Since Boris Johnson was made Prime Minister earlier this week, already many things might seem to have irrevocably changed. And yet, hot summer weather has made the headlines, the Prime Minister’s Brexit policy has been dismissed as “unacceptable” by the EU, and Jo Johnson is back in his old job as Minister of State for Universities, Science, Research and Innovation. So, perhaps plus ça change…
Will Jo Johnson be the Minister responsible for IP?
Under his previous tenure in the role, Jo Johnson had overseen the passage of the Intellectual Property (Unjustified Threats) Act 2017. This legislation was developed by the Law Commissions of Scotland and England & Wales to restrain threats of litigation against customers and vendors and encourage rights holders instead to communicate directly with the source of the infringement such as a manufacturer or importer.
Sam Gymiah followed Jo Johnson into the role – but both resigned from the government in November 2018 in protest of Theresa May’s Brexit negotiations, with Jo Johnson emphatically describing the options available as “vassalage or chaos”. Since then, Chris Skidmore, a remain-supporter but a “government loyalist”, was the Minister for IP, and Jo Johnson has been publicly supporting holding a second Brexit referendum, until Boris Johnson’s decision to appoint his younger brother back into the role.
So, what is likely to be waiting in Jo Johnson’s in-tray, should be become Minister for IP?
Since 2016, Brexit has dominated government policy and that hardly seems likely to go away any time soon. There are any number of issues yet to be ironed out and to date – despite the enormous value of intangible and creative assets to the UK economy – IP has been put on the back burner. The government’s white paper, “The future relationship between the United Kingdom and the European Union”, more commonly known as Theresa May’s “Chequers plan”, refers just a handful of times to intellectual property in the context of trade agreements. The paper devotes four measly paragraphs specifically to intellectual property with no concrete proposals. Rather, it ruminates, “[a]rrangements on future cooperation on IP would provide important protections for right holders, giving them a confident and secure basis from which to operate in and between the UK and the EU.”
In the last year, coinciding with the anticipated Brexit date of 29 March, Chris Skidmore oversaw a raft a statutory instruments providing rather more specific detail or the consequences of a no-deal Brexit. For example, providing that EU trade marks will be treated as [UK] registered trade marks following exit day in the Trade Marks (Amendment etc.) (EU Exit) Regulations 2019/269.
Unitary Patent Court
The UK’s participation in the UPC has been in question since the Brexit vote. The UPC may not be an EU institution, but participation is only open to EU Member States. Despite this, the UK has pressed on with the formalities required for the court to be established – including the ratification of the UPC Agreement last year by then Foreign Secretary, Boris Johnson. Ongoing proceedings in the German constitutional court are delaying the court from getting fully ratified and up and running. It seems unlikely that they will be concluded in time for the new exit day of 31 October, so the UK’s involvement remains uncertain.
Other IP priorities
Jo Johnson’s most recent predecessor, Chris Skidmore, had his sights on affecting the culture around intellectual property infringement. The aim was to make infringement by individual consumers “socially unacceptable”. According to Skidmore speaking in Parliament earlier this year, research has been commissioned into consumer attitudes to counterfeited products. In due course, we will see the results of this work and whether it can be translated into policy or social change.
What would be next for Jo Johnson?
The brief is wide. Being the Minister of State at the Department for Business, Energy and Industrial Strategy and Department for Education means that Jo Johnson has a lot on his plate. Whether IP is added to this remit remains to be seen.
For him, universities have tended to taken priority as his main parliamentary interest. He is mainly linked in the public eye with the Higher Education and Research Act 2017 and corresponding overhaul of research funding through UK Research and Innovation. Similarly, a good deal of the publicity following his reappointment has focused on his universities brief.
(Similarly, much of Chris Skidmore’s parliamentary time was devoted to energy and sustainability).
Jo Johnson would likely be wrangling over EU-funded science and innovation, but by participating in Boris Johnson’s cabinet he is likely to be swept by his new colleagues towards a no-deal Brexit.
Perhaps the ministerial brief is too wide, with the significance of intellectual property to our economy and to UK-EU relations being generally overlooked until it is too late. For instance, not so long ago, the role was “Minister of State for Energy and Intellectual Property”, held by Baroness Neville-Rolfe, with a narrower brief.
The breadth of the responsibilities that go along with intellectual property, combined with the handing over of the role like a hot potato over the last couple of years, has led to a fragmented approach to domestic intellectual property policy. It seems that this has inhibited the government from taking forward much of the Intellectual Property Office’s continued output of research. This may come back to haunt the government in the coming years, particularly in the event of a no-deal Brexit taking a toll on the economy.
Correction: A previous version of the article had prematurely confirmed that Jo Johnson had in fact been named as Minister for IP. This is not yet the case.