WIPR survey: Readers disagree that Brexit means ‘total chaos’ for IP
WIPR readers disagree with a UK lawyer who said at the 2016 AIPPI World Congress in Milan that Brexit means “total chaos” for intellectual property.
On September 19, 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.
He noted that some key areas of the law, including on supplementary protection certificates, 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.
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.
Responding to WIPR’s recent survey, 78% of readers disagreed with Harris’ statement, while 22% agreed him.
Brexit means uncertainty
Agreeing with Harris, one reader said “it is total chaos because of the uncertainty of how this will be dealt with in all areas of IP”.
“The detail required to get an orderly exit will take years and years to sort out. We won’t be given years, by the government or by the EU, so the result will be chaos,” another reader added.
The backlash begins
However, another reader said that “Brexit will never be in force nor effective”.
One said that “there is a tradition of cooperation and collaboration between national and regional authorities on IP matters going back into the 19th century. It has persisted through two world wars, numerous lesser conflicts and government estrangements.
“The basic constituency of intellectual property rights creators and users will persevere and succeed despite bureaucratic and political bickering,” they added.
One reader simply said “no”.
Another said it is likely that the EU and UK will find a solution that will address all uncertainties, so it will not be chaos, “but the road might be a bit bumpy until a solution is agreed and implemented”.
“There are so many options available already drawn up by the Institute of Trade Mark Attorneys (ITMA). There is no reason for it to be chaotic at all,” another reader added.
“This is not total chaos,” one reader said.
Another said that there are “some issues to solve indeed”, but these are “not enough to make total chaos”.
Too absolute a description
One reader noted: “While there would be obfuscation with Brexit, a totality in chaos is too absolute a description. There should be resilience with change. It is unfortunate that the much-anticipated Unified Patent Court (UPC) will either be delayed or may fail to reach fruition, but only in current stated terms.”
The reader added that there should be room for re-writing the UPC if one party leaves.
“This poses a challenge, but it should be a resolution that the united remaining jurisdictions must endeavour to do. The totality of the jurisdictions and their welfare far outweigh the departure of one,” one reader said.
Another reader noted: “ITMA has drafted a comprehensive set of possible ways forward, placed on the ITMA website for public review and comment. With care and attention by the UK Intellectual Property Office, there will soon be a practical and coherent way forward, at least on the trademark side.”
Further, one reader said that “uncertainty is not the same thing as chaos. It’s an extremely unhelpful message for a UK lawyer to have made to the international IP community; the UK remains an important commercial market and an important place to file and litigate IP, with considerable expertise in this field. Nothing has changed yet and why would we assume that [things] would definitely change for the worse after Brexit?”
Another reader added “it is too early to say this, although UK IP lawyers could be forgiven for thinking it”.
IP has survived before
Some readers said that IP has faced challenges in the past and survived.
One said that “on the whole, IP is a logical set of rules that can be applied and reapplied whenever geographical boundaries change—eg, breakup of the Union of Soviet Socialist Republics”.
“IP legal practitioners also tend to be logical and calm in the face of a crisis and can quickly adapt to changes of circumstances. Whatever Brexit throws at IP, the law and the practitioners of IP law will deal with it and ensure that their clients’ IP benefits,” they added.
Another reader said that “the IP system has faced, and dealt with, far more tumultuous events in the past hundreds of years”.
Making headlines
Other readers commented that the quote has been used to make headlines, instead of informing IP practitioners.
“This is a total mischaracterisation of the situation and appears to have been uttered to make headlines rather than to inform concerned users of the IP systems in Europe,” said one.
Others said that the UK government would come up with a solution.
“The UK authorities will have plenty of time to chart a pragmatic path through the necessary changes, regardless of the actual terms of ‘Brexit’.”
For this week’s survey question, we ask: “In the trademark case In re Tam, which involves rock band The Slants, the US Supreme Court will decide whether section 2(a) of the Lanham Act is “facially invalid under the free speech clause of the First Amendment”. Should the answer be yes or no?”
