Ever since the BREXIT process began, IP lawyers, and businesses with European IP interests have been wondering where the continent is going in terms of IP protections. Will European patents remain enforceable in Britain? Will it be necessary to file for U.K. patents and trademarks, and will that IP be enforceable in the rest of Europe?
This past week, the U.K. announced that it will not participate in the European Union’s Unified Patent Court system, in an about-face for the country, which previously announced plans to remain part of the system despite leaving the EU.
Under the system, which has not yet launched, inventors would be able to obtain a single patent that could be enforced across the EU in proceedings before a tribunal called the Unified Patent Court. This has long been a problem in European IP enforcement–the need to essentially assemble a portfolio of individual jurisdiction patents, and then pursue infringers on a country-by-country basis. The office of Prime Minister Boris Johnson said the system’s role for the Court of Justice of the European Union in deciding some issues was a deal breaker for the U.K.
“The U.K. will not be seeking involvement in the UP/UPC system,” a representative for Johnson’s government was quoted as saying: “Participating in a court that applies EU law and bound by the [Court of Justice of the European Union] is inconsistent with our aims of becoming an independent, self-governing nation.”
The “independent and self-governing nation” language bothers me the most. What is more essential to that aim than a system for patents and trademarks that is national in its approach? The concept of a single, multi-jurisdictional patent, whose terms and conditions must be decided initially, and then adjudicated eventually, is simply antithetical to such “independence.” However, on the other hand, Johnson’ singling out the involvement of the Court of Justice of the European Union holds out hope that there may be room for cooperative moves outside of that framework.
The Business Take Away: None so far, but clouds are on the horizon. Business with significant interests in IP in Europe and going to have to monitor the situation closely and be ready to take possibly drastic action, action that is outside the scope of our experience in the last 25 years, in order to protect their holdings.