Brexit by 2019 – IP and the Great Repeal Bill

October 2016

The UK's Prime Minister has announced the formal Brexit negotiation process will begin by the end of March 2017.   This triggering of Article 50 of the Lisbon Treaty will begin a two-year negotiation process for the UK to exit the European Union (EU).  Although the two-year negotiation period can be extended with the consent of all members of the European Union, it seems likely now the UK will leave the EU by summer 2019.

The UK government also plans to introduce a “Great Repeal Bill” in the next Parliamentary session in May – this would end the 1972 European Communities Act (ECA), which gives EU law primacy over UK law.  UK Parliament would also be given the power to absorb the parts of EU legislation it wishes to enshrine into UK law, and to reject the parts it wishes to.  However, although the “Great Repeal Bill” will be debated in the next Parliamentary session it will not come into force until the UK actually leaves the EU. Although many EU laws may well be incorporated as a whole into UK law, the UK Prime Minister was very clear that UK sovereignty will be paramount - "Our laws will be made not in Brussels but in Westminster. The judges interpreting those laws will sit not in Luxembourg but in courts in this country. The authority of EU law in Britain will end."

For IP law, the implications of the “Great Repeal Bill” remain unclear.  For many IP rights, EU laws and EU Courts have been empowering for IP rights holders; EU trade marks, designs and SPCs are all governed by EU Regulations, which many would hope to see enshrined in UK law (if not already).  However, the UK not being a member of the EU is likely to prove a stumbling block for many IP rights and their unitary EU character. 

The UK’s Intellectual Property Office recognised earlier this year that for EU trade marks and EU design rights “users will want clarity over the long-term coverage of those rights. The government is exploring various options and we will be consulting users of the system about the best way forward.”  However, given that these are EU unitary rights, governed by EU law, only for EU Member States, when the UK formally leaves the EU the provisions of EU regulations would no longer have any effect, unless the UK and the EU can negotiate an alternative.  It is important to remember, until such times that the UK formally exits the EU, which we now think will be summer 2019, UK rights holders can continue to protect their IP in the EU.  And while the UK remains a full member of the EU, the EU Trade Marks (EUTM) and Registered Community Designs (RCD) continue to be valid in the UK.

Similarly, although the UK’s participation in the proposed Unified Patent Court and Unitary Patent is described by the UK IPO as “ongoing”, ratifying the agreement on the Unified Patent Court seems increasingly unlikely in its current form.   Notably for European patents, there will be no impact on businesses’ ability to apply to the European Patent Office for patent protection, which can cover the UK.  British exit from the EU will not affect the current European patent system as governed by the European Patent Convention (EPC), which is not an EU right.

Although timings may be more specific now, IP rights holder still need further information and we await to see the full implications of Brexit on IP law – we will report further information as we receive it.

 

If you have any questions or concerns about IP Rights in the UK outside the EU, or would like further advice on this matter, please contact your usual HGF representative, or visit our Contact page to get in touch with your nearest HGF office.