Government Urged To Remain In Unified Patent Court

Legal professionals who work in the intellectual property sector have set out, in a position paper, what they want to see the government achieve in the Brexit negotiations in respect of intellectual property. The paper has been signed by organisations representing intellectual property professionals including the Law Society, the Chartered Institute of Patent Attorneys, the Chartered Institute of Trade Mark Attorneys (CITMA) and IP Federation.

The most striking aspect of the position paper is the request that the government should seek to keep Britain as a member of the Unified Patent Court (UPC). The UPC is proposed to hear cases regarding the infringement and/or revocation of the unitary patent providing a single ruling that will be applicable in all member states. The position paper describes the UPC as 'one of the most significant developments in IP dispute resolution of recent years'.

If the proposed UPC does come in to operation then London had been proposed to be one of the three centres where a branch of the court would be based. This, together with the UK's participation at all, has now been thrown in to doubt by Brexit as the unitary patent system is currently only open to EU members. To remain a member post Brexit will therefore require negotiation and a commitment to abide by the terms of the UPC. This could be politically unpalatable as it would involve remaining, to some extent, under the jurisdiction of the European Court of Justice which will have the final say on any issues of EU law arising at the UPC.

As well as its calls in respect of the UPC the position paper also calls on the government to enable the UK to continue to participate in the EU's harmonised trade mark and design systems. These currently allow for one registration to cover the whole of the EU and there is confusion as to how, if at all, these rights will transfer post Brexit. This could potentially leave businesses who have registered an EU trade mark or design rather than a UK trade mark or design without any registered rights in the UK post Brexit.

Though this position paper sets out what the legal profession would like to see from Brexit in respect of IP rights, it is an opinion paper only and has no formal impact on the government's negotiating strategy. It remains the case, 18 months after the Brexit vote, that we are no clearer as to the situation for IP rights holders in a post Brexit world.