Category Archives: Legal policy

Ratifying the Unified Patent Court Agreement

the thin red line

The UK government announced this week that it has, at last, ratified the 2013 Agreement on a Unified Patent Court. It had announced its intention to do so in November 2016, nearly 18 months and two IP Ministers ago.

The UK IP professions are generally in favour of such ratification. But they would like to see some concrete evidence of the government’s intention to negotiate for the UK’s continuing participation in the UPC and UPCA after Brexit. Some time ago, they obtained a QC’s opinion that provided a road-map to how the UK could participate after Brexit, but it would require the agreement of other EU countries and EU institutions. So far as IP Draughts can tell, industry and other EU countries are in favour of continued UK participation.

A potential difficulty with this idea is that the UPC/UPCA is subject to the supervisory jurisdiction of the Court of Justice of the European Union (CJEU), and the UK government has declared that CJEU jurisdiction is one of its “red lines” in the negotiation of the UK’s future trading relationship with the EU. This was, no doubt, what led then-MP Douglas Carswell to put down an early-day motion in the previous Parliament, calling for it not to be ratified. Fortunately (in IP Draughts’ view) no other MP was prepared to second this motion, which consequently did not proceed.

Back in November 2016, the government’s press release was at pains to distance the UPC from the European Union. It included the following “note to editors”:

The UPC itself is not an EU institution, it is an international patent court. The judiciary appointed include UK judges.

At the time, IP Draughts thought this was as much a note to the Brexiteer wing of the Tory Party as it was to editors.

But the official government line on continued participation has always been that this will be a matter for the Brexit negotiations. The UK government has not been willing to show its hand and say in terms that it wants the UK to participate in the UPC/UPCA post-Brexit. A fortiori, it has not been willing to say whether the limited CJEU jurisdiction required for participation is so marginal, and in such a non-political arena, that it might be allowed to slip over the thin red line that has been set for other areas of trade policy.

Observers have been left to read the runes of statements coming from government, to see if they can detect at least a direction of travel, even if a policy statement is currently thought to be politically impossible. If you stare long and hard enough at the comments from ministers and civil servants, do they start to levitate?

In this context, it is interesting to look at the latest press release about ratification, and see what it says about the future. It includes the following statements:

The unique nature of the proposed court means that the UK’s future relationship with the Unified Patent Court will be subject to negotiation with European partners as we leave the EU.

Ratification of the UPCA will keep the UK at the forefront of influencing the international system.

Should we read these statements as a hint that the UK government thinks we should be in the UPCA for the long haul, and not just until the end of the transition period implementation period?




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University spin-outs: our research report

There is much to celebrate within the UK’s university spinout sector. But could it do more?

It is a timely question, given that the start of April marked the official launch of UK Research and Innovation (UKRI), an amalgamation of the seven research councils, Innovate UK and Research England. With this, UK universities’ ability to turn research into innovation is once again under the spotlight.

In many ways, spinouts are a real success story. Since the mid-1980s, UK universities have been allowed to commercialise the results of their research. Over the last 30 years, many universities have gained experience of managing their knowledge transfer activities, either in-house or through a subsidiary company, or in some cases in partnership with external companies. An important part of this activity has been setting up spinout companies and securing initial funding for their activities. Some highly-successful UK and international companies can trace their origins to UK university research.

In 2014, the commercialisation of university research received a further boost when the Research Excellence Framework (REF) introduced a requirement that university research should show “impact”.

However, just four years later, research funding is facing a crossroads. Uncertainty over Brexit has left the future of many funding streams far from secure. At the same time, the government’s industrial strategy recognises the need for UKRI to benchmark how well universities commercialise the results of their research.

The time feels right, then, for scrutiny of how the university spinouts system works, In particular, the relationship between the sources of funding for academic research, and successful commercialisation of the research. It is somewhat surprising that nobody has really done this before.

So, a few months ago, Anderson Law commissioned research into precisely this. The findings, summarised in our newly published report, mark the first real insight into how innovation from UK universities is being funded and how this leads to the creation of spinouts.

Overall, it’s a positive picture. Spinouts from UK universities are thriving; nine out of ten spinouts which have received private investment between 2011 and 2015 have survived. Among start-ups on the whole, only two in ten survive beyond their fifth year.

We also found that the number of spinouts from UK universities is on the increase and, with this, so is the amount of investment into them from private investors. But we believe more should be done.

As UKRI begins its work, we expect that the commercialisation of research from UK universities will be a priority. We also think the government has a role to play too, giving Universities a clear policy steer on their role as innovators, as part of a national strategy for the commercialisation of research from UK universities.

A better-defined strategy for commercialising university research will also go a long way towards demonstrating the value of universities to the UK, and the economic and societal impact they can have. But there is a real need to get this right, now. The uncertainty over Brexit adds extra urgency. If the UK is to remain competitive on the international stage over the next decade, it is essential we understand what we are good at, where we are helping ideas develop into successful entities, and back those systems.

