So, at last the UK Prime Minister has spoken. In a speech today, she set out her 12-point plan for Brexit. The point that seems most relevant to IP commercialisation is the tenth:
10. The best place for science and innovation
A Global Britain must also be a country that looks to the future. That means being one of the best places in the world for science and innovation.
One of our great strengths as a nation is the breadth and depth of our academic and scientific communities, backed up by some of the world’s best universities. And we have a proud history of leading and supporting cutting-edge research and innovation.
So we will also welcome agreement to continue to collaborate with our European partners on major science, research, and technology initiatives.
From space exploration to clean energy to medical technologies, Britain will remain at the forefront of collective endeavours to better understand, and make better, the world in which we live.
The UK’s Minister of State for Universities, Science, Research and Innovation, Jo Johnson MP, has recently added the job of IP Minister to his portfolio, which is a recognition that these subjects are connected. IP Draughts hopes that the above reference to collaborating with European partners on technology initiatives will be interpreted, within government, as including collaboration on European IP initiatives such as the Unitary Patent.
There are some signs that it might be. The government has announced its intention to ratify the Unified Patent Convention. That announcement was accompanied by the following, careful wording:
We will seek the best deal possible as we negotiate a new agreement with the European Union. We want that deal to reflect the kind of mature, cooperative relationship that close friends and allies enjoy. We want it to involve free trade, in goods and services. We want it to give British companies the maximum freedom to trade with and operate in the Single Market – and let European businesses do the same in the UK.
But the decision to proceed with ratification should not be seen as pre-empting the UK’s objectives or position in the forthcoming negotiations with the EU.
A possible stumbling block to UK participation in the UPC post-Brexit is the requirement for participants to recognise the supervisory jurisdiction of the Court of Justice of the European Union (CJEU). This potentially runs up against the Prime Minister’s determination, albeit focused on other areas, for the UK to cease to be subject to the CJEU. As she put in point 2 of her speech today:
2. Control of our own laws
That means taking control of our own affairs, as those who voted in their millions to leave the European Union demanded we must.
So we will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain.
Leaving the European Union will mean that our laws will be made in Westminster, Edinburgh, Cardiff and Belfast. And those laws will be interpreted by judges not in Luxembourg but in courts across this country.
Because we will not have truly left the European Union if we are not in control of our own laws.
Thus, there appears to be a conflict between the Prime Minister’s desire to collaborate with EU countries on science and technology (assuming this extends to the legal protection of science and technology through IP rights such as the UPC) and her desire to escape the jurisdiction of the CJEU.
Some commenters have assumed the worst and concluded that this makes post-Brexit, UK participation in the UPC (and, for that matter, participation in pan-EU IP rights such as trade marks) impossible.
There is, however, a potential way through this tricky issue, if there is the political will to pursue it. Our former IP Minister, the astute Baroness Neville-Rolfe, caused the following statement to be added at the end of the announcement about ratification of the UPC:
Notes to editors
The UPC itself is not an EU institution, it is an international patent court. The judiciary appointed include UK judges.
This point was repeated by the new IP Minister when he gave evidence to the House of Commons’ Science and Technology Committee last week. In IP Draughts’ view, it is a coded signal to the Brexiteer faction within government, and it is reasonable to extrapolate from this slightly obscure statement as follows:
- The political objective of “taking back control” by removing the jurisdiction of the CJEU is concerned with how domestic UK laws are made and interpreted, as distinct from cooperation on international trade.
- The UPC is an add-on to the European Patent Convention, which is separate from the European Union. It forms part of the UK’s arrangements for cooperation on international trade.
- The main courts of the UPC are being established separately from the CJEU and will include British judges (and indeed a retired British judge is leading the recruitment process).
- Yes, the UPC will involve a supervisory CJEU jurisdiction, but this should be viewed as a hybrid arrangement concerned with international trade and not part of EU membership. In other areas of international trade, the UK accepts the jurisdiction of international bodies (eg arbitration of WTO disputes) and this is not considered to damage national sovereignty.
There are some technical weaknesses in these points (which IP Draughts prefers not to dwell on, as it will only muddy the case), but the broad thrust is a reasonably strong argument.
Ultimately, whether the argument is accepted by the government and argued for strongly will depend not on its detailed, technical merits but whether it is acceptable to enough Tory MPs and right-wing newspapers. There are plenty of other areas of international trade where similar arguments are being raised. For example, representatives of the Law Society and English Bar made similar points about the mutual recognition of court judgments in the UK and EU, post-Brexit, when they gave oral evidence to the House of Lords’ Justice Sub-Committee recently.
IP Draughts hopes that, in Brexit negotiations, the international trade card, and the protecting science and technology card, will be used to ensure that there is continuing international cooperation on IP laws, despite the faint spectre of the CJEU lurking in the background.