Brexit looks like it is shaping up to be a complicated process. The UK not only has to agree the terms by which it will withdraw from the EU, it also has to shape its future relationship with the EU. One of the many (challenging) aspects of the Brexit process, is reshaping UK laws to reflect this new reality.
The UK government is currently in the process of preparing the “Great Repeal Act” to repeal the European Communities Act 1972. This will both close the channel by which EU laws become absorbed into UK law and also (theoretically at least) ensure legal status quo by integrating the existing body of EU law (the acquis communautaire).
The current state of IP legislation in the UK
IP legislation in the UK can be roughly placed under one of three headings:
• National rights outside the scope of the UK- This is the smallest category and covers patents, UK unregistered design rights and some aspects of copyright
• National rights which are applied under the principle of harmonization – This includes national trade marks, national registered designs, database rights and most aspects of copyright. From 2018 it will also include trade secrets.
• EU-granted rights, which apply in an identical manner across all member states – At current time this includes the EU Trade Mark, the Registered Community Design (RCD) and the Unregistered Community Design (UCD). It is due to include the Unitary Patent, often known as the European Patent with Unitary Effect.
Of these categories, only the first will be unaffected by Brexit (in principle at any rate).
Brexit and IP harmonization
Up until the point of Brexit, the UK must continue to implement all EU directives as it currently does. This means that it will probably have to implement the Trade Secrets Directive by its current deadline of 9th June 2018. When Brexit actually happens, however, unless otherwise agreed, the UK would cease to be required to integrate directives into national law. Furthermore, UK courts would have to abandon their current practice of resolving disputes with reference to the EU directive rather than to national law (in case the latter was a misapplication of the former) and the CJEU would cease to have jurisdiction over their application in the UK. Of course, the UK would have the option to agree, voluntarily, to abide by EU directives on IP and this may well end up happening, but it would almost certainly be a politically-charged topic.
Brexit and EU-granted rights
Under current rules, none of the EU-granted rights can be applied outside the EU, hence they will cease to apply in the UK after Brexit. As a corollary of this, the plans for a Unified Patent Court will need to be adapted to exclude London, which was due to be home to a specialist section to hear disputes on “human necessities, chemistry and metallurgy”. In principle, there could be the option for the UK to agree voluntarily to submit to EU law (at least in this area) and to recognize the jurisdiction of the CJEU, but again this would be a politically-contentious topic and would also require goodwill and co-operation from EU member states.