What will the next UK government do about IP?

This time next week, the UK is likely to have another Conservative government. None of the party leaders seems to be greatly inspiring the voters. The Brexit issue is still central. The mood of the electorate appears to be one of resignation to the inevitability of Britain leaving the EU, with little appetite for reversing the decision, and a vague hope that the Prime Minister can do a good deal, as she has been claiming.

Like many, IP Draughts was surprised to read that the Secretary of State for Exiting the European Union, David Davis, had claimed earlier this week that “over a hundred pages of detail” had been published on the UK’s negotiating position for Brexit. IP Draughts had assumed that this meant that the government had moved from airy principles to a slightly more detailed position. He had been planning to comment on the absurdity of thinking that thousands of detailed Brexit issues could be reduced to 100 pages.

But, listening to the radio broadcast just now, he realises he was naive. The Secretary of State was simply adding up the page numbers of several statements of principle made at different times, including the White Paper, notification letter to the European Union, and so on. The Secretary of State’s claim is even more vacuous than IP Daughts had first thought.

The IP Law Committee of the Law Society of England and Wales, currently chaired by IP Draughts, is in the course of preparing a table that summarises the main IP-related Brexit issues and our recommendations for how to deal with them. So far, the table has reached 24 pages of A4 paper, and over 6,000 words of text. This is a short-ish note of headline issues rather than a detailed briefing paper.

There are hundreds, if not thousands, of other trade-related, Brexit themes of similar significance to IP, including (to take a few that come immediately to mind):

  • mutual recognition of judgments
  • the Euratom treaty and future cooperation in atomic research
  • the regulation of medicines
  • VAT laws
  • data protection

Assuming that UK civil servants are preparing detailed briefing notes on each of these topics (plus short summaries for ministers), IP Draughts estimates that there will be hundred of thousands of pages of detail going in the direction of the Department for Exiting the EU.

IP Draughts fears that, in this blizzard of paper and electronic documents, IP issues will be relegated to something like schedule 27 to an overall briefing note, and will not be given the attention it deserves. He is also concerned that there are cross-cutting themes, affecting IP and other subjects, whose importance may be missed.

Many years ago, the management guru, Charles Handy, referred to the “silos” of expertise within the UK Civil Service. IP Draughts wonders whether these silos are well-placed to identify and suggest solutions for dealing with cross-cutting themes such as CJEU jurisdiction, which comes up in many of the trade issues.

At some point, the UK government is going to have to address the detailed issues. At present, we have no visibility on the process for developing policy on these issues, or whether it will be possible for external organisations such as the Law Society to influence the policy.

Usually, when new laws are made, there is a formal consultation process. In this context, consultation implies not just being willing to receive papers, but also engaging in a conversation. Usually, the IPO consults on every small change to IP laws. If a similar process is envisaged for Brexit-related changes to IP laws, it will be a major exercise. It remains very unclear how this is going to be managed, given the timescale of Brexit and the huge number of issues that arise.

At present, civil servants are in pre-election purdah. But it seems like they have been in purdah since long before the election, and there are no signs of any change after the election. We are told to keep sending in our submissions, but we get no feedback and no clues as to whether we are making the right underlying assumptions as to the direction of the government’s travel.

At some point, surely the dam must break and a flow of policy dialogue will resume? Or are we just supposed to sit and wait until the Prime Minister tells us what deal she (assuming she continues to be Prime Minister) has struck on the EU trade mark and thousands of other issues?

These are strange times.

 

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