So put the kettle on, take five from your day and we’ll get started!
Intellectual Property and Brexit: Much ado about… Patents
Patents are all about inventions. Inventions are defined as a solution to a particular technological problem. This may take the form of a product or process. So, a patent can cover many things – from the formulation of a medicine, to new tech in your smartphone.
Patents grant the inventor rights that help them protect these kinds of inventions. In exchange, inventors must disclose the nature of their invention to the public. This, in essence, is what a patent is – a public document describing the invention. (It’s rare for a patent to be granted for inventions people already know about.)
Patent rights stop others from using or copying the invention without legal recourse. It means that they either have to pay for the privilege, or lawyer up! A patent lasts a set duration (25 years in the UK). Thereafter, the knowledge becomes available to anyone*. Because of this, patents are very important to inventors.
Before the Brexit vote – the EU and UK were posturing toward a Unified Patent Court (UPC). Whilst inventors can register inventions in the EU currently through the EPO – its not ideal. Enforcing European patents currently relies upon very expensive high court actions. The UPC would provide a court with capped costs, efficient processes and IP experts on hand. You can see why it’s something that everyone is looking to work toward.
Putting ink to paper on this was (of course!) delayed in light of the Brexit referendum…
The more things change, the more they stay the same!
Little looks set to change! On the 28th of November 2016, the UK announced it would ratify the UPC agreement. (Thought this remains an intention at this stage.) Brexit will mean broader resistance to supranational legislation from the EU. Yet, current overtures suggest this will be least felt in the patent arena. This is because it makes sense for all to simplify what has been a very frustrating situation.
There will also be no impact on UK-registered EU patents after the break. The EPO is independent of the EU. As such, it already ratifies non-EU European members (e.g. Norway, Turkey, Switzerland). Leaving the EU does not mean leaving the EPO.
So the status of filing (and pending) patents remains the same – as they are isolated from the EU. As it stands, (and after Brexit) at the EPO grant stage; the inventor can select the jurisdiction of the patent. Should the UPC come into affect (and the UK confirm it’s role) optimised protection can be obtained via a UP.
The only thing to note is that if the UK doesn’t join the UPC, a UP will only be in effect within EU countries. So, pending an agreement before it’s launch in early 2018… it may be worth holding out on registering Unitary Patents for the time being. That is; if you seek protect innovation activity in the UK.
Summary and Conclusions
So, it seems that as far as it goes with patents – the waters remain calm. Much of this is a consequence of plans being in place before the big vote. This collaborative approach promises the most beneficial outcome of all. (There’s is a lesson in there somewhere about how the rest of the negotiations could be handled!)
To conclude, much is set to change when Brexit occurs proper. And whilst many things remain unclear and subject to change… What is clear is that certain approaches are being explored. Savvy business people can prepare; and even benefit from these imminent changes!
by Martin Hendry · Published December 13, 2017
· Last modified January 31, 2019