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      Your intellectual property

       

      Current state of play

      • EU member states benefit from a range of pan-EU intellectual property regimes. These include pan-EU IP rights, like EU Trade Marks and Registered Community Designs, and central administration schemes, like the European Patent Office (which also extends beyond the EU). These systems create economies of scale for owners of multinational IP portfolios. 
      • A new EU unitary patent system is due to be introduced in the next few years.
      • Many domestic UK IP rights stem from EU law. UK courts must interpret those rights in line with decisions of the EU Court of Justice.
      • National courts in the EU can, in some cases, issue pan-EU injunctions against IP infringers.

       

      What should I be thinking about now?

      • Portfolio management – Do I need to make any changes to my filing and management strategy to ensure my unitary EU IP rights (including any new unitary patents) would be protected in both the EU and UK post-Brexit?
      • Enforcement – Would I still be able to rely on any existing injunctions to protect my rights - in the UK or in the rest of the EU - post-Brexit? Which courts should I be applying to in any litigation I am currently planning in order to get the most effective remedies?
      • Licensing – Are my existing licensing arrangements ready for a Brexit? If the UK leaves unitary schemes, will my existing licences cover transitional or successor national rights in the UK? Should I be thinking about including special provisions in any new licences to cover transitional or successor national rights?
      • IP diligence – If I am buying or selling a business, what would be the potential impact of a Brexit on the target’s IP licences and on security over the target’s IP rights?

       

      What could the position be following a Brexit?

      The answers to many of the above questions would depend on the nature of a post-Brexit UK/EU relationship.

      To give an idea of the range of possible outcomes, we have considered what the position would be under the ‘Norwegian option’ and the ‘World Trade Organisation (WTO) option’ – on the basis that these are at opposite ends of the spectrum of existing models for an alternative relationship with the EU.

      What if the UK left the EU, joined the European Free Trade Association and remained a member of the European Economic Area (EEA)? (the Norwegian option)

      • The UK would continue to participate in the European Patent Office.
      • Unitary EU IP rights, eg EU Trade Marks and Community Designs, would not continue in the UK. Parliament might introduce new ‘successor’ IP rights. However, this could cause issues with existing IP licences, security over IP rights, and judgments and injunctions in IP proceedings.
      • National rights based on or influenced by EU directives, eg copyright, supplementary protection certificates, national trade marks and national designs, would continue. It is likely that they would remain aligned with EU law as most relevant directives apply to the EEA.
      • Exhaustion rules prevent trade mark and design right owners from using their IP rights to restrict the sale of goods that have been put on the market in the EEA with their consent. These rules apply EEA-wide, and so would be unchanged from the present position.
      • The new unitary patent system would be vulnerable to a Brexit. Not only is the new system limited to EU member states, but the UK must also ratify the agreement for the new system to come into effect. A Brexit would require the existing agreement to be re-written, and the new unitary patent rights to be extended to the UK as a non-EU jurisdiction.

      What if the UK left the EU without any form of free trade agreement? (the WTO option)

      • The UK would continue to participate in the European Patent Office.
      • Unitary EU IP rights, eg EU Trade Marks and Community Designs, would not continue in the UK. Parliament might introduce new ‘successor’ IP rights. However, this could cause issues with existing IP licences, security over IP rights, and judgments and injunctions in IP proceedings.
      • National rights based on or influenced by EU directives, eg copyright, supplementary protection certificates, national trade marks and national designs, would continue. The UK would be unlikely to diverge quickly from existing EU law without repealing existing domestic legislation.
      • Current exhaustion rules would mean that trade marks and design rights could be used to restrict imports from the UK into the EU. New rules would need to be agreed with the EU to maintain the present position and avoid price differentials arising between the UK and the EU.
      • The new unitary patent system would be vulnerable to a Brexit. Not only is the new system limited to EU member states, but the UK must also ratify the agreement for the new system to come into effect. A Brexit would require the existing agreement to be re-written, and the new unitary patent rights to be extended to the UK as a non-EU jurisdiction.
      • UK courts would no longer be required to interpret UK IP law in light of EU rules. This could result in a gradual divergence of UK and EU IP law.