Heard of Brexit? The UK vows to join Europe’s Patent Titanic

IPO misses the moment

Comment Astonishment has greeted the UK’s promise to join Europe’s Unified Patent Court despite Brexit. It’s a stunning victory for the nation's powerful legal lobby. The FT euphemistically notes that “the legal system” will be around “£200m a year” richer. Meaning: you know who will be £200m richer.

The announcement was made by the UK’s intellectual property minister Baroness Neville-Rolfe (DBE CMG, PPE Oxford), the Minister of State for Energy and IP. Naturally, it was welcomed by the under-siege European Patent Office (EPO).

Somewhat disingenuously, the IPO states that “the UPC is not an EU institution”. But this isn’t the whole truth.

As Pinsent Masons’ Helen Cline pointed out here in April, “Participation in the new system is only open to EU member states. At an early stage of the negotiations, and following a decision of the Court of Justice of the EU (CJEU), the UPC Agreement was amended to exclude the participation of non-EU member states.”

Darren Smyth, partner at IP law firm EIP, called the decision “surprising”.

“Most observers assumed the UK would not commit without a clear pathway to the UK continuing to be in UPC and unitary patent after the UK leaves the EU, and no such pathway has yet been announced (and probably does not exist). This means next steps around the UPC remain as uncertain as most policies in the UK since the referendum. It is totally unclear whether or how the UK will remain in the UPC system in a post Brexit world,” Smyth says.

So what is the UPC, and how did it come about?

The European Patent Organisation was established in 1977, and now boasts 38 members. But there was no such thing as a "European Patent", and the attractiveness of a universally recognised patent in simplifying the administrative and legal necessity of protecting IP was obvious. Eventually, the EU got involved.

The UPC and the Unitary Patent were eventually created by regulation by the Council of Europe, coming into force early in 2013. This gave the EPO extensive new powers.

The Unitary Patent, and the supremacy of the new UPC courts, require participating states to legislate. France has yet to ratify and our own House of Lords only recognised it (via Statutory Instrument) here. Yet despite only starting work in 2015, the is often cited as one of the more dysfunctional examples of European “co-operation”. Although the regulation empowers local courts to handle patents, which in theory should require less central bureaucracy, the EPO has morphed into a bureaucracy of over 7,000 staff.

(And this despite Google promising to deliver machine translation to handle the other 37 languages besides the official language, English.)

EPO supremo Benoit Battistelli wanted to modernise work practices but found himself at loggerheads with unions. Staff claim they were spied upon using keylogging software, installed to identify leakers. 40 per cent went on strike in April. Battistelli fired a union boss last week.

And the EPO supremo is protected by six bodyguards, providing “close protection” at the cost of €550,000 for six months’ work.

Which sane nation could possibly see an advantage in joining this? The clue comes in the FT’s figure of £250m per year. London’s legal elite has historically profited from confusing law and uncertainty, and Brexit has become a lucrative bonus. ®

Bootnote

London’s lawyers were a prime target of the Peasant’s Revolt of 1381, with a number captured and killed in The Temple. The memory endures in one Shakespeare’s most useful piece of advice: "The first thing we do, let's kill all the lawyers." (Henry VI)


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