Brexit from an IP Law point of view

By Cal Evans
March 15, 2017

BrexitWith 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[1], 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.

_______________

[1] According to Facts and Figures 2015 as published by The Intellectual Property Office (Page 3)

The Author

Cal Evans

Cal Evans is an International Litigation Professional. He works in the area of international corporate defense specializing in corporate personal injury, intellectual property and finance. He graduated from the University of Surrey School of Law with Honors in 2010 and went onto obtain his Post Graduate Diploma in law and Masters from The School of Law in London, England. Cal has worked in international litigation across Europe and the USA and spent time as a UK government advisor with the Department of Business Innovation and Skills for the English Government in London. He splits his time between London, Los Angeles and New York, working with law firms and companies on complex litigation. His enjoys surfing, exercising and light aircraft flying. Finally, Cal serves on a number of not-for profit boards dedicated to giving back.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 14 Comments comments. Join the discussion.

  1. Brain Sick March 16, 2017 4:56 am

    So many random words…. “This means if I register a patent in London, it still has as much legal validity in Paris, Berlin or Warsaw.” what???????

  2. Mar Ferman March 16, 2017 5:41 am

    Dear Sir,
    Isn’t it a bit messy to talk about UK new post-Brexit patents system and approach when UK will still remain within the European Patent Convention, by the way, not a EU system at all? Will UK innovation be of such a technically irrelevant inventive scope that only UK patents applications will be applied for? Your article need a review where the different IP rights are considered separately, I am afraid.

  3. Norbert March 16, 2017 8:05 am

    Consider that Switzerland and Turkey are EPO member states but not EU members, so there is already some precedent for the leave as is model.

  4. Mar Ferman March 16, 2017 12:03 pm

    Switzerland and Turkey never left because were never in the EU. Please note that European Patent Convention supports the granting and registration of a European patent (not of an European Union Patent!!) under a multilateral international agreement which any non-EU member state was and will always allow to join to. The article seems to miss essential basics on international law, IP and European Patent system. And some comments too.

  5. Cal Evans March 17, 2017 1:50 pm

    Mar, your understanding of the European patent system with regard to the EU seems confused.

    Here is an article from the European Union on the formation of Domestic v EU patents.

    https://ec.europa.eu/growth/industry/intellectual-property/patents_en

    Of course, I am simply posting the options after the U.K. Has left the EU.

  6. Cal Evans March 17, 2017 3:25 pm

    Mar,

    I think you have a misunderstanding of how the patent system works in Europe. The two methods are domestic and EU

    Here in an article from the Telegraph discussing post Brexit standpoint.
    http://www.telegraph.co.uk/business/2016/11/28/uk-ratify-eu-patent-system-despite-brexit/

    For more information you can look at Europa guidance.

    https://ec.europa.eu/growth/industry/intellectual-property/patents_en

  7. Mar Ferman March 20, 2017 6:02 am

    Cal,
    The Unitary Patent is not still in force because the Unitary Patent Court regulation (one of the two EU Regulations on the subject) has not entered into force. The entering into forced required that among the 13 countries, France Germany and UK ratify both regulations . This is the reason why UK ratified recently the regulation on the unitary patent court: To make possible that both regulations enter into force, no matter Brexit, having in mind that the Unitary Patent is key for cost reduction of UK companies when protecting innovation by patent applications (something that the Telegraph was of course unable to understand, as ususal with many other EU related matters).
    Why the Unitary Patent system is not still working? Because it still misses one ratifiying country.
    Conclusion: There is no EU patent system as such live today. The only patent that may cover most of European territory (again, European does not only mean EU) is the European patent granted in accordance with European Patent Convention. I repeat, this is a multilateral agreement that will survive Brexit (Frexit, Gerxit or whatever), and UK will remain part of such a convention no matter leaving the EU. Together with the European Patent system, the national patent systems do and will co-exist.
    This is, today, an invention may be protected at european level with a European Patent or at national level, with a national patent. Of course, you may apply for 28 national patents in order to cover all EU territory, but you will have to give very good explanations to your clients on costs derived of not applying for a European Patent which will be cheaper, of unquestionable quality and even cover european territory beyond stritly EU territory.
    Next time I will have to charge you for my explanations, I am afraid.

