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Weekly take: IP law review will cause unnecessary headache

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The UKIPO’s list of EU-derived IP law up for consideration signifies the start of a frantic period – but it could have been so much easier

If the UK government decided to do nothing and allow the EU-derived Design Right (Semiconductor Topographies) (Amendment) to become a part of UK law without review, would anyone notice?

Intellectual property lawyers, maybe. Everyone else, probably not.

I cannot imagine many ardent Brexit supporters claiming that they explicitly voted to break away from those autocratic semiconductor topographies. Nor can I imagine those on the remain side proclaiming that sticking with said topographies is crucial to the UK’s prosperity.

I joke, of course – but as far as IP goes, this is just another example of how Brexit has become muddled and complex. What makes it worse is it was probably avoidable.

Mountain of law

The UKIPO this week published a list of EU-derived law that the government tasked itself with reviewing.

There are more than 60 laws ranging from statutory instruments and interpretations of EU directives to direct regulations. The earmarked laws represent only an initial tranche – there could be even more on the way.

The list is the UKIPO’s first response to the Retained EU Law (Revocation and Reform) Bill 2022. The bill, published on September 23, set out plans to repeal all retained EU law by December 31 2023, unless the law was converted into national law or changed.

Of course, IP only forms a small part of the overall bill, which focuses on all areas of law. The fact that the UKIPO has quickly identified 60 pieces of law demonstrates the mammoth task facing the government.

Some of the IP laws are little-known, but plenty are significant. Vast swathes of trademark law and updates to trade secrets law are included. Many of the laws, sources tell us, have worked perfectly well up to now.

It does beg the question of why this review needed to happen. The laws could have just been assimilated into UK law without the need for extensive review.

Needlessly complex

When Managing IP first reported on the bill, lawyers said the government was needlessly complicating matters for itself.

I couldn’t agree more.

IP law was barely, if at all, spoken about in the buildup to the 2016 referendum. Lawyers generally thought IP alignment with the EU worked well (they still do). And to be blunt, those not in the sector either didn’t know about or care about IP.

Furthermore, UK alignment isn’t purely a result of EU law being imposed on the island nation.

As one partner at an international firm points out, UK law for trade secret protection and enforcement was largely exported to the EU by way of the Trade Secrets Directive.

He asks: “Why would the UK wish to remove that alignment?”

Why, indeed.

Would anyone really notice if this, and other laws, were left untouched?

That may still happen, of course. But given the desire by some figures in the government to have a clean break from the EU, the option is unlikely to be taken up.

If there is justified reason for changing or repealing a law, fine.

But IP practitioners will expect, and should be given, reasoned arguments. They must be consulted too.

One small mercy is that the past judgments of the Court of Justice of the EU that relate to IP, which have been implemented by domestic courts over the years, are not up for review.

This leaves the door open for domestic courts to set their own paths, should they see fit.

It remains true, however, that the government could have made life a lot easier for itself if it adopted the position taken before the referendum and let IP pass by unnoticed.

Clock ticking

Add to this that the government set itself a seemingly arbitrary deadline, and an already complex task has been made even more difficult.

The government has just over 13 months to review the laws, presumably consult with the profession, and decide what to do.

Those with an eye on UK affairs – especially UK residents – will know there are plenty of other problems to be thinking about in the meantime.

Maybe this problem was avoidable.

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