January 24, 2022
In June 2021 the Government launched a public consultation on the UK’s future exhaustion of intellectual property rights regime.
The Government says that “Now that the UK has left the EU, the UK has an opportunity to decide its future regime for the exhaustion of IP rights”, which will govern future rules on parallel imports into the UK.
The purpose of the consultation was to seek evidence and views from respondents to understand what the most appropriate exhaustion of IP rights regime would be for the UK. There were four options tested through consultation, with evidence and views required on what regime should be implemented, and if there were to be a change, how a new regime should be implemented. The consultation ran for 12 weeks and closed on 31 August 2021.
In total, 150 responses were received. Respondents included businesses, organisations such as trade associations, and other private individuals. The Government also held ministerial roundtables and official meetings with interested parties.
The Government has now published a summary of the responses received setting out an overview of the main views expressed to the questions posed in the consultation, and the views of interested parties in ministerial meetings and meetings with IPO officials during the consultation period. The document is not intended to be an assessment of the relative quality of the responses submitted.
The pharmaceutical industry and the creative industries were most heavily represented in responses to the consultation and industry-specific issues are outlined where most relevant. The summary includes opinions with which the Government does not necessarily agree or accept as fact. The summary sets out responses in relation to:
- the current situation on parallel trade to and from the UK in the respondents’ sectors, including imports from the EEA, and the effect of parallel trade on supply chains;
- whether there are international price differentials for goods in each sector and, if so, which factors influence differences in prices between countries;
- the costs and benefits of the UK’s current exhaustion regime, i.e., the UK’s unilateral participation in the EEA regional exhaustion regime, which means that the IP rights in goods first placed on the market in the EEA are considered exhausted in the UK, but this is not reciprocated by the laws of the EEA; and
- an assessment of four options for the UK’s future exhaustion regime: (i) continuation of the current situation, i.e., UK unilateral application of an EEA exhaustion regime also termed as “UK+”; (ii) move to a national regime; (iii) move to an international regime; and (iv) move to a “mixed” regime; of the respondents who expressed a preference for one of the options, the majority favoured the current “UK+” regime, while over a third favoured a national exhaustion regime; a small number favoured an international exhaustion regime and only a few favoured a mixed exhaustion regime; approximately a quarter of respondents (mainly representative organisations representing a wide range of entities with differing interests and views) did not express a preference; others stated they did not favour any of the four options presented and mooted alternatives such as a UK and Ireland only exhaustion regime, renegotiating a reciprocal EEA exhaustion regime or another form of regional exhaustion regime with a set of specific countries.
To read the summary of responses in full, click here.