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EU-wide IP Expertise is essential to the life science industry post-Brexit

EU-wide IP Expertise is essential to the life science industry post-Brexit

The UK is world-renowned for its progressive life science and healthcare sectors, which are at the forefront of technical innovation, research excellence, and pioneering treatments.

Life science companies, research and development facilities, scientists and academics working tirelessly across the UK have all helped to strengthen its position among the top three life science hubs in the world.

The Secretary of State for International Trade, Dr Liam Fox MP, recently praised the UK’s world-leading status, and reaffirmed his department’s commitment to supporting the sectors’ continued growth and future success.

The UK’s ability to flourish as a global leader has so far been enhanced by its membership of the European Union (EU), with businesses enjoying the associated benefits including free trade and free movement of goods allowing them relatively seamlessly access to a market of 500 million people in Europe.

One important factor in the success of UK businesses has been the protection provided by Intellectual Property (IP) rights registered across the EU.

However, with Brexit set to take place from 29th March 2019, there could be significant implications for the Intellectual Property landscape, particularly in the life science and healthcare sectors, which rely on their ability to market their products and innovations internationally.

When it comes to Intellectual Property rights post-Brexit, these could be impacted in a number of ways, says Jim Robertson, partner and patent attorney at Intellectual Property firm Wynne-Jones IP.

He said: “Brexit presents a daunting range of challenges to businesses of all kinds. Increasingly important to the value of any business, Intellectual Property (IP) rights will be impacted in a variety of ways.”

Here Jim Robertson outlines the main changes for IP rights holders in the life science and healthcare sectors after the UK’s withdrawal from the EU.

Representation post-Brexit

In the lead up to Brexit much of the widespread discussion and focus has centred around securing IP rights such as patents, trade marks and designs in the UK that are currently overseen by European systems.

Patents and their protection in the UK post-Brexit is particularly relevant in the life science and healthcare industries, which have seen substantial growth in biotechnology innovation in recent years.

This increase has coincided with rapid rises in patent applications and patents granted for biotechnology inventions.

There has been concern that after Brexit these patents would cease to provide protection in the UK.

However, Mr Robertson said that post-Brexit, “European patents” will still provide protection in the UK.

This is because the EPO (European Patent Office) is not an EU institution, and the EPC (European Patent Convention) is not an EU legal instrument.

Instead, various non-EU states (such as Norway, Switzerland and Turkey) are parties to the EPC, and the UK will continue to be party to it post-Brexit.

The big change in patents is likely to come from the Unified Patent Court (UPC). The UPC is an international court which will have jurisdiction over patent disputes across all major EU member states, which at the present time includes the UK.

It will provide a single judgement on matters involving Unitary Patents and European patents, with its ruling having cross-border precedent, and will enable inventors to defend their IP rights across the EU.

The only thing blocking the UPC from coming into existence was UK and German ratification to the UPC Agreement. On 26 April 2018, it was announced that the UK had ratified the UPC Agreement.

That just leaves Germany to ratify the UPC Agreement. However, a challenge before the German constitutional court is preventing that at the moment. The case is listed for this year, and if the constitutional court finds against the challenge then German ratification might take place very rapidly, in turn bringing into force the Unitary Patent Court and the Unitary Patent. If, and when, the UPC comes into existence, it could play a crucial role in determining how the UK will approach patent disputes after Brexit.

Although the UPC may provide simplicity and convenience across Europe, companies in the UK could still face legal complications after Brexit when cases are referred to the Court of Justice of the European Union (CJEU).

However, it has been suggested that the Government may accept the jurisdiction of the UPC to help rule over common patent matters in the UK. It could also be argued that being precluded from the ruling of the CJEU may actually place the UK in a position of power, as it will no longer be affected directly by its wide-ranging judgements.

With regards to owners of EU trade marks and EU designs, there could be a wider, and more concerning implications for their representation in the EU.

“Anyone can file IP rights such an EU trade mark application or an EU design application,” explains Jim Robertson, “The real question is what happens after Brexit given that only a national of a European Economic Area member state can represent you subsequently in prosecuting your application or dealing with other matters.”

Mr Robertson said: “This is incredibly troubling for large numbers of companies in the UK who wish to continue protecting their IP rights and business interests in both the UK and the EU.

“Many could be left searching for new legal representation, who will be unfamiliar with their IP portfolio, lack the necessary knowledge about the company’s area of expertise, and generally are not an adequate fit for their needs.

“This could lead to disputes receiving ineffective representation before the European Union Intellectual Property Office (the EUIPO) when they are relying on it the most.”

In the event of Brexit, UK IP attorneys could lose the right to represent their clients in disputes before the EUIPO as only a national of a European Economic Area state can prosecute an application or deal with other matters.

In order to bypass this technicality, some UK firms plan to divert their EU IPO work to newly-acquired branch offices in the 27 remaining EU states. However, as Mr Robertson points out, many of these offices are best suited to serving local clients which is, after all, why they were originally set up.

However simply redistributing the work in this way, could have negative consequences, and businesses in the life science sector may find that the local firm they chose may be inadequate for their needs.

“The challenge is to retain links between IP owners and their existing contacts in the UK, those attorneys they already know and trust, while minimising problems caused by differences in national laws, languages, cultures and traditions – as well as the tricky question of who can charge the client for the work that’s been carried out,” says Mr Robertson.

As Brexit grinds on and as IP owners and attorneys struggle with these important issues, a Europe-wide IP business is attracting increasing interest. Formed in 2010, AIPEX, the leading European IP law firm, has offices in 13 of 27 EU states. As a Europe-wide operator it offers a tailor-made solution to managing the IP portfolios of pan-regional and international businesses.

The firm’s team of more than 500 highly qualified professionals, over 250 of whom are qualified attorneys, means it can work across a company’s entire IP portfolio, including patents, trade marks and design, as well as key areas such as infringement, prosecution, renewals and strategy.

Through AIPEX, Wynne-Jones IP, which is a founding member, will be able to continue to represent its clients before the EUIPO. “AIPEX will be the address for service for all the EU designs and EU trade marks on the books of Wynne-Jones IP, so we will retain complete control of all of our clients’ affairs,” says Mr Robertson. “Our clients in the UK will notice no difference from how things work now and there will be no double-charging.”

The criteria for one AIPEX client looking to reduce the number of attorneys it was using across Europe, included cost, the quality of work produced and a good professional relationship. “What clinched the deal was AIPEX’s ‘hub-and-spoke’ model – a multi-jurisdictional presence in Europe with a single point of contact,” says the client.

Brexit presents challenges for many thousands of UK businesses, some of whom haven’t even realised it yet. But, with access to an IP pan-European law firm with expertise in all sectors across all EU states, they can turn that challenge into an opportunity.

For more information on Wynne-Jones IP visit:
www.wynne-jones.com For more information on AIPEX visit:  www.aipex-ip.com

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