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Who ya gonna call? (in case of Brexit)

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IMG_8533-1Now that we’ve had the General Election in the UK and the Conservatives have returned to power on their own, it looks like we’ll be getting a referendum asking whether we should stay in the EU or leave (the “hokey-cokey” referendum).

Against this political backdrop IPcopy has become aware of half-heard rumours suggesting that the possibility of the UK exiting the EU could be used in the run-up to the referendum to suggest that UK based European Patent Attorneys are not a safe bet for patent applicants outside Europe. As the story goes, because the UK could be booted out of the EU, this would have some kind of knock on effect on the ability of UK-EPAs to represent effectively at the EPO.

IPcopy would like to point out to anyone that may have heard something similar that this is clearly a load of tosh.

Firstly, the UK is unlikely to leave the EU.

What will happen is that Big Dave will go to Europe and secure some concessions for the UK. Probably not the ones he really wants but enough for everyone involved to save face – think the right to bendy bananas* and more powerful vacuum cleaners again….

The campaign to keep the UK in the EU will then crank into full gear: K.C. and the Sunshine Band’s “Please Don’t Go” and The Clash’s “Should I stay or should I go?” will get plenty of airplay and the Powers-That-BeTM will impress upon us that leaving the EU will mean that the UK “is headed for a disaster of biblical proportions. …..Forty years of darkness! Earthquakes, volcanoes…Human sacrifice, dogs and cats living together… mass hysteria!”

That sort of thing….probably.

Faced with that kind of campaign the UK will almost certainly choose to stay in the EU. And if we don’t?

Well, UK European Patent Attorneys will still be EP patent representatives. The potential lack of EU status will not impact on the ability of UK-EPAs to represent applicants at the EPO since the UK is separately a signatory to the European Patent Convention. It should be borne in mind here that there are currently 38 EPC contracting states but only 28 EU states so clearly membership of the EU is not a prerequisite for being an EPA.

And what of the unitary patent and unified patent court? Well, if the UK leaves the EU then it will mean that it will not be possible to gain protection in the UK by validating a granted EP patent as a unitary patent. Instead a separate UK designation will be required or a direct UK patent.

However, it is not clear whether London will still host part of the central division of the UPC. As noted here, the UPC Agreement actually states that a section of the central division will be in London and there’s nothing in the Agreement that actually requires the court to be in the EU.

As far as representation in front of the UPC is concerned then UK-EPAs would still be eligible to represent clients at the UPC via the Article 48(2) route as long as they had the “appropriate qualifications”.

So, there you have it in a nutshell. A UK exit from the EU is probably unlikely but even if it happens you can still use UK-EPAs!

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Mark Richardson 18 May 2015

*Yes, IPcopy is aware that the bendy banana story is an EU myth!


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