Brexit White Paper: Concerns over UPC but hope for science
The UK government published an official policy document yesterday setting out its Brexit plans, and while intellectual property doesn’t receive much of a mention, lawyers say there is still plenty to discuss.
In January, WIPR reported that UK Prime Minister Theresa May had outlined a 12-step plan that the government will use for negotiating Brexit terms, adding that the UK will not “seek to hold on to bits of membership as we leave”.
The White Paper, published yesterday, February 2, sets out these 12 “principles” in more detail.
May’s earlier speech sparked concerns that the UK will look to leave the Unified Patent Court (UPC) Agreement as part of the exit process.
This concern has been amplified by the recent paper, which in section two said: “We will take control of our own affairs … and bring an end to the jurisdiction in the UK of the Court of Justice of the European Union (CJEU).”
This is strangely inconsistent with the ongoing process of the UPC Agreement’s ratification and the advertisements placed for UPC judges, explained Gordon Harris, head of IP at Gowling.
“Given that the UPC Agreement specifically bestows ultimate appeal status on the CJEU, it is simply impossible for the government to adhere to its White Paper promise and proceed with membership of the UPC,” he said.
According to Harris, the only realistic interpretation is that the government proposes to go into the system and then leave the agreement when the UK exits the EU.
On a different note, section ten of the paper outlines the principle of ensuring the UK “remains the best place for science and innovation”.
There is no specific IP commitment, explained Graham Burnett-Hall, partner at Marks & Clerk.
However, he is confident that the government’s “position on trade and scientific collaboration suggests that it may be willing to consider continuing common IP initiatives where they are in the interest of the UK and, in particular, UK exporters”.
He added that this is entirely consistent with the government’s earlier decision to ratify the UPC Agreement.
Harris added that section eight, “Ensuring Free Trade with European Markets”, contained an acknowledgment of the value of IP.
The section also stated that “EU-wide systems facilitate the protection of IP”, explained Harris, but this was “without any suggestion as to how those systems will be replicated, or how we will deal with the UPC position, unitary trademarks or unitary designs”.
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