Protecting innovation in ‘Brexit Britain’
Summer is nearly over and all eyes will be on Westminster and Brussels in the coming weeks as Brexit negotiations resume in earnest. The provisions of the draft EU Withdrawal Agreement relating to IP rights are largely agreed, in particular providing that nothing substantive will change during a proposed transitional period to the end of 2020.
However, as the politicians often say, nothing is agreed until everything is agreed. With little sign yet of a deal being concluded soon, the eventual impact of the UK’s departure from the EU remains unknown.
It’s no surprise that businesses are well advanced in Brexit planning with a recent CBI survey revealing that 61% of businesses are developing plans for a ‘no-deal’ scenario. Supply chains, recruitment, regulation—all will be disrupted by Britain’s leaving the EU. IP is no different and businesses should take steps now to ensure that whatever the final outcome, their hard-won IP is protected. Below we outline some key IP rights that may be impacted by Brexit, and strategies for minimising the risk.
Patents
The good news is that the process for obtaining patents in the UK will not be affected by Brexit. UK patent protection is obtained by way of either national patents from the UK Intellectual Property Office or European patents granted by the European Patent Office, which was established by the European Patent Convention (EPC). Neither patent office is an EU body, and the UK will remain a contracting state to the EPC.
That is not to say that Brexit will have no impact. Supplementary protection certificates, for example, which are of great importance for pharmaceuticals, are governed by an EU regulation and it is not clear what the UK government proposes to replace this with following Brexit. Hopefully the UK government will adopt policies that foster innovation.
The UK government has also stated in its “Chequers plan” that it wishes to remain in the proposed unitary patent and Unified Patent Court system, currently on hold pending the outcome of a challenge being heard by the German Constitutional Court. Although the UPC, strictly speaking, is established by a non-EU, multilateral treaty, it is intertwined with EU law and the unitary patent itself is the creature of an EU regulation. Continued participation by the UK will therefore require political agreement.
Trademarks and designs
Brexit promises a major change to trademark practice in the UK. Many businesses have chosen to protect their trademarks with EU trademark (EUTM) registrations. During the proposed transitional period EUTMs will continue to apply in the UK and be recognised and enforced—on an EU-wide basis—by the UK courts.
The draft EU Withdrawal Agreement further provides that at the end of the transitional period, holders of registered EUTMs should automatically be granted a comparable right in the UK. But in a “no deal” scenario, EUTMs will from an EU law perspective cease to apply to the UK from March 30, 2019.
