European Circuit Webinar "IP Litigation post Brexit"

Author Jtdi  Copyright waived by the author

Jane Lambert

Yesterday I attended a webinar entitled "IP Litigation post-Brexit". It was presented by the European Circuit which is an association of advocates across the European Union and beyond modelled loosely on the Circuits of the Bar of England and Wales. The webinar was opened by the Leader of the Circuit, Mr Colm Ó hOisín SC. It was chaired by Ms Margaret Gray SC. The speakers were Nicholas Saunders QC of Brick Court, Jonathan Newman SC and Sir Robin Jacob.

The questions that I hoped might be addressed in this webinar were "What is to become of the Unified Patent Court?" and "What is to happen to cross-border litigation after Regulation (EU) No 1215/2012 ceases to apply to the UK?"  The first question was addressed because I asked it as did Fidelma Macken.  Sadly, nobody raised the second.

Mr Saunders noted that a vast volume of EU legislation has been absorbed into the laws of the United Kingdom.  From 1 Jan 2021 judges in this country will no longer refer points of law relating to that legislation to the Court of Justice of the European Union under art 267 of the Treaty on the Functioning of the European Union.  As British judges will have to do that for themselves he did not think it would be long before noticeable divergencies in the interpretation of the same instrument emerged.

Mr Newman agreed and opined that Irish courts would become less and less likely to follow English decisions as a consequence.  However. most of his presentation focused on the Commercial Court of the Republic of Ireland. and a proposal to create an intellectual property list within that Court. Sir Robin said that Ireland had a great opportunity as the main common law jurisdiction to take much of the work that will no longer go to London but it was an opportunity that Ireland was in danger of losing.  Ireland had yet to ratify the Unified Patent Court Agreement and failed to send judges to judicial forums.   The Netherlands was also a small country but the Dutch courts and lawyers had made a big contribution to the development of European IP law.

On the question of what will happen to the Unified Patent Court, Sir Robin thought that the agreement will have to be renegotiated.   Annex II of the Agreement allocated chemistry and pharmaceutical work to London. Sir Robin doubted whether businesses in those industries would want to litigate their disputes in Milan.  Judges and lawyers from the UK had contributed massively to the preparations of the Court including the procedural rules.  He was saddened by his country's withdrawal from the project and believed that the UK would be missed.

Although I enjoyed the presentations I think the webinar would have been improved greatly by contributions from IP Bar Association, the IP Lawyers Associations and the Chartered Institutes of Patent and Trade Mark Attorneys.  Sir Robin suggested that the Irish might send for Mr Justice Birss who would be an excellent speaker.  Perhaps, Lord Justice Arnold might be even better as it was he who reformed the Patents County Court and created the Small Claims Track.

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