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IP After Brexit by Jane Lambert

A few days after the EU referendum, Lady Neville-Rolfe, the Minister for Intellectual Property, told the British group of the Union of European Practitioners in Intellectual Property in a speech entitled National and International-level concerns and developments regarding the IP landscape that

“The UK has one of the world’s best intellectual property environments. The changes that will be triggered by the outcome of last Thursday’s vote will not alter that.”

I beg to differ. As the following pie chart shows, the UK continues to trail not only Germany and France in the number of European patent applications but also the Netherlands with a third of our population but even Switzerland with one eighth.

The reason for that is that IP services in the UK are too damned expensive; especially when it comes to enforcement despite Sir Richard Arnold’s reforms of what is now the Intellectual Property Enterprise Court and the launch of its small claims track.

The Unified Patent Court, which was ready to open its doors early n 2017, could have made an enormous difference to the cost of enforcement for small and medium enterprises in the UK (see Jane Lambert Preparing for the Unified Patent Court 23 Jan 2016 NIPC Law). Part of the Court’s Central Division would have sat in London. Costs would have been strictly controlled.

The Court would have had jurisdiction over France, Germany and several other countries as well as the UK. There was even provision for legal aid for SME, Brexit has stopped the project dead in its tracks.

At the very least it has been delayed and even if it does go ahead it will do so without us as the UPC Agreement is open only to member states of the EU.

Another area of law that would have benefited British industry, particularly SME, is the reform of trade secrets law. At present the trade secrets are protected by the law of confidence which is fiendishly complex and anomalous as any lawyer who has had to seek an interim injunction against a departing director or senior employee will testify.

On 8 June 2016 the Council adopted the Trade Secrets Directive that has to be implemented by 9 June 2018 which is just when we are likely to leave the EU (see Jane Lambert The Trade Secrets Directive 7 July 2016 NIPC Law). It would have been a golden opportunity to reform our law systematically by putting it on astatutory basis and bringing it into line with that of 27 of our nearest trading partners.

One of the core demands of Japan’s Message to the United Kingdom and the European Union is “Unified protection of intellectual property rights & Protection in the UK of registered Community designs and EU trademarks.” More specifically the concern of one of the biggest sources of investment in British manufacturing is:

“To uniformly protect intellectual property in the UK and the EU in order not to create disadvantages for the right holders. If the UK’s withdrawal had an impact on the rights and effects of registered Community designs and EU trademarks, this could generate disruption.”

So IP matters. Although IP played a minimal role in most voters’ concerns in the referendum debate it will play a massive role in the eventual settlement which could affect not simply our trade with the rest of Europe but inward investment from important overseas trading partners such as Japan, the USA, China, India and South Korea.
I will outline the present IP structure which is based on a mix of domestic and EU legislation and the enormous potential black hole in the legal protection of British brands, designs, technology and creative works when the EU trade mark, Community design, unitary patent, the trade secrecy regime and EU plant breeders’ rights disappear. However. although there is much uncertainty and many negatives I will also focus on some of the opportunities that we will have to exploit elsewhere in the world including little used tools such as our 100 or so bilateral investment treaties to protect our trade and investments abroad (see Jane Lambert Bilateral Investment Treaties: Claiming Compensation from Foreign Governments under Bilateral Investment Treaties for failing to provide adequate IP Protection 27 July 2013 NIPC Law).

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