  8. Cal Evans March 20, 2017 6:23 am

    Mar,

    You seem to have missed the point of this article drawing differences between the National and European Union based court system that the EU has the mechanism to put in place.

    perhaps this article from the Guardian will enlighten you a little further.

    https://www.theguardian.com/small-business-network/2016/mar/29/how-would-brexit-affect-eu-patent-protection

    My article is a food for thought piece, not legal advice, playing on a suggestive idea of total autonomy v continued application of a unified patent system which is evolving under the EU (see Guardian piece) which will obviously have to change.

    You’re replying with steadfast legal position which is going to change once Britain leaves the EU, and it’s worrying you give no recognition to that change along with continuing to portray a “business as usual approach”.

    See David Knights quote in the Guardian article. Pretty much summarised the extreme of the article I have written above.

    As for tongue in cheek comments like “will have to charge you for my time”, i’m always happy to enter into meaningful discussions which is why I write thought provoking articles entering into the “what if” situation. However, if you are going to suggest someone pay you for the worryingly wrong advice you have copied and pasted (less a few textual changes) from the Europa website in order to look intelligent on the subject, then its going to have to be a no from me.

    Your trolling will have to be done on someone else article, i’m afraid.

  9. Mar Ferman March 20, 2017 11:37 am

    I would have expected a more professional reaction, with no more reference to generalisitc UK tabloids, and, instead, a more solid Intellectual Property argumentation. I just think you lack the best IP law background, just that. More important, I would have expected to have a better sense of humour. Obviously you cannot be British.
    As said, no money, no advice.

  10. Cal Evans March 20, 2017 11:50 am

    “Generalistic” and “Argumentation” amazing misuse of words for someone who then questions if the writer is British? Ironic question form a person who struggles to grasp the language.

    It’s sad that an individual that uses fake name (or doesn’t subscribe to any social media) then resorts to basic level racism when they’re put in their place.

    If you want to lecture someone about “intelligent debate” it’s best not to hide on the internet like a 12 year old while misusing words. Alternatively, if you don’t like it, don’t come onto a professional website and read articles just to criticise like a petulant child because the point is lost on you.

    If you want to carry on with some kind of intelligent debate or dialogue, feel free add me on Linkedin. Let’s see how intelligent you are when people actually know who the grammatically incorrect, borderline racist, troll is.

  11. Mar Ferman March 20, 2017 11:59 am

    Now unrespectfully behaving…Droped for being invited to IP law professional forums.
    Linkedin?. No money, no advice. Do not insist.
    Read, think and learnt. And do then redraft your article seriously, please. Or perhaps not.

  12. Cal Evans March 20, 2017 12:07 pm

    Like I said “Mar”, any time you want to discuss further you know how to find me and how to engage in further dialogue. I can even draw pictures if it would help you.

    Until then, there’s a few articles on this website that might be more up you street.

    http://www.bbc.co.uk/cbbc

    And if you’re so desperate for money, I will make you a deal. You get in contact, and pass me your practice details, SRA number, Bar number or Roll ID (whichever applies) and I will gladly pay you an hours rate to come and discuss this article further with you. That way you can watch the pennies you’re so worried about.

    Until then enjoy the cartoons, and best of luck you loon.

  13. Mar Ferman March 20, 2017 1:26 pm

    And suddenly my answer to your last comment dissapeared.
    “It’s sad that an individual that uses fake name (or doesn’t subscribe to any social media) then resorts to basic level racism when they’re put in their place”. “Let’s see how intelligent you are when people actually know who the grammatically incorrect, borderline racist, troll is”.
    Quotations from your comments on racism adressed to a mere different opinion.

    Anyway, you do not seem to belong to the Intellectual Property world. You know this, and merely adventuring is not enought. It is complex. My advice is that knowledge in IP is mostly a matter of reading and reading. And not so much about writing and writing. That’s my friendly advice to a young lawyer.

  14. Gene Quinn March 20, 2017 1:59 pm

    Mar-

    Yes. Your last comment disappeared. It was marked as spam. I saw it and I was not going to save it. It was a nearly incomprehensible rant full of typos and misspellings. You really have a lot of nerve giving Mr. Evans a hard time when you have such a difficult time conveying basic thoughts. So my friendly advice to you is that you look in the mirror.

    -Gene

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