AIPPI 2016: Brexit means total chaos, says UK IP lawyer

18-09-2016

AIPPI 2016: Brexit means total chaos, says UK IP lawyer

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Brexit does not mean Brexit—it means “total chaos”, said one IP lawyer speaking at the 2016 AIPPI World Congress in Milan today.

In a strongly anti-Brexit presentation, Gordon Harris, partner at Gowling WLG, “apologised” from the majority of the UK IP profession, who he said did not want Britain to leave the EU. 

Harris reminded the audience of the breakdown of UK patent law, which is framed by British and EU legislation as well as international treaties, most prominently the European Patent Convention (EPC). 

Because the EPC is not an EU treaty, there will be no changes in that area after Brexit, he said. 

However, Harris noted that some key areas of the law, including on supplementary protection certificates (SPCs), are based entirely on EU legislation.

“This is a very important issue,” he said, noting that the majority of patent infringement cases in the UK cover the pharmaceutical sector.

Most importantly for pharma companies, there is no SPC law in the UK as SPCs are based on EU regulations. These are then interpreted by the Court of Justice of the European Union (CJEU) and the judgments applied by UK courts. 

Following Brexit, all EU legislation and regulations (apart from related international law) will expire and disappear from UK law, Harris said. 

“That is the hard truth. Brexit means chaos,” he said, despite Prime Minister Theresa May’s claim that “Brexit means Brexit”.

“This is a serious issue for the pharma industry and investment in the UK,” he added.

Harris said he was reasonably sure that existing SPCs will continue in the UK, but the impact of CJEU decisions on them will be unclear. For example, the rulings could be advisory or even ignored, with the latter option not being completely impossible, Harris said. 

Discussing the possible trade arrangements post-Brexit, Harris said “nobody really knows” which direction the government wants to go in. 

Under one option, the European Economic Area, some EU law would be adopted by incorporation, probably including SPC regulations, he explained.

If the UK picked the European Free Trade Agreement, Britain could legislate to incorporate EU law (whichever it wants), but again there would be questions over CJEU rulings, according to Harris. 

The “Switzerland option” would allow the UK to re-enact EU law in parallel to that legislation. Because EU law would not actually be incorporated into UK law, and Britain would need to legislate under this option, Harris said this might suit the “sovereign” argument from Brexiteers, ie, that Britain wants more sovereignty. 

Harris concluded that while the UK will still be an attractive place to litigate and transact IP, there are lots of issues to iron out. 

The 2016 AIPPI World Congress runs until September 20. 

AIPPI, 2016 AIPPI World Congress, Brexit, IP, Gordon Harris, Gowling WLG

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