Brexit – An IP perspective, where to now?
Intellectual property rights have not escaped the waves of uncertainty created by the United Kingdom’s decision to leave the European Union, or “Brexit” as we’ve heard it referred to over the last few months. The UK’s obligations to the World Trade Organisation, and the widely accepted view that harmonisation of IP laws is advantageous, should prevent any wholesale changes being made to this area of law. However, the integration of the UK’s IP system with the EU means that changes to the way IP is protected and enforced in the UK are inevitable. While it is unclear precisely what those changes might be, and how they will be implemented, some of the issues that are likely to arise are discussed below.
At the moment, one way of obtaining an enforceable patent in the UK is to file with the European Patent Office (EPO), which will consider whether to grant the patent. Upon its grant, the application must then be validated in the UK (and any other EU member states of interest).
The European Patent Office (which was created by the European Patent Convention) is a separate organisation to the EU; several non-EU countries, including Iceland, Switzerland and Norway, are members of the EPC. The EPO confirmed in a statement released on 24 June 2016 that the UK referendum will have no consequence on the UK’s membership with the EPO. Accordingly, we do not foresee any changes to the UK patent system, and expect that:
- European patent applications will continue to be available in the UK, and
- Existing patents will continue to have legal effect in the UK.
That said, it is unclear whether the UK will now be able to participate in the incoming Unified Patent Court (UPC) system, which is designed to create a single system for patent registration and litigation and was expected to become operative as early as this year. The UPC system is an EU initiative, and as such only applies to EU members. The EPO has sought to reassure the public that it “expects that the UK and the participating EU member states will find a solution as soon as possible which will allow a full implementation” of the UPC. However, even if the UK remains a part of the UPC system, the UK referendum is nonetheless likely to delay its implementation.
Trade marks can be protected in the UK through either a national registration or an EU registration (EUTMs). EUTMs are a likely casualty of the UK referendum. Hopefully the UK government minimises disruption by creating a transitional mechanism that automatically converts EUTMs to UK trade marks; otherwise traders may be required to re-apply to protect their EUTMs in the UK. Other likely consequences include EUTMs used only in the UK becoming vulnerable to revocation for non-use.
In the future, new trade mark applicants may be required to file separate trade mark applications in the UK and EU, though as the Madrid Protocol (which allows trade marks to be registered in multiple jurisdictions) is separate from the EU, national UK trade mark rights should continue to be available through this system.
Like the EUTMs, existing Registered Community Designs (RCDs) are likely to cease to apply in the UK once it formally leaves the EU, though transitional arrangements may be put in place. In future, design applications may need to be filed in both the UK and EU.
EU member states currently grant owners of unregistered designs three years’ protection from the date of first publication. These rights may cease to exist in the UK.
As copyright is governed by domestic legislation in the UK, it is unlikely to be altered to any substantial degree once the UK leaves the EU.
IP owners should identify which of their rights are now likely to be affected and may need further application/ registration in order to achieve maximum protection over that right.
It is likely to be some time before the UK clarifies what changes will be made to its IP system, and those changes are unlikely to take effect for some time. However, in the short-term Wrays recommends taking steps to identify new potential risks and opportunities that may result from the Brexit result. These potential reforms should also be kept in mind when seeking to protect IP rights in the UK and EU, and reviewing and developing IP protection strategies generally. Wrays also recommends reviewing contracts and precedents to ensure that the terms properly account for the UK’s new political climate.