IP laws after Brexit: what would be best?

brekApples is apples. All are of the dust, and all turn to dust again. And Brexit means Brexit.

A large proportion – perhaps 70 to 80% – of UK IP laws are based upon or affected by EU laws. What is to happen to these laws when the UK leaves the EU? According to a recent announcement by the UK government, there will be a Great Repeal Bill, which will continue EU laws in existence as domestic UK laws until they are individually revised or repealed. This announcement is welcome, but it leaves many questions in the IP field unanswered. Some of these are listed below.

  1. What about laws that are in the pipeline of EU legislation and come into effect after Brexit? For example, what about EU directives currently in place that require member states to implement national legislation by a future date that falls after Brexit?
  2. What about pan-European IP that is currently in existence, such as EU trade marks and EU registered designs? Will they continue to exist as UK rights after Brexit, and if so, how? As purely national rights or as part of a larger EU system?
  3. Will it be possible for the UK territory to be included in pan-EU IP rights that are registered after Brexit? Could there be a new treaty that extends these rights to non-EU countries including the UK and Switzerland?
  4. Or if the answer to question 3 is no, will the UK introduce equivalent rights in the UK? For example, will the UK introduce UK-only database rights, supplementary protection certificates, data exclusivity laws and orphan drug rights?
  5. If the UK does not agree with the EU to be part of a future pan-European IP system, but introduces equivalent UK rights through domestic laws, will the UK courts follow EU case law on the interpretation of those laws?

dustIP Draughts attended a meeting of practitioners last week, at which the consensus was that it was in the UK’s commercial interests for future UK IP laws to be aligned, as closely as possible, with equivalent laws in EU countries. But how will this be achieved, if the case law of the EU and the UK diverges over time?

One answer would be for the UK courts to follow the approach taken by the CJEU and other senior EU courts. But recent statements by UK government members suggest that it is a central part of Brexit that the UK will be relieved of any obligation to act in accordance with the judgments of the CJEU. If that continues to be the UK government’s position, even in technical commercial subjects such as IP, then the most we might hope for is that the UK courts will take notice of EU judgments and seek alignment were possible. This could be by an informal nod-and-a-wink on the part of the UK judges, or could be enshrined in UK legislation that says, in effect, we are free to do our own thing but if we think it is sensible we will follow EU law. Would this approach be politically acceptable? Who knows.

A similar question arises in relation to the Unified Patent Convention. According to a recent opinion by Richard Gordon QC, it is technically possible for the UK to participate in the UPC after Brexit. But this would require agreement among various stakeholders, and would almost certainly require the UK to accept the supervisory jurisdiction of the CJEU. This last requirement is likely to stick in the craw of the Brexiteers, at least according to some of their recent pronouncements.

applesPerhaps, in time, the UK government will realise that, in some areas of international trade, giving jurisdiction to EU institutions is in the UK’s commercial interests and does not significantly dilute the principle of sovereign independence. Coming to this realisation will require a suppleness of thinking that is currently lacking in those responsible for Brexit in the UK government.




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Filed under Intellectual Property, Legal policy

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