On 7 September 2017, the EU released a number of Brexit negotiation position papers, including one regarding Intellectual property rights which is of significant importance to the IP intensive Life Sciences industry. The paper sets out the position of the EU27 on existing Intellectual Property (“IP”) rights and the exhaustion of those rights at the withdrawal date. This paper briefly sets out five General Principles:
- IP rights with unitary character: For those existing IP rights that have unitary character (EU trade marks, registered community designs and unregistered community designs), the right holder should be recognised as having a comparable, enforceable right in the UK. Geographical indications of origin are particularly highlighted in the position paper, wherein the UK would need to put in place the necessary domestic legislation providing for their continued protection.
- Applications for IP rights with unitary character: Where an application for an IP right with unitary character has been submitted before the withdrawal date and the administrative procedure is ongoing at the date of withdrawal, the applicant should be entitled to keep the benefit of the priority date in respect of the application when applying for an equivalent IP right in the UK after the withdrawal date.
- SPCs and extensions of SPCs: Where a person submits an application for an SPC or an extension of the duration of an SPC (for example, a paediatric extension) in the UK before the withdrawal date, and the administrative procedure is still ongoing at the withdrawal date, such person should continue to be entitled to obtain the SPC or extension.
- Database rights: At the moment, under Directive 96/9/EC, database rights are only available to persons or companies based in the EU. The current paper proposes that makers or rightholders of databases protected under EU law before the withdrawal date should continue to enjoy protection after that date in both the EU27 and the UK. Similar to providing continuing protection to geographical indications of origin, this will require an amendment to current UK legislation.
- Exhaustion of rights: IP rights (such as trade marks) that are exhausted before the withdrawal date, should remain exhausted in both the EU27 and the UK. This would allow the continued parallel trading of goods that had been placed on the market in the EEA before the withdrawal date, following withdrawal.
Thus far, only the EU has set out its proposals in relation to IP rights in relation to Brexit. However, it is expected that the UK will also want to ensure the continuing protection of existing IP rights in both the UK and the EU.
A number of further position papers were also released on 7 September 2017 by the EU, including one on the Use of Data and Protection of Information Obtained or Processed before the Withdrawal Date. The full list of documents published by the EU in relation to Article 50 negotiations can be found here.