January 14, 2019

The IP Federation has made a submission to the Parliamentary EU Justice Sub-Committee on IP and the UPC, in connection with the inquiry looking at the impact that Brexit could have on the status of EU related IP laws within the UK, including those pertaining to the realm of life sciences and healthcare

The IP Federation, which represents IP intensive companies in the UK, says in its submission that it “broadly supports and endorses” what was said by those who gave evidence to the inquiry.  In the Federation’s view, the European IP system “works well” and, whilst many aspects of the IP system (most importantly patent rights) will not be affected by Brexit, a number of other rights will be affected.  In that respect, the Federation wants certainty and continuity “to the maximum possible extent”.

In short, the Federation says that there should be “no loss of existing IP rights as a result of Brexit by conversion of EU rights into UK national rights; and equivalent national rights should be available to apply for after Brexit”.

As for future developments of the IP system, the Federation says that the most important is the unitary patent/UPC system.  The Federation says it has “supported strongly for decades” the simplification of the pan-European patent system, which the new system would achieve.  In particular, it says, UK-based industry wants to be part of a unified court system, “as it sees benefits in having this option for protecting and enforcing its rights”.

The Federation points out that the UK took the decision in November 2016 to ratify the UPC agreement, notwithstanding the Brexit referendum decision, and the new system “will be of benefit both to UK industry and the UK legal professions”.  The Federation says, therefore, that it is “pleased” that the UK has completed its ratification procedure.

It is “a source of frustration”, however, it says, that a constitutional challenge in Germany continues to hold up commencement of the new system, meaning that it cannot now start before Brexit.

However, the Federation does not see this fact as a bar to UK participation.  The Federation refers to the opinion from Counsel that it commissioned with three other groups (known as the Gordon-Pascoe opinion), which concluded that there was no bar to the UK continuing to participate in the UPC post-Brexit.

Further, the Federation says that it has no concerns about the very limited role of the CJEU in the UPC system.  Accordingly, the Federation “encourages the UK to maintain its commitment to the project whether or not there is an agreement on the terms of Brexit between the UK and the EU”.  In the Federation’s view, the system would be “significantly devalued” were the UK not to participate, as the UK legal professions would be excluded from representing clients in the new court system to the detriment of UK users as well as the legal professions themselves.  Further, it says, “the consequent absence of UK judicial expertise would be a significant loss to the system and from the perspective of UK users in particular”.

The Federation also says that it supports the UK seeking to continue participation in EUIPO and in a regime for mutual recognition and enforcement of judgments, such as by adopting the “Danish model” for membership of the regime of the Brussels Regulation (1215/2012/EC) or by joining the Lugano Convention.   It notes that participation in one or other of these regimes is also of importance to participation in the UPC system.  To read the Federation’s submission in full, click here.