In a new report, The impact of Brexit on intellectual property, CIPA said it has a “strong preference” for the UK to participate in the proposed common European patent court, “if a solid legal basis for this can be agreed”.
Currently, the UPC is open to any member of the European Union, and all but Poland and Spain have signed up as contracting member states.
In its report, CIPA said that the UK government, assisted by CIPA has “worked “tirelessly over many years to create a system that was favourable to the UK”, which would simplify patent processes and reduce costs for businesses.
Further, CIPA said it is “working with other interested parties, including international colleagues, to optimise the chances of the UK’s continued participation”, although, “this would require a new international agreement with the participating member states and the EU to provide compatibility with EU law”.
However, the report went on to say that the UK’s continued participation in the UPC after Brexit is still “uncertain”.
As well as the impact of Brexit on the UPC and the unitary patent system, CIPA outlined several other potential consequences of the exit on intellectual property.
It said that, while European law will continue to affect the UK, EU regulations will cease to be applicable. EU directives will remain in effect unless the UK Parliament decides to repeal or amend the national laws that created them.
The Court of Justice of the European Union (CJEU) will no longer have jurisdiction over UK matters, though CIPA said it expected that their decisions would still influence the UK.
This is, in part, due to the Board of Appeals of the European Patent Office continuing to follow CJEU rulings on the Biotech Directive, which harmonises patent law in EU member states and clarifies which inventions are patentable or not on ethical grounds.
CIPA asserted that the UK courts will pay attention to Board of Appeals and, even though, in theory, they could diverge, they are “unlikely to do so as it would move away from the position of other EPO contracting states”.
The report said: “If the UPC goes ahead with the UK’s participation, the UPC will be bound by the CJEU’s decisions on the Biotech Directive.”
Despite these changes, many things will stay the same, including the UK’s involvement in the European Patent Convention and Patent Cooperation Treaty, UK laws on trade secrets and data safety, and any holdings of trademarks or design rights, something CIPA says it is working with the Institute of Trade Mark Attorneys (ITMA) to ensure.
“In the short term (at least two years), UK patent and trade mark attorneys continue to have all the rights they have at the moment to work before the UK and European IP offices,” CIPA said.
“The UK is a great venue for business and for obtaining and enforcing IP rights in Europe. CIPA is committed to ensuring that this will continue.”