UK Politics

UK government presses on with EU patent scheme despite Brexit

Lightbulbs Image copyright Science Photo Library
Image caption An EU-wide scheme for patenting people's inventions could be under threat from Brexit

Barely an hour goes by at Westminster without someone parroting the phrases "hard Brexit" or "soft Brexit".

They are fashionable political buzz phrases which try to describe what leaving the European Union might actually look like, in big, broadbrush terms.

But, frankly, they mean very little.

So, let's take a look at one specific area where there are huge questions being asked about the future - inventions.

When you chance upon your winning idea to become a squillionaire, that garden tool that will revolutionise horticulture worldwide, how do you stop it being nicked by someone down the road?

The answer: a patent.

For the last 40 years, there have been attempts to dream up an EU-wide system for coordinating patents.

After this elephantine gestation period, with the UK as a leading advocate of the idea, a deal is now imminent.

"It is extremely important for the British economy. We are no longer a mass manufacturing economy. We have specialist manufacturing. But we are moving towards a position where we are a knowledge-based economy; where our innovation and our inventiveness, something we are famous for down the centuries, is to the fore again," Gordon Harris, the head of intellectual property at the law firm Gowling WLG, told BBC Radio 5 live.

Image copyright Gordon Harris
Image caption Lawyers like Gordon Harris want the UK to remain part of an EU-wide patent scheme

"If we are to remain attractive for external investment, then participating in this unitary patent system would be highly beneficial, otherwise people have to have two bites of the cherry, they have to get one patent to cover most of the European Union and another for the United Kingdom. That could possibly influence investment decisions, as to whether people prefer to invest their money here or on mainland Europe."

So, what is the government doing?

Curiously, it is pressing ahead with ratifying the agreement that is needed to get this new European-wide system off the ground.

The UK's agreement is essential for the whole thing to get going, because without a British signature, under the current rules, the whole thing is a dead duck.

In a written statement, the Minister for Intellectual Property, Baroness Neville Rolfe said: "The new system will provide an option for businesses that need to protect their inventions across Europe. The UK has been working with partners in Europe to develop this option.

"As the prime minister has said, for as long as we are members of the EU, the UK will continue to play a full and active role."

The government, then, thinks this is a good idea.

But, it is also committed to Brexit.

What will happen, in this specific instance, when we do leave?

Put simply, we do not know: I asked the minister for an interview, but she decided she had better things to do.

Image copyright AFP/Getty
Image caption Ex-UKIP leader Diane James said the EU-wide scheme would dilute the UK's sovereignty

Former UKIP leader and now independent MEP Diane James suspects ministers want to quietly sign the UK up in the hope that after Brexit the country can remain part of the patent agreement.

"One has to ask the question why even go down this route, only to find yourself having to negotiate to come out? Why have we joined up in the first place, effectively giving over control to other European Union member states?"

Would staying part of the deal be an option once the UK has left the European Union?

Some lawyers think the answer to that is yes.

But here is the crux.

If you have got a system where lots of countries are signed up to an agreement to protect inventions, you have to have a system that can legally enforce it all.

Ultimately, that is the European Court of Justice, the EU institution that ensures the consistent application of and respect for European law.

'Minor concession'

For many Brexit campaigners, that can't be allowed to happen.

"It dilutes our sovereignty. It also dilutes and takes away the legal control that the UK currently has.

"We will find ourselves in a situation where other member states have a say in whether a patent is granted, whether a patent is upheld and if they want to challenge that in any way it will go to the European court rather than our own legal system based in London," Diane James said.

Hang on a minute, intellectual property lawyer Gordon Harris responded:

"Most countries cede some degree of sovereignty, whether through Nato or the United Nations. This would be a minor concession.

"It is not a huge wedge being driven into our legal system. It is a tiny corner, but it would be good for British business so it is a concession worth making."

The government clearly likes the idea of the European patent system, but in a statement said the decision to push ahead with it now "should not be seen as pre-empting the UK's objectives or position in the forthcoming negotiations with the EU".

And so in the meantime, uncertainty. This, then, is one of perhaps hundreds of examples of the kind of nitty gritty work that's going to go on in 2017 and beyond.

If 2016 was about the big picture, in the EU or out, the coming years will be about the specifics.

And lots of them.

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