Following a week of political drama, which has seen the resignation of the Foreign Secretary and the Secretary of State for Exiting the EU, the British Government today published its much-anticipated "White Paper". This sets out the proposals for the future relationship between the UK and EU which were collectively agreed by the Cabinet last week.The White Paper includes, at paragraphs 149-152, a pledge to "explore staying in the [Unified Patent] Court and unitary patent system after the UK leaves the EU".
The questions of whether, and how, the UK might legally continue to participate in the UPC and Unitary Patent systems after Brexit are still disputed, and it is notable that the White Paper does not address this topic in detail. Nevertheless, this appears to formally signify that, provided a legal mechanism can be found and agreed upon by the negotiators, the UK fully intends to remain a participant in the reformed European patent framework. This is likely to be broadly welcomed by business and by the legal community.
The biggest source of uncertainty facing the future of the Unitary Patent system is now not Brexit, but rather the German constitutional complaint which remains pending with no indication as to when (or how) this might be resolved.
Elsewhere, the White Paper also pledges that the UK will establish its own Geographical Indication regime after Brexit, as required by the TRIPS agreement, and that this will "go beyond" the minimum requirements of TRIPS. The status of existing European GI's in the UK after Brexit is still a matter for negotiation, however: the latest version of the draft Withdrawal Agreement shows that the negotiators have not yet reached agreement on continued protection for European GI's in the UK where those GI's are registered prior to the end of the proposed transitional period.
While the White Paper represents the Government's current proposed position for the future relationship, in reality this is merely a starting point for further negotiations with the European Commission. It seems highly likely that further concessions will be made before an agreement can be signed off. Nevertheless, it appears that the direction of travel at present is towards a post-Brexit status which will see the UK closely aligned with the EU.
Further developments in Brexit negotiations which are relevant to intellectual property rights will continue to be reported as they become known.
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