If we do not, the ultimate price could be a UK struggling to produce world-beating start-ups and SMEs ten years from now – which would have real consequences for our economic prospects.

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Vacancies for IP Law Committee of Law Society

The Law Society of England and Wales is currently advertising vacancies for a number of its technical committees, including the Intellectual Property Law Committee (IPLC – IP Draughts is the current chairman).

The IPLC’s main role is to make submissions to government and other bodies on IP issues as they arise. Currently, as you might expect, Brexit is dominating our discussions. Recent activities have included:

  • active involvement in the lobbying over the UPC, which led to David Cameron securing the life science and chemistry part of the central division of the court for the UK
  • over a decade or more, initiating a public debate on the IP threats provisions of UK IP laws, resulting in a Law Commission report, a Bill, and eventually the Intellectual Property (Unjustified Threats) Act 2017. We were closely involved in the progress of the Bill and gave oral evidence to a House of Lords committee about it.
  • coordinating a note on Brexit and IP that the UK IP professions submitted to the IP minister just before Christmas last year

Next week,IP Draughts is due to meet the new IP Minister, along with representatives of other IP bodies, to discuss our priorities for Brexit.

The committee has a mixture of people in private practice and in-house, in London and elsewhere, and across different industry sectors and IP types, from technical patent specialists to entertainment and fashion industry practitioners. We are looking for good people with any relevant background.

Details on how to apply are set out in the documents to be found at the link above.

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Brexit and IP: Prime Minister’s speech

What will happen to IP laws on Brexit? This subject has been the subject of speculation since the UK voters decided, in a referendum, that the UK should leave the EU. Last December, IP Draughts led the preparation of a short paper from the UK IP professions to government on this subject. More recently, the IP professions have urged the UK IP minister to ensure that the UK government ratifies the United Patent Court Agreement before the EU summit on 23 March 2018.

Readers in the UK who follow the news will have heard that Theresa May, the Prime Minister, delivered a speech this week in which she gave more detail about the UK’s negotiating objectives in relation to Brexit.

The only direct mention of IP came in the following paragraph from the speech:

We will want our agreement to cover civil judicial cooperation, where the EU has already shown that it can reach agreement with non-member states, such as through the Lugano Convention, although we would want a broader agreement that reflects our unique starting point. And our agreement will also need to cover company law and intellectual property, to provide further legal certainty and coherence.

Some further clues on the government’s approach were to be found in her discussion of participating in regulatory agencies after Brexit:

We will also want to explore with the EU, the terms on which the UK could remain part of EU agencies such as those that are critical for the chemicals, medicines and aerospace industries: the European Medicines Agency, the European Chemicals Agency, and the European Aviation Safety Agency. We would, of course, accept that this would mean abiding by the rules of those agencies and making an appropriate financial contribution. I want to explain what I believe the benefits of this approach could be, both for us and the EU.

First, associate membership of these agencies is the only way to meet our objective of ensuring that these products only need to undergo one series of approvals, in one country.

Second, these agencies have a critical role in setting and enforcing relevant rules. And if we were able to negotiate associate membership we would be able to ensure that we could continue to provide our technical expertise.

Third, associate membership could permit UK firms to resolve certain challenges related to the agencies through UK courts rather than the ECJ. For example, in the case of Switzerland, associate membership of the European Aviation Safety Agency means that airworthiness certifications are granted by its own aviation authority, and disputes are resolved through its courts. Without its membership, Swiss airlines would need to gain their certifications through another member state or through the Agency, and any dispute would need to be resolved through the ECJ.

Fourth it would bring other benefits too. For example, membership of the European Medicines Agency would mean investment in new innovative medicines continuing in the UK, and it would mean these medicines getting to patients faster as firms prioritise larger markets when they start the lengthy process of seeking authorisations. But it would also be good for the EU because the UK regulator assesses more new medicines than any other member state. And the EU would continue to access the expertise of the UK’s world-leading universities. And, of course, Parliament would remain ultimately sovereign. It could decide not to accept these rules, but with consequences for our membership of the relevant agency and linked market access rights.

Some might think that participating in these bodies without being subject to the jurisdiction of the CJEU is an unrealistic negotiating position, but time will tell.

And finally, the speech gives some clues on the government’s position in relation to the digital economy:

On digital, the UK will not be part of the EU’s Digital Single Market, which will continue to develop after our withdrawal from the EU. This is a fast evolving, innovative sector, in which the UK is a world leader. So it will be particularly important to have domestic flexibility, to ensure the regulatory environment can always respond nimbly and ambitiously to new developments.

Just as the EU’s recently-published draft withdrawal agreement includes, in IP Draughts’ view, some one-sided provisions on IP-related issues, the above extracts indicate a preferred UK position rather than a final outcome.

At last, the opening salvos have been fired. To paraphrase another Prime Minister, this is not the end of the negotiations. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.



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