The UK Government recently published proposals for how to address the 40 years of EU law that will cease to have effect in the UK when Brexit is complete.  The UK Government’s plan is to convert all EU law, and accompanying case law, into UK law on the day the UK leaves the EU in order to provide a predictable and simple mechanism.  This policy announcement confirms that Brexit’s effect on intellectual property (IP) will likely be mitigated by appropriate UK legislation.  The UK Government plans to complete this process before Brexit occurs, i.e. within the next two years (the shortest likely timeline for Brexit, following the UK’s announcement in late March).

The proposals are currently in general terms and do not expressly mention IP. However, the UK Government’s stated aim is to provide a smooth and certain transition into the post-Brexit era. Indeed, the White Paper includes a foreword from the UK Prime Minister where she explains that “[t]he same rules and laws will apply on the day after exit as on the day before” in order to “provide maximum certainty as we leave the EU”.  It is reassuring to have confirmation of the UK Government’s “business as usual” approach.

Overview

The main proposals are set out below:

• The UK Government intends to convert existing EU legislation into new UK legislation.  The UK Parliament can then amend this legislation after Brexit, if desired, in the usual way.
• To complete this conversion process successfully, some of the new UK legislation will need to be amended relative to its EU counterpart before it comes into force after Brexit.  Much of this  amendment is expected to be achieved through secondary legislation that offers a quick route to make the consequential amendments required following Brexit.
• The UK is currently subject to the jurisdiction of the Court of Justice of the European Union (CJEU), which interprets EU law. The UK Government’s proposal is that CJEU case law interpreting EU-derived legislation will still apply after Brexit to provide continuity. This will be achieved by giving CJEU decisions the same precedential status as UK Supreme Court decisions, fixed on the day that Brexit is complete. As a result, while it is then possible for the UK Supreme Court to change the earlier CJEU interpretation of that legislation post-Brexit, in practice this is likely to be a slow evolution.

While these proposals do not specifically mention IP, those forms of IP that are generated by EU law seem likely to be preserved in the UK, given the clear commitment that the “same rules and laws will apply on the day after exit as on the day before”.  Of course, we are currently at an early stage, and in some instances considerable amendment will be necessary to achieve this objective.  Our preliminary thoughts on this process are set out below for patents, trade marks, designs, supplementary protection certifications (SPCs) and regulatory data protection (RDP).

Patents

The European Patent Office (EPO) is not an EU institution, so Brexit will have no effect on the current patent system.  Post-Brexit, patent applications filed by Carpmaels at the EPO will still cover the UK (via conventional national validation), and they will be litigated in the UK national courts as usual.

The UK is continuing to push forward with the creation of the new Unitary Patent (UP) later this year. Although the UP will be granted by the EPO as an alternative to conventional national validation, it is an EU project based on an EU regulation. Given the UK Government’s announcement, it seems likely that this Unitary Patent Regulation will be incorporated into UK law, which might ensure that no UP rights covering the UK are lost on Brexit.  The UK is also continuing to move forward with the creation of a new international  patent court (the Unified Patent Court, or UPC), which will likely come into force in the UK well before Brexit is complete.  So, the announcement from the UK also suggests existing remedies granted by the UPC, and on-going UPC actions, will be maintained after Brexit.

So, not only is there no change to the current patent system on Brexit, we also think it likely that UK rights under the new UP/UPC system will be maintained.  For more information, our guide to the UP and UPC can be found here.  Separately, the UK may also negotiate continued involvement in one or both systems after Brexit, perhaps following the approach to remaining in the UPC  discussed in our note on the subject here, for example.

Trade marks and designs

Assuming that the UK Government’s proposals are adopted, the immediate impact of Brexit on domestic UK trade marks will be negligible. The UK’s domestic trade mark legislation will remain in its current form as will the existing case law interpreting that legislation. It is difficult to predict whether there will be changes in the longer term. However, the benefits of pan-EU harmonisation in this area are generally accepted so a sudden or significant divergence from EU trade mark law seems unlikely. The same can be said of UK registered designs.

Existing EU trade marks (EUTMs) are likely to be affected, but it seems likely that the UK rights in these will  be preserved on Brexit.  Existing EUTM law cannot merely be converted into UK law because EUTM law is predicated on membership of the EU and the unitary, pan-EU nature of an EUTM. Amendment will likely be required to create a mechanism to convert or preserve EUTMs in the UK following Brexit. We remain confident that that will happen, even more so in the  light of the UK Government’s overriding objective to provide a smooth and certain transition. Indeed, the mechanism for conversion or preservation of EUTMs is being discussed actively between the professions, the UK Intellectual Property Office and the UK Government. In the meantime and until Brexit, the UK continues to be a full member of the EU and so nothing changes in terms of EUTMs. We expect a similar approach to be taken to Registered Community Designs.

Supplementary Protection Certifications and Regulatory Data Protection

SPCs and RDP are key rights for the pharmaceutical industry and both are governed by EU legislation.  If the UK Government completes its stated aim, then we expect all relevant EU legislation to be incorporated into UK law.  This suggests that all existing SPC and RDP rights will be honoured post-Brexit, and that such rights will continue to be available in the UK under broadly the same system that we use today.

As with trade marks, achieving this objective will require amendments to the current EU legislation.  In addition, some features may be linked to wider political negotiations in neighbouring fields, such as the possible role for the European Medicines Agency in the UK post-Brexit.  We expect to see draft legislation from the UK Government to address the practicalities of achieving this smooth transfer over the next year or so, and anticipate that all interested parties would have a chance to comment.  The decision to convert CJEU case law into UK Supreme Court decisions offers both short term consistency, but also the prospect for future binding guidance that may offer unique clarity for UK SPCs in the longer term.

Conclusion

The UK Government’s plan for Brexit appears to include both honouring existing rights and continuing the existing level of protection immediately post-Brexit. The announcement should bring comfort and reassurance, but now the devil will be in the detail of achieving this complex undertaking over the next two years.

Our extensive knowledge and experience of UK and European law, combined with our presence in London and Munich, makes us ideally placed to guide our clients through the challenges posed by Brexit.