Wednesday, 30 March 2016

Brexit and belief -- but where's the data?

Like the English weather in June, the
consequences of the Brexit referendum
are hard to predict 
On 23 June of this year the people of the United Kingdom go to the poll, to cast their vote in a crucial referendum  on whether this technologically sophisticated and commercially mature nation should remain members of the 28-country European Union or take the significant and probably irreversible step of withdrawing from it.

Many people, from US presidential candidates to influential and articulate groups and bodies in Europe and beyond, are expressing their opinions as to whether it is better for the UK to stay put or shift.  Of particular note here is "Leaving the EU is likely to have a negative effect on IP in the UK", this being the title of a policy statement from the UK's respected representative body for patent practitioners, the Chartered Institute of Patent Attorneys (CIPA). According to CIPA, in a statement that makes it clear that the institute is taking no sides in the forthcoming referendum but is merely acknowledging that its outcome has repercussions for intellectual property:
"Remaining in the EU will guarantee the UK continuing to have access to EU-wide IP apparatus such as the EU trade mark and design rights and, vitally, the new Unitary Patent (UP) and Unified Patent Court (UPC). It will preserve the UK’s status as an influential contributor to these important international frameworks.

The UP and UPC, set to begin operating within the next 24 months, will provide pan-EU patent protection and enforcement. Involvement in these systems, and the establishment of one of the key UPC divisions in London, will bring valuable opportunities to UK businesses, the professionals who support them and our economy as a whole.

CIPA, as the UK representative body for IP practitioners, believes that:
A Brexit could compromise the UK’s access to, participation in and influence over the world’s IP systems. This would not be good for either UK or international IP, or for the role of the UK’s IP attorneys and IP users within the global IP system, Since the IP system supports and incentivises research, development and innovation in the UK, remaining in the EU should better benefit such activities and in turn their contribution to the UK economy,

A Brexit is likely to have a detrimental effect on the current businesses of CIPA members and other IP professionals, and on their competitiveness, in particular in the European market, Since these businesses include significant service exports, their success also affects the UK’s export economy.

A Brexit would bring uncertainty and upheaval to the UK’s IP framework, a framework which is currently stable and well-functioning, global-facing and widely respected. IP rights are valuable commercial tools, their exploitation key to many business strategies and international trading arrangements. IP also incentivises innovation and helps its products to flourish. CIPA urges the UK not to overlook, or indeed underestimate, the impact of the 23 June referendum on IP. ..."
What is interesting about this statement is not its contents or its conclusion but rather what it does not contain.  This referendum was not hatched yesterday upon an unsuspecting public but has been the subject of debate and discussion for some years -- certainly enough time for CIPA to have put together a case that reaches beyond mere statements of belief and predicted likelihood and into the domain of facts and figures.

Europe does not consist merely of the European Union.  On a generous construction, including transcontinentals (Russia, Kazakhstan, Azerbaijan, Georgia and Turkey) and Armenia (technically West Asia but economically and politically European), there are 51 countries.  These include those that have manifestly flourished outside the EU, having developed buoyant economies that enjoy close trading relations with the EU, of which Switzerland and Norway are exemplars, as well as many that are foundering or just treading water.  Some of these fall within the scope of the European Patent Organisation; others do not.

Of more interest and indeed assistance to recipients of the CIPA statement would be some sort of presentation of figures, both to enable members of the IP profession to appreciate the past and to give them a firmer basis on which to predict the outcome of the two possible future scenarios of 'Brexit' and 'Bremain'. For example, how have past patent filing figures, litigation and licensing trends etc been affected by changes in EU membership?  And what patent manpower changes have nations in Europe experienced in the wake of these shifts?  One may recall that there was fear within the Irish patent attorney profession that signing up for the European patent system in August 1992 would spell the end for the nation's small patent attorney profession, yet nearly quarter of a century later it would appear that it has actually grown.

Use of data in predicting and analysing European IP outcomes does not have a long and illustrious track record.  The nascent Office for Harmonisation in the Internal Market [OHIM, now renamed the European Union Intellectual Property Office] was flooded by more Community trade mark applications than it could possibly handle that the world discovered that its staffing predictions were inexplicably based on earlier trade mark filings made under the Madrid Agreement, data that was neither suitable nor relevant to the task.  On the patent front, statistic-based predictions that Europe's cherished competitive industrial economy would vanish behind a fast-growing wall of patent thickets were similarly misleading.

A regular theme of this weblog is that insufficient use is made of the vast quantity of publicly available data relating to intellectual property rights. This theme usually points to failures on the part of investment analysts, academics and private sector businesses, rather to the need to take cognisance of them when formulating political, economic and fiscal policy.  This is not a Big Data issue; there's not so much data out there that projecting possible outcomes on to a relatively narrow topic like patenting and innovation protection requires vast quantities of computing power and skill.

It's not too late even now for CIPA and other IP bodies to put some real figures together. They are no guarantee of what two competing visions of the future will deliver, but at least the world can see the basis on which predictions are made and then decide, along with the UK populace, how to respond to the current uncertainties in a more meaningful manner.

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