With the impending triggering of Article 50 by the UK government, the legal mechanism for removing the United Kingdom from the European Union, many are beginning to realize that after months of posturing very little has been done to safeguard anything by way of process between the European Union and its soon to be departed member The United Kingdom generally, especially with regard to IP law.
For those of us that work in IP the prospect of leaving the European Union poses two main questions. What will happen after the UK leaves the EU? And, will it be better? I should stress, I am a half glass full kind of person. Both these questions are mutually exclusive but equally as important. It feels like many have spent months asking what WILL l happen after the UK leaves, few have been asking if it will be any BETTER. After all, change is often portrayed in a negative way but people often forget that change is how we evolve. It’s what the law does as a rule of thumb.
For those of you who are unfamiliar with how European Politics works and why it is important to Patent Law of the United Kingdom, I will try and give you a top level overview. Think of the legal structure of the EU as much the same as the Federal Structure in the United States. The EU, like the Federal government, has a mandate to regulate over certain areas of industrial and personal law (such as travel). Included in that power is Intellectual Property Law. This central government is formed up of several commissions, parliaments, and presidents that then direct and dictate various laws that fall within the scope of European jurisdiction. Countries are member states and all agree to uphold the sovereignty of European Law, which includes a cross boarder policy on Intellectual Property law generally. This means if I register a patent in London, it still has as much legal validity in Paris, Berlin or Warsaw.
Now, when you imagine the intricate framework of European Law, it is not hard to see how it has woven itself so well and so closely into its “member states” or in this case the United Kingdom. Put simply, there is universal approach, law, and regulation across all members states to recognize and honor the Intellectual Property rights of other member states. The European Union centrally registered IP rights and one right registered in one state will cover the whole of the European Union. Exciting stuff!
So who really cares if the UK leaves the European Union? Well, it would be worth keeping in mind that the Intellectual Property Office in the UK calculated that in 2014 and 2015 the United Kingdom filed the most number of IP registrations for patents and copyrights of any country globally, so in that sense what the United Kingdom does next is kind of a big deal.
Because the UK is leaving the European Union it presents it with a real opportunity to set up their own framework of IP law. That means their own laws covering only the United Kingdom, where IP law would only stand in the UK and nowhere else in the world. When we pause to consider how realistic that would be, it is actually a genuine consideration. On the one hand England and Wales (Two countries in the United Kingdom) have already taken part steps to manage a life outside the EU without even thinking about it. In 2007 the Legal Services Act deregulated the activities associated with Intellectual Property. In doing so it created the class of Patent Attorney’s which specialize only in Patent Law (and there is a separate branch for Copyright law). This makes sense because the educational requirements focus more on a “mechanical/engineering” then a pure legal side. While it is associated with a legal activity, it is not necessary for you to pass the bar in England to become a “Patent Attorney” For those of you interested, the only time “Attorney” is used in England is in this context. The rest of the legal profession are known as Solicitors, Barristers and Lawyers (all of which can also deal with IP law in one way or another). This means even before we are to consider if the framework could be put in place for a separate IP system in the UK, we can consider the country already half way there in terms of those that manage the IP registration and administration process.
The next element is European Law. Simply put, that is already enshrined into UK law and will remain even after the exit occurs. As time progresses the UK court system may simply overrule judgments made by European Central Courts, but they may also chose to keep them as part of the UK legal framework. Either way there is no major concern about the country simply abandoning the rule of logical law overnight that has been developed over years of hard fought court battles. Simply put, no one is staying up all night drafting brand new laws when perfectly good ones exist.
Aside of the precedent law and the managing attorneys all we have left to worry about is mutual recognition. The UK is the fifth largest economy in the world, so I have little doubt that companies would pay solid money to protect their interest in that country alone, however in our modern day and age the concept of mutual recognition of protections is ever important to protect innovation. Therefore in order to pull this off the UK would have to make Patents registered in its country either totally mutually exclusive (effectively taking what is already there and making all new patents register in the region) or partner with the largest commonwealth in the world and expand upon current patent treaties and mutual recognition, in essence becoming more of a power house than the EU currently is. For those of you not in the Know countries like Canada, BVI, Australia, New Zealand are all members of the English Commonwealth. It’s the reason why the British Queen features on their currency, stamps, and many other administrative areas.
Of course, flipping the coin and looking at the remaining arguments is fairly simple. Remaining in the sense of the UK patent system and office still being subject to the jurisdiction of the European Union. Simple answer is, if the system isn’t broken, don’t try and fix it. The system has worked well for a number of years and would continue to do so.
The EU commission and the UK patent office have already both signaled that it would be their intention to lobby for things to remain as they currently are after Brexit. Effectively meaning that the framework in place would remain long after the UK has left the EU. This does however create a constitutional crisis as to what Brexit really means (i.e., can you pick and chose over what elements you want to keep in place and those you want to actually be out of with the EU). A position that many European and British politicians have signified will not happen. Many suspect it will be an all or nothing approach, we will either leave for good and set up alone, or we will leave and a consultation will be undertaken with public opinion to “re-join” the European Patent system. One such department rejoining that others may also be considering.
Regardless of whichever system the United Kingdom picks both have advantages and disadvantages. Leaving, means more competition in the IP world, which some people hate and some people love. I personally think that a new IP market in 2017 would be an amazing thing that promotes amazing opportunities. The disadvantage of that is that the UK would have to maintain its mutuality in order for other countries to recognize patents that originate from the UK. Remember, those who make the most also register the most. A patent that’s only good in the UK wont protect the largest patent registering country in other jurisdictions. Flip side of course is remaining in the Eu system which keeps things simple from a logistical point of view but generates several constitutional issues.
Regardless of whatever option the authorities chose for I think that no one should forget that opportunities like this come once in a lifetime and present real opportunities and challenges that could better serve the IP world. Provided that protections are retained and administered correctly there is a world of opportunities and options for the IP world in Europe over the next 3 years. One I am excited for.
 According to Facts and Figures 2015 as published by The Intellectual Property Office (Page 3)