Monday, 28 November 2016

Patents, Brexit and a first firm indication of British policy

Earlier today the UK government announced its intention to prepare to ratify the Unified Patent Court Agreement (UPCA). The UPCA provides for the machinery whereby  European Union-backed Unitary Patents will be litigated.

The UK government statement reads as follows:
This is part of the process needed to realise the Unitary Patent and Unified Patent Court (UPCA). Under the new regime, businesses will be able to protect and enforce their patent rights across Europe [notwithstanding Brexit] in a more streamlined way - with a single patent and through a single patent court.

The court will make it easier for British businesses to protect their ideas and inventions from being illegally copied by companies in other countries [given the scope of the UPCA, this refers to most of the countries in Europe, whose businesses will also find it easier to protect against unlawful use of their inventions in the UK].

UK Minister of State for Intellectual Property, Baroness Neville Rolfe said:
The new system will provide an option for businesses that need to protect their inventions across Europe. The UK has been working with partners in Europe ['partners in Europe' does not read like a phrase that points to the so-called 'Hard Brexit' option] to develop this option.

As the Prime Minister has said, for as long as we are members of the EU, the UK will continue to play a full and active role. We will seek the best deal possible as we negotiate a new agreement with the European Union. We want that deal to reflect the kind of mature, cooperative relationship that close friends and allies enjoy. We want it to involve free trade, in goods and services. We want it to give British companies the maximum freedom to trade with and operate in the Single Market - and let European businesses do the same in the UK [this suggests that the reason for committing to the UPCA is not the creation of an opportunity to jump out of it two years after triggering Article 50 of the Lisbon Treaty].

But the decision to proceed with ratification should not be seen as pre-empting the UK’s objectives or position in the forthcoming negotiations with the EU [in other words, the achievement of Brexit is still the objective and, when it comes to negotiating its terms, everything remains on the table].
Following the announcement today, the UK will continue with preparations for ratification over the coming months. It will be working with the Preparatory Committee to bring the Unified Patent Court (UPC) into operation as soon as possible.
The interesting thing about this news is not its content -- though many reputable and well informed commentators would have bet against it.  Rather, it is the fact that the UK's decision on the UPCA -- a key indicator as to where the government stands on Brexit and the continuation of industrial and commercial relations with its closest neighbours -- has been more or less ignored by the mainstream media. Even now, while specialist legal and IP channels have spread the word, at the time of posting this article, the only national publication that has picked up this development and reported it online is the Financial Times, here

We would imagine that this important expression of intent on the part of the UK government will be reflected not only in other areas of intellectual property such as trade marks, designs and copyright, but further afield in areas like data protection, trade secrecy, competition and antitrust policy and beyond. This in turn should have a profound impact on investors' decisions and their interpretation of public data, big and small. Why then have the media, so quick to pontificate on Brexit and all its ramifications in general terms, have been so slow to pick up on today's news? Is this just another example of intellectual property being ignored because its importance cannot be easily grasped?

You can read the text of the UPCA here.

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