From the Desk of JMB: Heading for the Nearest Brexit? An optimistic view of IP in the UK

Following a short visit to the UK with Dr. Mike Hammer, head of our US practice, I can safely say that Her Majesty’s IP economy is not merely alive and kicking, but full of opportunities. Some may say that this is due to the implications of Brexit, while others may say that this is despite them. But there they are, nonetheless, and I will try to relate to those that as a visitor, I have identified.

  • Exchange rate fluctuations
  • Patent Box advantages
  • GB and DE and GPPH
  • Design and Trademark – separation anxiety
  • The rediscovery of the UK

Let’s start at the beginning.

One of the first things that I noticed was how much further the Shekel in my pocket went than previously. Sterling has traditionally been known as a strong, high value currency. Up until a couple of years ago, I needed nearly 9 Israeli Shekels for every pound that I spent. Today, I’ll get 2 pounds for the same money. While the Israeli currency is known to be very strong, most of this has to do with the  Pound’s fluctuating value. So, while fluctuations go both ways, right now may be just the time to register European IP rights – of all kinds – courtesy of our colleagues in the UK.

What is the UK Patent Box?  Quite simply, this is a system whereby a UK company receives relief on Corporation Tax applied to profits earned from its patented inventions.  There is quite an extensive list of European patent destinations to which this applies. A basic requirement, however, is that to benefit you must be a UK corporation. But if you or your client are thinking of setting up shop outside of your home country, this is certainly a factor that may argue in favor of setting up in the UK, specifically.

We’re always looking for shortcuts. If I can do things more quickly at lower cost, and still obtain a reasonable result, then why not? Many do not consider that it is worthwhile obtaining a European Patent, especially if their main markets are the UK and Germany; so filing patent applications on only the UK and Germany prove to be an attractive shortcut. This is due to the lower cumulative cost of patent registration in the UK and Germany, and the fact that, at least in the UK, prosecution is pretty quick. One way of making this strategy even more attractive however, is by using the Global Patent Prosecution Highway (GPPH). Because the typical process of patent registration in the UK is quite quick, once registered, it can be used as a basis for accelerated examination in the German Patent Office via the GPPH.

While there’s a fair amount of confidence that the UK patent system and that of the EU will continue to be entwined, much as they were before the advent of the EU, the same cannot be said of trademarks and registered designs. It would be logical to assume that there will be some provisions in place recognizing the validity of current EU trademarks and registered designs in the UK after Brexit (although there’s no guarantee). However, even assuming this to be true, for the first time in a generation, those outside the UK must consider UK registrations on their own merits. Some are worried by this, while others see this as an opportunity. But’s it’s definitely a source of concern both for industry and for IP professionals.

Which brings us to the last point. It’s time to rediscover the UK as an independent economic entity. True enough, no one has any idea what exit provisions will be in place or, indeed, whether any provisions will be in place at all, and how this will impact the UK’s relations with the rest of Europe, it’s economy, and myriad other areas of concern.

For sure, these are times where nothing can be relied upon to stay the same. This time last year the Brexit STAY campaign was thought to have succeeded, President Trump hadn’t even won the Republican nomination and no one thought he had a chance of becoming president. But here we are. Article 50 is about to be invoked, and Trump is president. And other political changes will certainly follow, sooner or later.

But, rest assured that the skies will not fall, and all that remains is to understand the new, constantly changing realities as best we can, and seize the new opportunities that come our way. For undoubtedly there will be many!