On Thursday this week, the High Court ruled that Prime Minister May’s government cannot use crown prerogative powers to activate Article 50 to start the Brexit process. This means that members of parliament will have to vote on whether or not Article 50 is triggered.
If you would like to know the details of why this judgement was made, click here to read more.
What Happens Now with Article 50?
The government is clearly furious and has indicated that they will challenge the decision in the Supreme Court. Dates have been provisionally set for the case to be heard on the 7th and 8th of December. If the Supreme Court overturns the decision, then the government will be able to trigger Article 50 without a parliamentary vote, as planned.
However, if the decision stands, then the government will have two options. The first is to attempt to get a bill through Parliament and the House of Lords. The second is to appeal to the Court of Justice of the European Union (you couldn’t make it up!)
Realistically, this would leave the government to face the Commons and the Lords. The word is that it is unlikely that MPs will vote against triggering Article 50. To do so would appear undemocratic in the face of the referendum majority, but this is contradictory to the personal views held by the majority of MPs and so the party whips will have their work cut out to get the vote the Government wants.
Baroness Angela Smith, Labour’s leader in the House of Lords, has said that “We will scrutinise. We will examine. But my Lords – we will not block”. Whether her opinion is representative of a broader sentiment in the upper house, only time will tell. If it is, then a parliamentary vote would likely stand. I wonder if secretly she’s hoping that parliament will vote against Brexit. Whatever happens, the uncertainty will be with us a while yet.
What Does This Mean for my IP?
The advice to our clients remains the same – it’s business as usual. The situation with patents is simple: the European Patent Office is a separate organisation from the EU, and the process of patent prosecution in Europe will be substantially unaffected. Of course, fluctuations in the exchange rate are affecting the cost of protection, but the legal framework remains intact.
The situation for trademarks is less clear. Current European Union Trademarks and Registered Community Designs are tied to the EU, and may cease to have effect after Brexit. We envisage that the UK Government will introduce law to provide at least provisional protection to designs and marks in the UK, already registered in the EU. If you are a UK company, you should be registering your new designs and brands in the UK as separate registrations to cover your position, whatever happens.
If you are concerned about how you should be planning to manage your IP portfolio through the Brexit process, Albright IP can provide advice based on our extensive experience tailored to your particular situation.
For more information on IP and Brexit have a look at one of our previous posts: “5 FACTS ABOUT BREXIT AND IP“.