By Barney Dixon
Intellectual property is one of those areas ministers love to brag about. They enjoy imagining an economy in which plucky young British inventors come up with a successful new idea, patent it, and show the world what an innovative country looks like. It's the sexier end of economic speech-writing.
But the reality for inventors and the lawyers who protect them is current very bleak. They have been left for months with no certainty, no government strategy and seemingly no minister caring about what is happening to them. Theresa May's government is silent on the subject. The advance guard of British commercial ingenuity is being hung out to dry.
For businesses that rely on innovation, like the UK’s pharmaceutical industry, intellectual property—and more specifically, patents—are a crucial driving force in fuelling research and development.
Patents allow businesses to make a return on their research investments by being granted a monopoly on their inventions and being able to licence them.
But a year into Article 50 and the UK has remained quiet on its patent policy, save for a few hushed conversations behind closed doors, leaving many patent lawyers - whose livelihoods rest on working across the EU - in jeopardy.
Nestled in the middle of this mess is the concept of a European unified patent court and a unitary patent. This new European system is designed to make it easy for people to secure a patent and have it apply across the continent. It is expected to be a big financial winner for the UK.
There was just one problem: the court has a strong connection to the European Court of Justice (ECJ). That seemed to rule out British involvement, but strangely enough May decided to stay in the new system, just a month after announcing her red line on leaving thr ECJ's jurisdiction.
It was a move which confused observers.
May's intention was presumably to push through the patent legislation before the UK left the EU, meaning it would be bundled up in the withdrawal bill and treated as part of our existing EU arrangements. This would have reassured innovators and business owners and secured the UK’s influence in a scheme that services a large part of domestic industry.
At first, everything seemed to go to plan. Secondary legislation was submitted to parliament to recognise the new system in June 2017. But then something unpredictable threw a spanner in the works. A constitutional case in Germany suggested that the new patent arrangements were incompatible with EU law and brought the whole thing to a standstill. It's now unlikely to all be wrapped up by the time the UK leaves the EU in March 2019.
Suddenly everything is up in the air. The UK has dropped itself into a contradictory position in which it has seemingly accepted the rule of the ECJ to govern patents, despite May’s previous assertions that the country would be completely removed from its jurisdiction. But now other parts of Europe have held up the project anyway, meaning that May's sneaky attempt to get the new patent regime sorted before Brexit may not work.
The prime minister is left with an agreement that is unlikely to be ratified before the UK leaves the EU and, were it to gain widespread attention, the potential breakdown of her promise to hard Brexiters to rip the UK from the jurisdiction of the ECJ. It's a mess.
How might the UK rectify this situation? It is unclear because there does not seem to be any consistent thinking on it in government. During May's time as Tory leader, there have already been three intellectual property ministers, only one of which seemed to have any interest in the subject.
Baroness Neville-Rolfe held the role for two and a half years before departing in December 2016. She was well respected in the intellectual property community, both because of her enthusiasm and interest in the role and the continuity she brought from her relatively long tenure. Spectators in the industry suggested that this had encouraged much better policy making than before.
She was replaced by Boris Johnson’s brother, Jo, who was also the minister of state for universities, science, research and innovation. During his tenure, Johnson barely said a word on many of the pressing issues facing the intellectual property industry in the face of Brexit, and seemingly focused mainly on his role as minister for universities.
He lasted only a year in the role before he was replaced, two months ago, in January by Sam Gyimah, who has yet to publicly comment on the challenges of intellectual property law at all.
There seems little hope for the continuity and certainty that those in the intellectual property industry crave. As the dishevelled Tory-DUP agreement struggles to nail down its Brexit strategy, intellectual property seems destined to be left by the wayside.
For many intellectual property attorneys, who have been hit by blow after blow as a result of the Brexit vote, there isn’t yet a light at the end of the tunnel, and, for trademark attorneys in particular, the continuation of their rights to practice in the EU is a question that still hasn’t been answered. Many attorneys will have to realign their practices and drop clients from across the channel that they’ve worked with for years.
Innovative businesses will be forced to look internationally for incentives in research and development, and pay double to ensure their inventions are protected both in the EU and the UK.
At the end of all this, the UK as a whole will be the one to suffer from the seeming lack of interest in intellectual property from the government. As we come closer to the cliff edge that is May’s Brexit, it is almost certain that these finer details of the economy will continue to be overlooked, much to the detriment of the UK.
Barney Dixon is a journalist writing about intellectual property and technology. Find him on Twitter at @IP_Barney.
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