modified and finalised so that it fits UK law.
For more information on the topic, please contact Hannah Fawcette.
