This morning, the UK and EU’s chief negotiators announced that a deal has been reached on the transitional arrangements which will apply in the immediate period following the UK’s formal withdrawal from the EU. Although the withdrawal and transition agreement is still in draft form, many commentators expect the agreement to be signed off later this week at the next meeting of the European Council (scheduled for 22-23 March).
An updated version of the draft agreement has been made available, which is colour-coded to show how close the various provisions are to being finalised. Areas highlighted in green are “agreed at negotiators’ level” and will be subject only to “technical legal revisions”. Areas highligted in yellow indicate agreement on the overall objective but with some drafting changes or clarifications still required. Non-highlighted (“white”) areas are not yet agreed.
With regard to the IP provisions, most of these are virtually unchanged from the proposals published by the European Commission in late February, as reported in my previous post (here). In an encouraging sign to businesses, the vast majority of the IP provisions are highlighted in green, indicating that owners of (and applicants for) EU Trade Marks, Registered Designs and plant variety rights should not be deprived of their rights in the UK as a result of Brexit.
A couple of areas remain “white”, however, indicating that agreement has not yet been reached. Notably, these include Article 51, governing the procedure for re-registration of EU rights in the UK. The draft proposes that this should take place automatically and at no cost to the proprietor of those rights, which is in line with recommendations by professional bodies. This is broadly in line with proposals which were made by industry and professional bodies, and it is not yet clear where disagreement remains between the UK and EU negotiators.
Another “white” area relates to continued protection for geographical indications (GI’s) – as reported elsewhere, the US is lobbying for the UK to drop this form of protection in connection with any potential future UK-US trade deal. At present it is not clear whether this lies behind the lack of agreement on this aspect of IP.
Article 56, governing pending applications for Supplementary Protection Certificates, remains in the “white” category too. This seems surprising in view of the importance of SPC’s to the UK pharmaceutical industry, although potentially this could simply reflect the fact that (unlike registered trade marks and designs) the UK has no domestic legal basis for an SPC system at present; perhaps the wording of this Article will need to be amended to more clearly reflect the need for the UK to make the appropriate legal provisions, in a similar fashion to the “green” Article 53 (dealing with unregistered Community designs, where the UK will also need to implement new legislation).
Finally, a note on rights of representation before the EU Intellectual Property Office (EUIPO). One of the conditions for a professional representative to act before the EUIPO in respect of trade marks and designs is that the representative must be a national of the EEA.
In the absence of a bespoke agreement, UK representatives would no longer meet the EUIPO’s nationality requirement after Brexit (unless the UK adopts a “Norway-type” status, which seems unlikely at present). However, according to the transitional provisions in Articles 121-122, and the definitions in Articles 2, 5 and 6, the UK will remain subject to EU law during a transition period lasting until 31 December 2020 unless the agreement specifies otherwise with regard to any particular law.
According to my understanding of the agreement, this means that the UK and its nationals will maintain essentially the same rights and obligations as any other EU state during the transition period (other than losing its place at the negotiating table of the EU institiutions), and therefore UK nationals should maintain their right to act before the EUIPO at least until the end of 2020 (what happens after then will, of course, be a topic for a separate agreement). If this interpretation is correct, an official confirmation or clarification from the UK Government and/or EUIPO would doubtless be welcomed by practitioners.
Rights of representation before the European Patent Office, and the UK’s place in the European patent system, are unaffected by Brexit as the European Patent Convention is not EU law.