Just before the Scottish referendum I wrote a couple of articles on the SNP's proposals for intellectual property in a separate Scotland (What would an independent Scottish government do about Intellectual Property? 10 Sept 2014 and More on Scotland and Intellectual Property 13 Sept 2014). Today I shall attempt a similar exercise in respect of Brexit.
What would not change
Were we to withdraw from the European Union we would probably remain a member of the World Trade Organization and bound by TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights). Art 2 (1) of TRIPS requires WTO members to comply with Articles 1 through 12, and Article 19, of the Paris Convention. There is no reason why we should not remain party to the Berne, Rome and other multilateral agreements to which we are party including the European Patent Convention.
But what would
However, we would miss out on the unitary patent and the Unified Patent Court because art 84 (1) of the Agreement on a Unified Patent Court makes clear that it is open for signature only to EU member states. That would be a crying shame for no country in Europe would benefit from the Unified Patent Court than the United Kingdom. One of the reasons why the UK lags consistently behind not only Germany and France but also Switzerland and the Netherlands in the number of European patent applications is that it costs much more to enforce a patent in England and Wales than anywhere else in Europe (see Preparing for the Unified Patent Court 23 Jan 2016). The UPC would place us on a level playing field with our continental competitors. That is why governments of all parties have strived to persuade out partners to ratify first the Community Patent Convention, then adopt an EU patent regulation and finally the unitary patent for over 40 years.
Of course there would be nothing to stop a British company from applying for a unitary patent but there would no longer be a section of the Central Division of the Court of First Instance or a local division in London. If a British patentee wanted to enforce his or her unitary patent he or she would have to cross the channel to do so. If he or she wanted to enforce his or her European patent (UK) in the UK he or she would have to go to IPEC or the Patents Court (or possibly the Court of Session or Chancery Division of the High Court of Northern Ireland) without the option of the UPC.
For the same reason the Community trade mark and Community design regulations would cease to apply to the UK once we withdrew from the EU. No doubt UK businesses could continue to hold Community trade marks and registered Community designs for the rest of the EU but the Chancery Division, IPEC and County Court would cease to be Community trade mark and design courts, It is also possible that English would cease to be a working language at OHIM after the withdrawal of the biggest English speaking state.
What is less clear
Nearly half a century of legislation to implement directives would remain in force for the time being but we would not update our legislation with the rest of Europe. The decisions of the Court of Justice of the European Union would cease to bind us though its decisions would no doubt have persuasive authority for a time. Much would depend on the sort of relationship with the rest of the EU that we could negotiate in the two years allowed by art 50 (2) of the Treaty on European Unity. If we were to access the single market on the same terms as Norway of Switzerland we would almost certainly have to accept the single market legislation such as the Trade Mark Directive since that is a text with EEA relevance.
There are of other possible consequences were we to leave the EU. Our departure might prompt other states to leave which might mean the end to the EU or at least the single market. That would not be good for British business. We would lose European research funding, development grants, scholar exchanges and a whole load more. With the possible exception of the enforcement directive I can think if almost no advantage from being outside the EU which is why the overwhelming majority or creative and innovative people will vote to stay in.