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Britain, your IP costs just went up

In 1975 when I was two years old “IP” meant something different from intellectual property – but that’s when the powers-that-be started saying “wouldn’t it be great if a patent covered the whole of Europe?” Over 40 years later, on the cusp of that dream becoming a reality, the Europe-wide patent has been killed by the Brexit decision.
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I don’t know if you remember the 2000 Olympic Games in Sydney? There was a devastating moment when Jane Saville was winning the 20km walk, on her way to a gold medal, and with 100 metres to go she was disqualified for lifting a foot too high. It was a tragic result that the proponents of the Unitary Patent must be empathising with right now.

The idea behind the Unitary Patent was that, once you got your application through the European Patent Office, instead of having to validate your patent in all the individual European countries you could pay one fee and the patent would be valid in all 25 signatory countries. It was a great, cost saving idea that would make it far more affordable to obtain broad patent protection throughout Europe. 

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The terms of the Unitary Patent were agreed in 2012/2013 and it needed to be ratified by 13 of the 25 countries, including the UK, France and Germany. France and Germany ratified it. Some eight other countries ratified it (that makes ten if you follow my maths). The UK legislation needed to ratify it was passed by both Houses of Parliament in March 2016 (after just 15 minutes of debate). The only thing left to do was for the UK to notify the EU that they had ratified the UPC and wait for two other countries to ratify it. In all likelihood it would have come into force early next year. 

But then there was Brexit. Like a red-carding official 19.9km into a 20km walk. And whilst it will still be possible to validate a granted European patent in the UK, the dream of a single European patent is now effectively dead. 

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Notably, nearly a month on from the “leave” decision, none of the official Unitary Patent sites include anything in their news about Brexit and its impact on the Unitary Patent. Why? They are probably too angry to trust themselves to put anything in writing. So, patenting in Europe will remain as expensive as it always has been for some time to come. 

But what about trademarks and community designs? Well, the situation there is clearer: they will definitely become more expensive for UK companies. Right now it is possible to get a Europe-wide trademark and a Europe-wide design. But the laws behind those IP rights are governed by the EU and are only available to EU members. Once the UK exits the EU, those IP rights will no longer cover the UK. That means, if you want to register your brand in the future, you’ll need to do it in both the UK and, separately, in the EU, thus increasing your costs. The same situation will apply for designs.

It will also be interesting to find out what happens to existing European community trademarks and designs when the UK leaves the EU. Will the rights in the UK become invalid? Will UK companies need to re-register all old European marks and designs in the UK? If so, that will mean a whole bunch of new filing fees UK companies will need to pay. Time will tell how all the details will pan out, but you can be confident that the end result will not be cheaper IP protection for UK businesses. The Unitary Patent has been red-carded at the last minute and sent back to the ‘70s. 

Justin Simpson is Inovia‘s founder and intellectual property attorney.

Justin Simpson, the founder of Inovia, is on a constant quest to improve the IP status quo – which led to the creation of the first “IP portal”. We talked to Simpson at the end of 2015 about how cost has hampered SMEs from filing patents and what lies ahead for the industry.

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