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Impact of Brexit on Intellectual Property or Brexit-What it has in store for Intellectual Property

After the adjournment of the deadline twice & all the twists and turns happening since then as an outcome of the public vote in June 2016, The United Kingdom has finally departed from the European Union at 11 P.M. GMT on 31st January 2020 which gave life to transition period, set to expire on 31st December 2020. This period of transition is implemented to decide what kind of future relationship Europe and UK are going to hold on to. In the meantime, trading relation and approach of the UK towards EU law will be the same as before until the period of transition is in effect.    Although Brexit will have its potential impact on different sectors of industry, let us have a brief of what Brexit has in store after the expiry of the transition period when it comes to Intellectual Property. The aspects of Intellectual Property going to be discussed under the aftermath of UK’s exit are patent & supplementary protection certificate, paediatric extension, registered community design & trademark, rights of representation, copyright and its cross border arrangements, cross-licensing with plant varieties, and unitary Patent System.    Patents and Supplementary Protection Certificate (SPC) Due to being governed by European Patent Convention, an International treaty independent of European Union, European or UK patents already granted or still under process will be unaffected and the patent attorneys in the UK can keep up their proceedings before EPO. Therefore, if one wants to protect the patent in any part of Europe, it can be applied either through the UK patent office or directly to EPO.   On the contrary, SPC is a national right and it is the most important concern Brexit will have its consequences on. Without affecting the validity of the SPC, the major change taking place is the derivation of validity of SPC, done using the equivalent date of UK authorisation (can be converted from the authorisation of European Medicine Agency using the guidelines available on MHRA website) and filing date of the patent as a basis. In case the authorisation in the European Economic Area exists before the UK authorisation, the information and documental evidence on the earliest marketing authorisation is mandatory.    Paediatric extension of SPC will be determined based on the equivalent provisions in the UK’s Human Medicine Regulations 2012. The requirement, timeline and process for making the request of paediatric extension remains same as before i.e. either at the time of filing an application for SPC or any time up to two years before the SPC expires.    Trademark and Design Be it an individual, tiny business entity or giant organization, the applicants who have their European trademarks ongoing even at the end of the transition period will be having a duration of nine months from the end of transition period so that they can apply in the UK for the same protection.   Meanwhile, during the continuation of the transition period, the EU trademarks will continue to extend to the UK and vice versa. The protection of community design follows the same path as a trademark.   Rights of Representation In accordance with the withdrawal agreement, the legal representative of UK can continue representing their clients before the European Patent Office even after the end of the transition period. As stated in the withdrawal agreement, the address for service rules won’t be amended by the UK for three years after the end of the transition period.    Copyright and Cross-Border Arrangements Owing to its foundation from international treaties and having an independency from EU membership, the copyright law of the UK will most likely be unaffected even after the transition phase. The exceptions to this aspect i.e. the reciprocity of the protection of cross border portability of online content service and the database created by EU or UK is yet to be negotiated during the transition period as a part of their future relationship.    However, the database rights being in existence in the UK and EU during the term expiry of transition phase will continue to be recognised in both the nations for the remainder of their validity.   In addition to this, the legal system with regard to the Copyright is likely to be changed in view of the foreseeable divergence of UK and EU case law as the Court of Justice of the EU will not bind the UK courts after the end of the transition period.    Cross Licensing with Plant Varieties Post-transition, community plant variety right will get converted into the UK plant variety right. Hence, unlike earlier time, the holder of both plant variety rights and patents which are aligned to each other will be restrained from applying the compulsory licence. Meaning the only plant varieties having their effect in the UK can be used to get a compulsory licence on patent based on UK plant breeders’ rights.   Unified Patent Court (UPC) Unified Patent Court is a single court ruling applicable throughout Unified Patent Court Agreement (UPCA) states and the purpose of bringing it into existence is to provide legal decisions over infringement and revocation under a common law. At present, UPCA covers EU states which means the EPC states which are not part of the EU will not be covered under the umbrella of Unitary patent.    If post-transition, UK end up being part of UPC and if the European patent is registered as Unitary patent then the revocation and infringement proceedings of that patent would have its effect on participating UPCA states including the UK and if the reverse of this happens, the registered European patent as a unitary patent will not have its effect in the UK.   It is still uncertain whether UK will remain the part of the UPC system. This depends on the German court’s decision of ratification for being the part of UPC. It means that to bring UPC into reality, the ratification by 13 member states including German, France and UK along with 10 other countries is required. Among these countries, German country is yet to ratify for this.   Still, a lot to be heard about when the final agreement will roll out the future relationship between Europe and the UK. Let’s see how it will address the repercussion Brexit is going to have on various sectors.