It took a year after the official triggering of Article 50 before we learned how Intellectual Property Rights (IPR) may be affected by Brexit from the partially finalized agreement establishing a framework for the entire Brexit process. Yet today, we are still far from having a complete picture. As a summary of the Brexit-themed report released earlier this spring by CIOPORA to its members, the present article provides an overview of the IPR-related aspects of the UK–EU “break-up story”.
On March 19, 2018, the delegations of the EU and the UK published a draft version of the Withdrawal Agreement (WA). With some minor exceptions, most of the provisions referring to IPR have been agreed upon at the negotiators’ level, with only minor technical legal changes yet to come.
Dates to mark on your calendar.
One of the most important provisions of the WA is the establishment of the Transition Period which will begin on March 29, 2019 and end on December 31, 2020. During this period, the UK will formally cease to be a part of the EU, albeit the EU laws will remain in force and will continue to be applicable on its territory. Regarding the Plant Breeders Rights (PBR), the draft WA foresees that after December 31 all existing Community Plant Variety Rights (CPVR) will, without any re-examination, become comparable registered and enforceable UK PVR titles.
As to the pending applications, a CPVR applicant will have an ad hoc right of priority in the UK during the period of six months after the end of the transition period, while the date of priority of their CPVR application will be treated as the date of their PBR application in the UK.
Best case scenario.
For instance, if a breeder applies for a CPVR in September 2018 for a variety which was first sold outside of the EU in November 2014, theoretically, it will give them time until June 30, 2021, to submit an application before the UK PBR office without losing novelty. In such a case, the usual novelty period of four years (for most varieties) foreseen by the UK regulation will be extended to six-and-a-half years.
Don’t count your chickens.
Now, let’s have a look at another possible case scenario. A breeder files an application before the CPVO in one of the last months of the transition period, i.e. from July to December 2020. In this case, it remains unclear whether the applicant is entitled to a one year priority claim according to the UK PVP Act or whether the six month period provided by the WA prevails. Common sense suggests that the longer term should apply, however, applicants should not count their chickens until the WA is signed.
Another aspect to consider is exhaustion of the right. Should the UK leave the European Economic Area, there is a possibility that the UK might abandon the system of regional exhaustion and come back to the system of national exhaustion instead.
Furthermore, as announced by the CPVO, after the WA enters into force, the UK offices will no longer be entrusted with DUS examinations affecting over 650 species that to the present are exclusively examined by the UK-based institutions. Despite the CPVO’s efforts, only half of these botanical taxa could by now be entrusted to other European examination offices. Again, it remains unclear whether the CPVO will continue taking over DUS reports from the UK examination offices after the end of the transition period.
Although the guarantee of CPVR title recognition provided by the WA is encouraging, there are still a number of issues that parties on both sides of the Channel have yet to tackle. At CIOPORA, we shall continue to closely monitor this process to guarantee an agreement that provides for a smooth transition and protection of breeders’ rights after the Brexit.
Author: Micaela Filippo