Current state of play
- EU member states benefit from a range of pan-EU intellectual property regimes. These include pan-EU IP rights, like Community Trade Marks and Registered Community Designs, and central administration schemes, like the European Patent Office (which also extends beyond the EU). These systems create economies of scale for owners of multinational IP portfolios.
- A new EU unitary patent system is due to be introduced in the next few years.
- Many domestic UK IP rights stem from EU law. UK courts must interpret those rights in line with decisions of the EU Court of Justice.
- National courts in the EU can, in some cases, issue pan-EU injunctions against IP infringers.
- Businesses can store and transfer personal data across the EEA with relative ease. A new pan-EU data protection regime is likely to take effect in the next few years.
What should I be thinking about now?
- Portfolio management – Do I need to make any changes to my filing and management strategy to ensure my unitary EU IP rights (including any new unitary patents) would be protected in both the EU and UK post-Brexit?
- Enforcement – Would I still be able to rely on any existing injunctions to protect my rights - in the UK or in the rest of the EU - post-Brexit? Which courts should I be applying to in any litigation I am currently planning in order to get the most effective remedies?
- Licensing – Are my existing licensing arrangements ready for a Brexit? If the UK leaves unitary schemes, will my existing licences cover transitional or successor national rights in the UK? Should I be thinking about including special provisions in any new licences to cover transitional or successor national rights?
- IP diligence – If I am buying or selling a business, what would be the potential impact of a Brexit on the target’s IP licences and on security over the target’s IP rights?
- Data protection – How would a Brexit affect my data protection compliance procedures, particularly in light of the proposed new law? Will the UK still be deemed a ‘safe’ destination for receiving personal data from other EU countries? Will the UK remain an attractive data processing hub for my business?
The answers to many of these questions will depend upon the nature of a post-Brexit UK/EU relationship.