Brexit IP Briefing January 2017

Jane Lambert

There have been four important developments since I delivered IP Planning for Brexit to an invited audience of specialist solicitors and patent and trade mark attorneys in chambers on 7 Dec 2016.

First, the Bar Council published a set of papers that had been contributed by the specialist bar associations on the legal issues arising from Brexit and coordinated by Hugh Mercer QC's Brexit working group under the title The Brexit Papers.  In a foreword, the Chair of the Bar explained that the purpose of those papers was

"to help the Government evaluate a range of pressing public interest concerns arising from the UK’s decision to withdraw from the EU. These include such matters as cross-country co-operation for the speedy arrest of suspects, child protection across the EU, ensuring firms of all sizes can compete and trade profitably, managing changes to intellectual property law so that our creative industries can flourish, and maintaining current levels of consumer protection and of course our human rights."

The Brexit Papers cover jurisdiction and enforcement of judgments, access to the EU legal services market, the impact of Brexit on international arbitration, the implications of Brexit for insolvency and restructuring,  Brexit and intellectual property,  the impact of Brexit on UK tax, family law and criminal justice and Brexit and competition law.

The second major development was the appointment of Jo Johnson MP as the Minister of State for Universities, Science, Research and Innovation with responsibility for IP in succession to Lady Neville-Rolfe. In evidence to the House of Commons Science and Technology Committee Mr Johnson on 11 Jan 2017, Mr Johnson confirmed his predecessor's commitment to ratifying the UPC Agreement. On being asked how this country could remain in the UPC after we leave the EU, Mr. Johnson replied that the UPC is not an EU institution and that such questions as our continued participation and London continuing to host one of the sections of the central division were questions that will form part of the bigger discussion around the Brexit negotiations (see Minister questioned on managing intellectual property and technology transfer 11 Jan 2017).

The third development was the Prime Minister's Lancaster House speech on 17 Jan 2017. Although Mrs May said nothing about the Unified Patent Court or even IP as such, she did give some pointers as to her negotiating strategy which I discussed in Just where does Mrs May's Speech leave the Unified Patent Court? 18 Jan 2017 NIPC Law. Her plan appears to opt out of everything and then try to negotiate ad hoc opt-ins as she did when she was Home Secretary. That is consistent with her minister's reply to the Commons committee.

The last development was the Unified Patent Court's announcement on its website on the 16 Jan 2017 that:

"The Preparatory Committee is now working under the assumption that the Provisional Application Phase (PAP) will start end of spring 2017, presumably in May, and that the Agreement on the Unified Patent Court (UPCA) can enter into force and the Court become operational in December 2017."

As we say in Manchester, "Aye happen."  The Court did, however, hedge its announcement with the following heavy disclaimer:

"The above timetable is conditional and provided with the clear disclaimer that there are a number of factors that will dictate whether it is achievable. The most important factors in meeting these dates is the necessary ratifications of the UPCA and accession to the Protocol on Provisional Application. If these are not achieved the time-plan will be disrupted."

So no chicken counting just yet.

Finally, a bit of personal news. I have just contributed the chapter on intellectual property and data protection to a book entitled Doing Business Post Brexit - A Practical Guide to the Legal Changes edited by Helen Tse of Glaisyers that is to be published in due course by Bloomsbury Publishing.  My contribution stated the law as it stood as at the 31 Dec 2016.

Should anyone require amplification or clarification of any part of this first Brexit IP Briefing he or she should call me on +44 (0)20 7494 5252 during office hours or send me a message through my contact form.