This article was written on 15 October 2017. The content was relevant at the time of writing, but may have since changed. For our latest Brexit updates, please access our Brexit Hub.
The recent report by the IPO ‘UK Patent System: Building the evidence base’ highlighted a number of areas where the UK was strong in IP, without pulling any punches in relation to its weaknesses. An area that was, rightly, presented as a strength was the role of the UK in influencing IP policy globally. The UK continues to be a global IP policy key player. However, in light of the approaching impact of Brexit, and what seems to be a fragmenting international landscape in terms of harmonisation, the UK may have to work hard to retain that position.
Different rights tell a different story
Different IP rights will be affected differently over coming months and years depending on their relationship with, and reliance on, EU institutions. As governing bodies of various international IP systems work with the UK government to manage Brexit, the UK maintaining its policy influence will need to be something UK representatives consider – and work at. The question is how hard do they need to work to ensure this?
When Britain leaves the EU this will not have an impact the UKs relationship with the European Patent Office, which is an entirely separate body from the EU. This means maintaining influence in patent policy should be not too strenuous a task. Historically, the UK has a long track record of significant influence within the EPO and runs a number of the most important committees and groups. In view of the elevated level of past involvement, this influence is unlikely to diminish. On the global stage, the UK IPO has always been a strong contributor to the World Intellectual Property Organisation which administers the PCT (international) patent application system and again nothing should change here either.
Perhaps most interesting is the UK’s continuing role in helping to develop the Unified Patent System. This is an EU-driven initiative and the UK will always be a significant player in developing and implementing the proposed law. Despite Brexit, the UK’s judges, lawyers and government have continued to work hard to see if the UPC could have a workable British solution, and help solve problems around the level of involvement the UK was intended to have in the UPC. Even more significantly, Germany is currently facing a constitutional challenge to introduction of a Unitary Patent System and without either of the UK or Germany involved most observers doubt that the UPC will succeed, or be effective. If Germany continues to face its internal problems then British involvement, somewhat perversely, will continue to be essential.
Trade marks and designs
An area where the UK might need to work a little harder to maintain policy influence is trade marks and designs. Although the UK has its own national trademark and design granting system, they are comparatively under used as against various international systems dominated by the EU trademark and design systems. No one quite knows what is going to happen with Brexit but there is a strong possibility that it will be necessary to re-register existing EU rights in the UK once Brexit takes place. The UK IPO is working on plans to ensure that EUTM rights holders will have certainty on their rights post-Brexit (though there are several models in discussion and no one quite knows where we will end up).
As a result, in the short term, there will be huge amounts of activity in the UK, but there does seem to be a risk that when that’s finished, the UK will be a smaller player in a jurisdiction where litigation is only carried out if it can’t be resolved on larger stages. Despite our judges’ reputation as innovators in this area as well, the scale of the decisions on which they opine in the future may risk a reduction of our influence in this area.
This means, the UK bodies managing this transition will need to plan, prepare and execute a solution to address UK IP policy influence. UK IP bodies such as CITMA are heavily involved in lobbying government on the importance of the UK in trade mark systems, and on rights of representation for UK practitioners who are well-regarded globally.
Certainly, with regards to copyright, partly because it is an unregistered right, and partly because it is pretty much an internationally recognised right through the Berne Convention, the overall impact of Brexit should be less. The UK is a major player in the copyright area; we create huge amounts of content in the film, music and software areas, and the government has worked aggressively to keep our laws up to date with the ever-changing demands of a digital world. We also – and this is a resonating theme – have some of the worlds most experienced and innovative judges and we are constantly seeing decisions handed down that push the frontiers of jurisprudence in the never-ending battle against the effects of the internet and global content streaming. Because there is no granting system, and because the world has to take a lead from its best thinkers in this cutting-edge area, we can hope that the UK’s reputation here will not diminish.
Keep calm and work hard
Whether or not you are a fan of Brexit, and whether or not you are concerned about the apparent fragmentations of several international systems at the moment, it was always clear that the UK were going to need to realign and fit in with this worrying new world. Even if our economic and direct political influence may wane, however, we continue to have one of the best legal professions in the world, some of the most innovative and experienced judges, and our intellectual property office that works hard across the IP arena. They are all keeping at it. And, one of the biggest contributions the UK continues to bring is the fact that it believes in IP, recognises its value and wants the system to succeed both nationally, across Europe, and on the global stage – there is hope for the UK yet!