The implications of Brexit regarding the relationships in the intellectual property field

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British Prime Minister Theresa May declared that the Brexit negotiation process will begin by trigering article 50 which means that in 2019 the UK will leave the EU. She has also announced a bill that will incorporate EU legislation into British law which is reassuring for IP owners and IP Law firms but it does not cover the subject of what will happen to existing or new trademark applications after the Brexit.

Duncan Ribbons, partner at Redd Solicitors, states that although a good idea, encapsulating EU legislation into British law is not the solution for all IP issues which arise from Brexit. From Britain’s relationship with the EU after the Brexit various details wich will have to be clarified will arise.

David Rose, partner at Mishcon de Reya, is convinced that the IP rights domain is the area in which the extrication of the EU and British laws will be more complex because the future bill will have to ensure that the owners of existing EU IP rights will be able to preserve their rights in the future.

A spokesperson of CIPA (Chartered Institute of Patent Attorneys) said that UK leaving the EU will not affect patent holders and will prevent UK patent attorneys from carrying out European patent work.

For non EU countries to participate in the Unified Patent Court it is necessary that they accept the sovereignty of Eu law which comes in direct contradiction with the aim of Teresa May, that is to end the authority of EU law in Britain. This is why if there is no hope for UK to remain part of the UPC after Brexit there will be little hope that UK will ratify the UPCA.
For the UK to be able to continue participating in the unitary patent system and the UPC agreement post-Brexit a mechanism for achieving this goal is necessary. This type of mechanism will require UK to recognize the supremacy of EU law and to submit to the jurisdiction of the Court of Justice of the European Union (CJEU) stated David Rose, partner at Mishcon de Reya. He added that even if it is only in the context of the UPC UK will have to submit to EU laws going beyond patent law, like for example competition law. Rose said that this will be hard to achieve in the current political context where the main idea is that the UK should reclaim control.

Specialists believe that a pause in the that a pause in the UPC process is not a bad thing because it could give the opportunity to consider how the UPC might be adjusted to accommodate not only UK after Brexit also other countries.

The British Association of the International Federation of Intellectual Property Attorneys (FICPI-UK) said that further economic studies should be conducted in order to decide if the UPC system should go ahead without the UK.

Source: Article “Brexit: May unveils article 50 trigger plans; lawyers discuss IP implications” written by Sashkin / (