The effect of Brexit on Intellectual Property


The UK exits the EU on 31st January 2020. By virtue of the transitional period in the Withdrawal Agreement, EU law will continue to apply in and in relation to the UK only until the 31st December 2020. The EU Treaties, EU free movement rights and the general principles of EU law will then cease to apply in relation to the UK, and prior EU regulations will only continue to apply in domestic law  insofar as they are not modified or revoked by regulations under that 2018 Act.
  
IP law is one of the most harmonised law networks across the UK and Europe, with a large majority of the UK legislative framework composed of directly effective EU Regulations and Directives. Depending on the type of Brexit envisioned by PM Boris Johnson, if these regulations are not transposed they face entering into a regulatory vacuum.

The European Union Withdrawal Act 2018, will fully come into action on January 31st and it will repeal the European Communities Act 1972. The act includes provisions to convert currently directly applicable EU laws into domestic UK law. MPs will then go through each law and decide whether to amend or repeal them, based of national interests.

Implications

Implications of Brexit still remain very uncertain and are likely to be effected by both the repeals and amendments of EU laws as well as the terms of international agreements negotiated. This following post will cover three of the main implications of Brexit.

Patents

Patent approval will continue to remain as before, with patents covering the UK able to be granted by both the UK Intellectual Property Office (UKIPO) and the European Patent Office (EPO). This is because neither EPO or UKIPO are EU institutions therefore their operation will be unaffected by Brexit. The UK will continue to be a member of the 38 contracting states to the European Patent Convention (the treaty that established the EPO), therefore companies will be able to continue to file their applications with the EPO and request validation in countries of interest including the UK. The outcome of granted patents will continue to remain the same, with granted and approved patents for the UK having the same legal effect in the UK as national patents granted by the UKIPO.

There plans to be an introduction of a new Patent regime which is intended to provide patentees with the option to apply for pan-EU Unitary Patent, covering the majority of the EU. Through this regime the Unified Patent court will be created (UPC), which will hear and determine patent disputes on an EU-wide basis. (UPC).
This regime has faced challenges in its implementation, where its future was uncertain after Brexit and is currently delayed in the German courts. The UK ratified the UPC agreement in 2018, (UK ratification is needed in order for the system to launch) .The message from US companies and practitioners clearly is that the UPC would be less attractive without the UK. Patent law is a global playing field in which the US, Europe and Asia are the main regions and direct competitors. It does seem to be in the best interest of Europe if the UPC covers the largest possible territory; at least this seems to be a clear industry position. UPC is not an EU instrument and it remains legally possible for the UK to remain a member; it is whether politically there will be tensions.

Life Science Regulation

The UK’s life science regulation has already been affected by Brexit, with the European Medicines Agency which was previously based in London moving to Amsterdam. With a “soft Brexit” of continued affiliation with the current system rejected by the government, organisations have to be ready to adapt to the regulatory framework that will be reshaped.
One of the biggest worries facing the UK pharma industry would be the exclusion of the UK from operating in the European Digital Single Market (DSM). This market was created to promote common data practice laws, greater acceptance of digital services and better access to products and services. The DSM is of particular importance to the UK because currently the EU is the UKs largest export market for digital services and the DSM allowed for easy entry to the European markets. Therefore, Brexit has a substantial effect on the data protection, privacy and creative content production as UK service providers may lose their passports to EU markets because companies need an EU headquarters to access the service market.
Conclusion
Brexit is going to be a complicated affair for all businesses in the UK but the IP field faces harsher implications of tougher negotiations. With recent statements made by the Chancellor Sajid Javid that the UK will deviate from EU laws, this would create woes for the UK IP industry, given the high interconnected trade and harmonisation. The UK will not be able to influence EU policy potentially undermining the position of UK based IP and IT companies in both Europe and the world stage (especially with the US considering the UK may be seen as a second class citizen without a voice in Europe) ultimately making it more difficult to compete.

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