Joe Doyle, Intellectual Property Manager, Enterprise Ireland outlines the impact Brexit will have on Intellectual Property

There are many seismic shifts predicted in the UK’s future relationship with the EU. Some are quite apparent, but others are below the surface and don’t receive the same level of public attention. Intellectual Property (IP), for example, may appear to be a side issue to more pressing political and economic concerns but IP is, in fact, fundamental to trade and innovation within and across borders.

A study by the European Union Intellectual Property Office (EUIPO) attributed 28% of jobs (60 million) in the EU to IP intensive industries. That accounts for 42% (€5.7 trillion) of total EU economic activity and 90% of EU trade with the rest of the world. The study showed that, in Ireland, IP intensive industries accounted for 24% of employment and contributed to 53.8% of GDP.

How Brexit impacts intellectual property

So how does Brexit affect IP? Fundamentally, IP is territorial i.e. IP rights (IPR) only apply in the territories where the IP is registered or legally recognised. If the territory changes, then so too does the IPR. In recent years, attempts have been made to harmonise IP frameworks across the EU to give companies predictable and efficient protection for their innovation throughout the economic area. For example, the EU Trade Mark (EU TM) and the Registered Community Design (RCD) are IP protections that apply across the whole EU territory via a single application, thereby reducing cost and administration. The implication of Brexit, for companies trading in the UK and relying on EU-wide IP, is what happens when the UK falls outside the EU territory? To put it another way, in IP terms, Brexit means the earth (or part of it) will effectively move.

Thankfully, the UK and EU negotiation teams are Pre-empting ahead of this and aim to ensure that companies will retain equivalent protection in the UK post-Brexit.  According to the draft Withdrawal Agreement, the negotiating parties have agreed that owners of EU TMs and RCDs, granted before the end of the transition period in 2020, will automatically get an equivalent right in the UK. However, it’s not so straightforward. For example, issues such as how the UK re-registration procedure will work in practice, and who will pay UK fees, are not yet agreed.

Furthermore, there are several unregistered forms of IP where things are potentially even less predictable. Unregistered rights refer to things like copyright, trade secrets, and unregistered designs, the protection of which depends very much on certain legal frameworks and institutions in each member state. The intention, post Brexit, is that the UK will replicate EU directives, but due to legal and institutional complexity, it may not be possible to achieve harmony in the presence of a border.

What will Brexit mean for patents?

Of course, there is also the issues of patents. The withdrawal agreement is silent on this one, largely because the European Patent Office is not an EU institution. However, the EU Unitary Patent and Unified Patent Court, which have been the subject of a 40-year EU negotiation (take note Brexit negotiators), are due to come into force later this year. As Brexit has significant implications for these, their future is uncertain.

What can I do to prepare?

No one can predict how the post Brexit IP world will look but attempts are being made to patch over the fault lines. Early tremors have passed largely unnoticed but the ‘IP earth’ beneath exports to the UK will move. Maybe the main event will even pass unnoticed, but the aftershocks may be severe and long lasting, and by then it might be too late do something about it.

So, while there is still some time, Irish companies trading with the UK, and with IP protection in the UK, need to engage with their legal and IP advisors to ensure their IP Strategies are Brexit-proof. Companies should start by conducting an IP audit to identify what IP is protected and what is not, review IP terms in agreements and contracts, identify risks and threats etc. Then, they should work closely with their IP advisors to develop sound IP Strategy that takes account of the immediate and long-term risks posed by Brexit. This may include filing IP protection in the UK in case the EU and UK do not reach full agreement.

Learn more about Enterprise Ireland’s Brexit supports here.