Aidan O’Neill QC
EU law and intellectual property
Article17(2) of the CFR states unequivocally that:
“Intellectual property shall be protected”.
Post-Brexit, assuming the jurisdiction of the Court of Justice is indeed repudiated as provided for under the Withdrawal Bill, the UK courts will be free to ignore Europe-wide consideration if so minded, and develop its own national approach. The post-Brexit judicial economy might come to resemble that which currently applies in matters concerning patents in Europe.
In its Opinion 1/09, the CJEU effectively vetoed, as incompatible with EU law and more particularly its position as the apex court and final arbiter in the EU on all issues of EU law, the proposals contained in a draft Agreement among the Member State, the EU and non-EU states who were also parties to the European Patents Convention (‘EPC’) and others for the establishment of a European and Community Patents Court. The immediate response from the Member States has been to exercise “enhanced co-operation” directly among themselves to enter into a new international agreement which parallels but is not fully integrated into formal framework and structures of the European Treaties. The Unified Patent Court Agreement (16351/12) seeks to create a new Unified Patent Court (UPC) for the settlement of disputes relating to European patents and European patents with unitary effect. This agreement is open to accession by any Member State of the European Union. But, responding to the CJEU’s concerns, the Agreement is not open to states outside of the European Union. The idea is that the Unified Patent Court shall become a shared common court among the Member States which contract into it, but will be subject to the same obligations under EU law as any national court of the Member States. In this way the CJEU can rest assured that it will not be supplanted from its apex position.  The UPC will be subject to the jurisdiction of the CJEU as regards the interpretation and application of EU law relative to patents and may make preliminary references to it. At the time of writing all the Member States other than Spain and Poland had acceded to the UPC Agreement. But post-Brexit the UK will no longer be a Member State and therefore not able to participate in the UPC once it is set up.
In Actavis UK Limited v Eli Lilly and Company, when considering whether or not pharmaceutical products manufactured by the appellants would infringe a European patent owned by the respondent, the Court looked at the approach to infringement in the courts of other EPC states, including the national courts of Germany, France, Italy and Spain to inform the Court’s own judgment. In future patents cases doubtless the Court may refer to rulings of the UPC, but it will remain the final arbiter on this matter in the UK.
Whereas patents do not fall fully within the ambit of EU law, trade-marks do. M v R concerned a prosecution of individuals who were alleged to have been involved in the bulk importation and subsequent sale within the EU of various branded goods manufactured in countries outside the single market, a proportion of which goods, at least, were not counterfeits but had been manufactured with the authorisation of the trade mark proprietor, albeit they had thereafter been disposed of without his authority (so-called grey goods). It might be said that art 7(1) of the Trademarks Directive provides the authority for trade mark owners to be permitted to prohibit its use in relation to goods which have not been put on the EU single market under that trade mark by the proprietor or with his consent. Following the analysis of the Grand Chamber CJEU in Åklagaren v Hans Åkerberg Fransson this might be considered a sufficient connection with EU law to have allowed those being prosecuted to rely in argument on provisions of the Charter including: the freedom to conduct a business protected under art 16 of the CFR; the right to own, use, dispose of and bequeath his or her lawfully acquired possessions protected under art 17(1) of the CFR; the presumption of innocence and right of defence protected by art 48 of the CFR; and the principles of legality and proportionality of criminal offences and penalties protected by art 49 of the CFR. EU law was, however, the dog that did not bark in this instance.
This is an excerpt from a chapter in Daniel Clarry (ed), The UK Supreme Court Yearbook, Volume 8: 2016-2017 Legal Year (Appellate Press 2017).
  ECR I-1137.
 See Case C-147/13 Spain v. Council ECLI:EU:C:2015:299 where the CJEU Grand Chamber rejcted the application by Spain for the annulment of Council Regulation (EU) No 1260/2012 which implemented enhanced cooperation in the area of the creation of unitary patent protection. . Council Decision 2011/167/EU of 10 March 2011 authorised enhanced cooperation in the area of the creation of unitary patent protection.
  UKSC 48.
 See eg Council Directive (EC) 2008/95 to approximate the laws of Member States relating to trade marks  OJ L299/25 (‘Trademarks Directive’).
  UKSC 58,  1 WLR 3006.
 Case C-617/10 EU:C:2013:105  2 CMLR 46 .