Intellectual property after Brexit

Women with post-it note on head to illustrate intellectual property after Brexit

Post-Brexit, incentives to encourage greater awareness of intellectual property could enhance the UK’s status as a place to innovate, says Karl Barnfather of Withers & Rogers

The prospect of leaving the EU has given UK plc an opportunity to promote its home-grown talent in a way that has not been possible in the recent past.

What we can be certain of is that EU countries will still want to sell their products and raw materials to businesses in the UK and a reciprocal arrangement will need to be struck.

Instead of waiting for negotiations to be resolved, there is an opportunity for the government to support British businesses as they carve out new, independent trading relationships in global markets and strengthen incentives to stay and innovate.

But what type of incentives would bring most benefit?

The fiscal incentives already in place to encourage innovative businesses in the UK are arguably the envy of Europe.

The Patent Box regime, which allows UK-based businesses to pay less tax on profits from their patented technologies, is widely regarded as preferential in terms of its interpretation. This is definitely a keeper, and could even be extended; a government commitment to do so would be very well timed.

The government has recently implemented changes to Patent Box which will make it harder for UK companies to benefit from the scheme where the R&D was performed by another group company in the UK.

This feature of the new Patent Box, which was required by EU law, is causing great concern to many innovative UK companies and the government should consider removing this debilitating aspect of the proposals.

The UK’s reputation for innovation in areas like computer science, advanced manufacturing and life sciences is recognised the world over. In the past, however, some opportunities to commercialise this success may have been lost due to a failure to protect intellectual property.

Unlike innovators in the US, some UK-based innovators are slow to consider intellectual property protection and their failure to file patent applications can leave rich pickings for agile competitors.

In China, the government has been incentivising home-grown innovation for some time; offering cash rewards to innovators who have patents granted at home and overseas. The UK government could consider following suit.

Many businesses that already own IP rights in the UK and Europe will be wondering how these might be affected in the future. From a patent perspective, the decision to leave the EU makes little difference – it will still be possible to obtain patent rights in the UK, via the UK Intellectual Property Office (UKIPO) and in Europe, via the European Patent Office (EPO) in the usual way.

Looking further ahead, the planned introduction of the Unitary Patent system is also expected to bring efficiencies for those seeking pan-European patent protection in the future.

Trademarks and design rights could be subject to some change in the future, but nothing too significant for most businesses.

In particular, it is unlikely that Community trade marks and design rights would cover the UK in the future but there will be a mechanism of converting existing rights to extend from the EU to the UK.

Of course going forward (after Brexit), UK industry will need to secure both UK and EU protection of its brands and designs.

Staying abreast of all changes affecting market entry in the EU is obviously a critical matter for many UK-based businesses and the government has recently published information for UK rights holders.

IP professionals with international reach and expertise are best placed to provide support in this area. The ability to take advantage of any incentives or opportunities as they arise, while maintaining a robust IP portfolio, would give UK businesses a competitive edge.

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About author

Karl Barnfather

Karl Barnfather

Karl Barnfather is the chairman of intellectual property firm Withers and Rogers

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