Going it alone: possible outcomes for life sciences
The UK is aiming to leave the EU by March 2019. This means a lot of things are set to change in the next two years.
Since the UK government started its withdrawal process in late March, the UK and the rest of the EU life sciences sectors have been trying to secure their IP positions.
According to Alasdair Poore, partner at Mills & Reeve in the UK, one of the aspects which will change in the life sciences area is research.
“The problems that universities are already experiencing are to some extent across multinational research groups, and there is uncertainty in putting together such groups,” he says.
Jason Rutt, at Boult Wade Tennant in the UK, says that Brexit will affect the country’s access to EU funding. According to Rutt, there are EU academic grants available in the life sciences to which the UK will no longer have access.
He adds: “Generally the UK does very well out of the academic grant pool, and it probably gets a disproportionate amount. A lot of life sciences IP will come from cutting-edge R&D and that is being done at academic institutions. As that funding dries up there will be fewer opportunities to create new life sciences IP.”
Poore and Rutt agree that the potential loss of the European Medicines Agency (EMA) from London will also affect the UK.
Poore says: “There is talk about the intention to move the EMA out of the UK and it seems pretty inevitable unless some sort of agreement is reached.
“At the moment there seems to be momentum for reaching an agreement in the short term that means it is likely that the EMA will be moved before the end of the two-year period.”
This, according to Poore, will have a big impact on some of the pharmaceutical bioscience businesses.
“There is a significant benefit from being closer to where the regulator is,” he comments.
Whither the UPC
Rutt predicts that the UK will still ratify the Unified Patent Court (UPC) Agreement.
“The UK was due to ratify in May but I think that will be delayed by the general election on June 8. The UK would likely ratify the UPC Agreement in June or July,” he says.
While there is a lot of focus on the departure of the UK from the EU, relationships need to be maintained. As Rutt explains, the life sciences is a global market, and for this reason, countries will continue to do business with one another.
Poore predicts that beside the question of exhaustion of rights, the relationship between the UK and other EU countries will remain neutral. Rutt and Poore both say that because the UK is part of the European Patent Convention (EPC), the rules will probably remain uniform.
Rutt explains: “On an IP level, I don’t think it will have a massive effect. We are a member of the EPC, and to be in the EPC you don’t have to be a member of the EU. UK courts follow the EPC decisions to a large extent.”
He adds: “Judges and IP offices have always cooperated around the world. They learn from each other and I expect that the UK Intellectual Property Office (UKIPO) and the UK courts will stay close to the EPC practice.”
Jan Krauss of Boehmert & Boehmert in Germany has a somewhat different view from that of the UK lawyers.
“Brexit is a disaster for British biotech, in particular for education and human resources,” says Krauss.
“The exchange of scientists between continental Europe and the UK will be more difficult and that will cause trouble for UK companies as they may have difficulty attracting people from other countries,” he adds.
According to Krauss, what is most likely to happen is that the UK over time will develop more independent rules and regulations relating to the patentability of life sciences inventions.
“In principle that is not a bad thing for the UK because the UK law is more liberal with respect to patentability compared to the continental European law.
“It’s still very likely that the British judges will look at Europe’s decisions, and the other way around, but I would anticipate that the British case law would no longer have the relevance to the continent that it has right now,” he adds.
