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Brexit and Intellectual Property – An Update

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October 30, 2019
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The European Union has announced that it will agree to the UK request for a further extension to the period in which the UK remains a full member of the EU (the “Article 50 period”) until 31 January 2020. This means that the UK will now definitely not leave the EU without a withdrawal agreement (so called “No Deal Brexit”) before that date. If a withdrawal agreement is ratified, then, although the UK may legally leave the EU earlier, in practice EU law will continue to apply to the UK until the end of a transition period that will last until at least December 2020. In particular, the UK would remain a full participant in the EU intellectual property systems (including EU Trade Marks and Community Designs) until the end of the transition period.

There remains considerable political uncertainty, and the UK is likely to see yet another General Election, and perhaps a further referendum on UK membership of the EU, so that the UK policy over Brexit is likely to vary over the coming months. However, the extension means that the legal situation in respect of EU intellectual property rights is clarified until at least early 2020. EIP continues to monitor the situation closely and will advise on the key developments.

EIP has maintained contingency plans to cover all the eventualities through this period of uncertainty, and we will continue to represent our clients in respect of EU-wide registered rights (EU Trade Marks and Community Registered Designs) as well as UK national rights. Meanwhile, the regime for obtaining patents in Europe is in any case unaffected by Brexit as the UK’s membership of the European Patent Organisation will continue unchanged. Therefore, EIP will continue to represent our clients in respect of both European and UK patents as currently.

If you have any questions about the issues raised in this update, please contact any member of the EIP Brexit Committee listed below, or your usual contact at EIP, by email or by calling +44 (0)20 7440 9510.

Darren Smyth

Claire Lehr

Paula Flutter

Andrew Sharples

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No language change at Central Division
08 October 2026
Proceedings before the UPC Central Division must be conducted in the language in which the patent was granted. There is no legal basis to change that language. In a revocation action concerning a German-language patent, the Paris Central Division rejected a request to switch the language of proceedings to English, and also rejected a subsidiary request to allow written submissions in English and hold the hearing in English, holding that Article 49(6) UPCA permits no derogation and reflects a deliberate legislative choice.
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Criteria for obtaining an order to produce evidence under Rule 190
07 October 2026
This appeal judgment clarifies that Rule 190 orders to produce evidence require three cumulative conditions: specificity, necessity and proportionality, and cannot be used for fishing expeditions. The Court of Appeal confirmed that first instance judges enjoy a broad margin of discretion when assessing such requests, and upheld the order requiring production of two fabric samples for ballistic testing. Both the appeal and the cross-appeal were dismissed.
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Court of Appeal focuses on the technical effect to determine added matter
30 September 2026
The Court of Appeal provided guidance on their approach to assessing added subject matter, highlighting that the technical effect underlying the invention and how the claimed and unclaimed features contribute thereto is central to the analysis.
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