IP after Brexit: The Government's Guidance

Author: S Solberg J
Licence Creative Commons Attribution 3.0 unported
Source Wikipedia



















Jane Lambert

Ever since the referendum and indeed before it I have tried to anticipate the legal protection for brands, designs, technology and creativity if and when the United Kingdom leaves the European Union (see Were we to go - what would Brexit mean for IP?  26 Feb 2016, What Sort of IP Framework do we need after Brexit and what are we likely to get? 3 July 2016  and IP Planning for Brexit 7 Dec 2018).  Much will depend on the terms upon which we leave the EU and our relationship after departure.

Since the 23 Aug 2018 the government has published guidance on How to prepare if the UK leaves the EU with no deal. That guidance covers everything from Applying for EU Funded Programmes to Workplace Rights.  I commented about it in And if there is no deal .................. 24 Aug 2018 NIPC Brexit,  Topics include patents, copyrights, trade marks and designs, geographical indications and plant breeders' rights.

I have discussed these topics and the government's guidance in:
Some of the guidance notes are better than others.  The guidance on EU trade marks, Community designs and plant varieties is spot on.  The advice on unitary patents and the Unified Patent Court is not quite so helpful.  The intimations of a new supplementary unregistered design right along the lines of the right in an unregistered Community design and a new British system for the recognition of geographical indications  were a surprise to me.

Statutes and statutory instruments that implement Council directives will be unaffected so far as the UK is concerned.  Some rights that depend on nationality, residence or incorporation in an EU member state such as access to online content outside the UK may be lost. Council regulations will be incorporated into English and Welsh, Scottish and Northern Irish law by s.3 of the European Union (Withdrawal) Act 2018.

If HM government enters a withdrawal agreement on the lines of the draft first published at the end of February, EU law (including the EU trade mark and Community design and plant variety regulations) will continue to apply to the UK until 31 Dec 2020.  It is conceivable that Germany will ratify the Unified Patent Court Agreement before that date in which case the conditions for the Unified Patent Court and the unitary patent to come into being will have been satisfied.  It is by no means certain that the UK can remain party to that agreement even during the period when EU law would continue to apply,  However, it would appear from para 150 of the white paper on The future relationship between the United Kingdom and the European Union that that remains the government's aspiration.

Anyone wishing to discuss this article or the consequences of Brexit generally should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

Comments

Post a Comment

Popular posts from this blog

Copyright: Primary Infirngement - Copying

The right to copy a copyright work is restricted to the copyright owner by s.2 (1) and s.16 (1) (a) of the  Copyright, Designs and Patents Act 1988 . The restriction applies to every description of copyright work though different provisions apply to different types of work (s.17 (1)). This right to restrict copying is referred to as the right of reproduction in art 9 of the Bern Convention and art 2 of the "Copyright in the Information Society" or  Copyright and Related Rights Directive  (Directive 2001/29). Literary Musical, Dramatic or Artistic Works Copying in relation to an artistic, dramatic, literary or musical work  work means reproducing the work in any material form including storing the work in any medium by electronic means. In the case of an artistic work this includes making a copy in 3 dimensions of a 2 dimensional work and the making of a copy in 3 dimensions of a 3 dimensional work. Films and Broadcasts S.17 (4) of the 1988 Act as amended  includes within the
Read more

Patents - Gilead Sciences Inc v NuCana Plc

Image
  Jane Lamber t Patents Court  (Mr Justice Meade) G ilead Sciences Inc and another NuCana PLC  [2023] EWHC 611 (Pat) (21 March 2023) This was an action by Gilead Sciences Inc. and its British subsidiary Gilead Sciences Ltd ("Gilead") for revocation of two European Patents (UK) that had been granted to NuCana Plc ("NoCana"), namely  EP 2 955 190 B1 (“EP190”)  and   EP 3 904 365 B1 (“EP365”) .  NuCana complained that Gilead's product  sofosbuvir  infringed its patents. Mr Justice Meade, who tried the action, could see no real defence to the counterclaim if the claims of the patents were valid. Grounds of Revocation Gilead sought revocation of the patents on the following grounds: Added matter in that the  Markush group definitions of the claims  of the patents are not clearly and unambiguously disclosed in the original application; Lack of plausibility in that the Patents do not plausibly disclose any technical contribution common to substantially all the claimed
Read more

Copyright in Photographs: Temple Island Collections and Creation Records

Image
In our very first NIPC newsletter which we published in June 1997 I wrote a case note on Mr. Justice Lloyd's decision in  Creation Records Ltd. and Others v News Group Newspapers Ltd   [1997] EMLR 444, [1997] EWHC Ch 370, (1997) 16 Tr LR 544. In that case Mr. Noel Gallagher of Oasis and others applied for an interlocutory injunction to restrain The Sun from offering for sale and selling a poster of Oasis that featured a photo of an elaborate set that included a white Rolls Royce in a country club swimming pool. The Sun's photograph was very similar to the photograph that appeared on an Oasis album cover. The similarity arose because The Sun's photographer shot the same scene at roughly the same time and from the same angle as Mr. Gallagher's photographer but he did not reproduce any part of Oasis's print or negative. The learned judge held that the plaintiffs had no arguable case for infringement of copyright though he accepted that they had an arguable case for br
Read more