How the UK's vote to leave the EU in the "Brexit" referendum could affect intellectual property law
- IP rights in general: UK IP laws are predominantly constructed around European Directives or derive from European Regulations. Many of these Directives are relevant to the EEA, so could continue to influence UK law if the UK remains in the EEA. In any event, it is likely that the UK would retain or implement new laws that largely mirror the existing regimes where possible. However, Brexit could give the UK more flexibility in interpreting those laws and in shaping exceptions.
- European Trade Marks and Community Designs: While UK businesses could continue to apply for these rights, the UK will no longer be covered by them and businesses would need to apply for national protection in the UK. A question mark lies over what would happen to existing registrations - whether protection will continue and in what form will depend on what arrangements the UK agrees with the EU.
- Patents: If the UK was to leave the EU, the status quo of European patent law and patent litigation would remain unchanged. Application for and prosecution of European patents would continue to be handled by the European Patent Office. The EPO operates on the basis of the European Patent Convention (EPC), which is not limited to EU members. The national validation, enforcement (and possible invalidation) continue to be subject to the respective procedures in the individual jurisdictions on a national level.
However, the UK leaving the EU would most likely have substantial implications for the biggest reform in the history of European patent law: the long-awaited introduction of the European patent with unitary effect and the Unified Patent Court (UPC), which was anticipated to come into effect in 2017. The UK was to play a vital role in this ambitious project, inter alia by hosting a branch of the court's central division in London. As the underlying agreements currently stand, as a non-EU member the UK could not participate in the UPC. The new system may however only enter into force upon ratification by 13 member states, including the UK. A ratification by the UK continues to be legally possible, but perhaps doubtful in view of the political situation.
Nonetheless, the Brexit vote does not necessarily mean the end for the UPC and the entire reform project. There are ways conceivable, eg through bilateral agreements, by which the UK may still participate. This could possibly take years to implement, causing a significant delay. The other member states may also decide to go ahead without the UK. However, in view of the fact that Spain does not intend to participate, the attractiveness, efficiency and economic benefits of the UPC would be further reduced without the UK's participation.
- Copyright and software: The protection of software is a contentious issue. Brexit will give the UK the opportunity to modify the protection of, and exceptions to protection, for software, which are currently partially harmonised through the Software and Information Society Directives.
- Exhaustion of IP rights: Currently IP rights are exhausted once goods are put on the market within the EEA with the rights owner's consent. Depending on the model adopted, the UK could choose to restrict imports into the UK from the EU. Whether such restrictions on free trade are desirable is another question.