Everything you
need to know about Brexit and how it affects your IP

SPCs

The UK withdrew from the EU (Brexit) on 31 January 2020 and is now in a transition period that is currently expected to expire on 31 December 2020. During the transition period the UK will be treated as if it were a member of the EU and as a consequence the status quo as far as IP is concerned will be maintained. Although the future relationship beyond the end of the transition period between the UK and EU is still to be negotiated, there is now more certainty regarding the future as far as IP is concerned. Even in the case of a no deal being reached between the UK and EU by the end of the transition period (a no-deal Brexit), the position as regards IP is unlikely to change. The transition period is currently expected to expire at the end of 31 December 2020.

The position with respect to what will happen to Supplementary Protection Certificates (SPCs) at the end of the transition period is known in part, even if the finer details and administrative procedures are not.

The UK Government has approved draft regulations, The Patents (Amendment) (EU Exit) Regulations 2019, which set out what will happen to SPCs at the end of the transition period. A link to the text can be found here.

A UK SPC is a UK national right currently governed entirely by EU law. An SPC provides an additional period of protection for patented pharmaceutical products and agrochemicals after patent expiry. Following the end of the transition period, a UK SPC will remain a valid UK IP right. All existing SPC provisions will be retained in UK law and all existing rights and licences in force in the UK will remain. Pending UK SPC applications will also continue to be assessed on current criteria and it will be possible to continue to file new applications. The duration of an SPC in the UK will also be calculated based on the first authorisation to place the product on the market in the territory of the UK or the EEA. The same term of protection will thus remain applicable.

Please contact your usual J A Kemp adviser if you have any general queries or would like to assess specific implications for your business.

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