In 2018, Boris Johnson famously declared “F*** business”. Many will say that is exactly what his government did on Thursday when it confirmed to IAM that the UK will not be a party to the Unified Patent Court system.
“Participating in a court that applies EU law and bound by the CJEU is inconsistent with our aims of becoming an independent, self-governing nation,” a spokesperson told us.
The decision will have ramifications far beyond the UK.
With Germany’s Constitutional Court still to decide on the legality of German accession – and with Spain, Poland and Croatia having decided to remain outside the system – the UPC becoming reality was already in serious doubt.
The loss of a major G8 economy, and a common law patent power to boot, will only heighten concerns that the project is in serious trouble. Many will now say it is time to scrap it – or at least to have a serious rethink. But it would be a shame if their voices prevailed.
A No from the German court would clearly necessitate a starting over that may be too much for many to bear. However, in the case of a Yes, the EU24 should not allow the British to derail something that has been worked on for close to two decades and which, even without the UK, has every opportunity to be a pivotal global patent venue.
Throw in the EPO and the EUIPO, and Europe can still become the world’s dominant IP force. In the age of 5G and the Fourth Industrial Revolution, when competition between economic blocs will only intensify, that is not something to give up lightly.
But back to the UK. To be fair, Thursday’s revelation should not have come as a surprise to anyone. Everything the British government has said since Johnson became Prime Minister, especially after his election victory last December, has strongly indicated that the UK could never be a part of the UPC post-Brexit.
The decision, though, was not made based on anything that UK patent owners, their legal advisers or the wider business community had been saying. The very opposite, in fact. And that matters - not just for the niche world of IP, but more generally.
In deciding what he has, Johnson has made it abundantly clear that for him and the government he leads sovereignty overrides all other considerations. If that makes it more expensive, complex and time-consuming for British entities to secure and protect patents in Europe, so be it.
And be in no doubt, what applies to patents will apply in many other areas, too. Taking back control is now the name of the UK’s game, whatever the financial and economic cost.
For British patent owners and their advisers, there may now be further issues to worry about. Take the UK’s membership of the European Patent Convention, for example. That has always been seen as rock solid and non-negotiable. Well, maybe it isn’t anymore.
If sovereignty and control are now the guiding lights of policy, does an increasingly nativist UK really want foreign patent examiners deciding what inventions qualify for protection on British soil? And what is the EPO’s Enlarged Board of Appeal if it is not a de facto foreign court handing down judgments that must be respected and enforced in the UK?
More seriously, should membership of the EPC not be compatible with securing a trade deal with the US because of, say, the grace period, perhaps it would easiest for the UK to withdraw. When IP policy is made without reference to the interests of IP owners, it’s the kind of thing that could happen.
That’s not all. One thing that has been quite noticeable about the Johnson government since it came to power is its interest in Silicon Valley and the tech giants who reside there. Tempting them to set up in the UK is an undoubted post-Brexit aim. Not so much Singapore-on-Thames, but Northern California-by-the-North Sea.
To that end, we have already seen the government say it will not implement the controversial EU Copyright Directive, whose Article 13 has been strongly opposed by the likes of Google. This despite strong criticism from blue riband British success stories, such as the recording industry.
Meanwhile, Johnson himself has talked of the UK developing its own data protection regime – something that would enable the titans of Silicon Valley to lobby for a system that more suits their needs than one centred on the GDPR.
It’s not hard to envisage that what applies to copyright and data may also apply to patents.
Big Tech has made its concerns about the Unified Patent Court and injunctive relief very clear. It has also been active on the same subject at the national level in Europe, particularly in Germany. It would suit many Valley heavyweights if there were a large European jurisdiction in which they did not have to worry about the issue so much.
Patents were once seen as being quite difficult to enforce in the UK. Over recent years, though, the country’s courts have become much friendlier to patentees, particularly concerning FRAND and SEPs. It’s very possible that the eagerly anticipated Supreme Court Unwired Planet and Conversant decision might seal that reputation.
It’s also clear that if the court’s justices do decide to uphold the lower courts’ judgments in both cases, it’s not only Huawei and ZTE that will be unhappy. Plenty in Silicon Valley will also be concerned.
Countries, of course, can legislate to overturn the consequences of court decisions. They can also look again at basic issues, such as patentability – especially if they are not member states of the EPC. Ones looking to attract significant Big Tech investment might decide that it’s worth doing, regardless of who may be hurt.
Such doomsday scenarios might seem far-fetched. But a golden rule of Brexit so far has been to imagine the worst possible outcome and then to watch it play out. Why should that stop now? Especially when it is absolutely clear that the last thing the UK government is interested in when deciding UK patent policy are the views of the UK patent community.
This article first appeared in IAM. For further information please visit https://www.iam-media.com/corporate/subscribe