My Take on the Impact of Brexit in Terms of Intellectual Property

Many of you may have been surprised to see the results of the British EU referendum (the so-called “Brexit”) come in on Friday 24^th June.  Here in Japan, the final result afternoon came in at around 2pm.  As a British citizen, I watched this news with fascinated interest.  Although I thought the result would be close, the actual decision of the population to leave the EU took me by surprise.  It is often said that the British dislike change, but that was not the case on Friday.

Many of you may be wondering how this decision might affect intellectual property.  Although there is still a great deal that we are uncertain about, I would like to present a brief breakdown of the current situation as I understand it.

First the good news: membership of the UK in the European Patent Convention (EPC) remains unchanged since it is a separate framework from the EU.  This means that individuals/companies can still file a single application for all EPC signatory nations, have the application examined, and narrow down their choice of which countries to obtain separate patents for later.

Okay, that’s the end of the good news.

The bad news, effective as of the legal date of leaving the EU, is that it is now very unlikely that the UK will be able to join the European Unitary Patent system (or make use of its court) – this patent system (to be launched in 2017) will cover all of Europe, and therefore decrease the costs/workload involved in obtaining patent protection throughout Europe.  Incidentally, the court for the unitary patent was supposed to be in London, but that’s almost certainly going to change now.

Next, the Registered Community Design, which helps companies/individuals protect the external appearance of articles, will no longer extend to the UK.

Furthermore, the European Union Trade Mark, which protects marks and logos used for products and services, will no longer cover the UK.

What this all means is that, British companies/individuals wishing to protect their creations/technology/goodwill in Europe will have to file and obtain completely separate rights for Europe, and conversely, individuals/companies from Europe (or elsewhere) will have to file/obtain separate protection for the British market.  This pushes up the costs and acts as a further barrier for those seeking to do business in both Europe and the UK.

That’s the actual situation that we’re facing right now.  The following is my personal opinion of what all this logically means (please note that this is not a professional opinion, as I’m not qualified to give such advice).

I feel that London’s loss of the Unitary Patent court is really unfortunate, as this would have seen the UK sharing much of the legal workload of patents in Europe with Germany, thereby becoming one of the most important centers of patent rights (and by extension, technology) in the world.

I also believe that the loss of the intellectual property options mentioned above will mean that, once the UK actually leaves the EU, we can expect either: (1) an increase in the number of patent/design/trademark applications as companies move to protect their industrial rights in the UK at their own expense; or (2) a decrease in the number of patent/design/trademark applications as companies reduce their industrial presence in the UK to avoid expenditure.

Scenario (1) seems positive because there appears to be no change, but no doubt the extra costs will have to be passed on (e.g. in the form of reduced wages for company workers or more expensive consumer goods).

I feel that Scenario (2) could ultimately lead to industry/technology flowing out of the UK.

Obviously, neither scenario would be good for anyone in the UK, from business leader to the average consumer.  Hopefully, other scenarios will arise as the UK government takes measures to protect the country and drafts/ratifies new treaties, but this process could take many years to bear fruit.

 

R.M.