Saturday, 16 January 2016

UK decides on Brexit from EPC and EU

The response to consultation on amendment of UK law to comply with the UPC and UP has been published.

It appears that the UK intend, at least for a while, to have a different scope of infringement for national patents than for European patents.

This indicates that the provisions of Article 64 EPC (requiring equal scope for European and national patents) are to be ignored.

It is to be hoped that this breach of treaty obligations either:-
  • does not happen; or
  • is remedied as soon as possible,
since it would be inconvenient if the UK left the EPC.

The report also indicates that an "Order in Council" will apply the Unitary Patent and the UPC to the Isle of Man. This is interesting and raises the question, "Since when was the Isle of Man part of the EU"?

The UK appears set to raise many legal problems if they seek to implement in this way. Have they taken informed legal advice?

More issues may become apparent when the secondary legislation is published.

UPDATE 20.1.2016

The secondary legislation is here.

The explanatory notes to the statutory instrument indicate that the reason for disapplying Article 27k for national patents was that “The IT and telecoms sectors have expressed strong concern at the uncertainty present in this new exception and it is  not known how many patents could be affected”.

To get a rough idea of numbers I looked  to espacenet.  In 2014, in International class G06 (which covers, inter alia, computers), 1840  British patent applications were published (A or B) publications. Of these 618 had a British applicant, and the rest from abroad, IBM alone accounting for 455. Roughly, in this class, there are two patents filed by non UK applicants for every application filed by a UK applicant. It seems reasonable to assume that in this field foreign patentees holding UK national patents predominate by at least 2:1.

For telecoms class H04, similar numbers are 1463 published, 513 British, 111 IBM: still a preponderance of foreign applicants, but not quite so large.

Applying different standards to European and UK national patents would leave UK software developers free of the patent yoke with respect to European patents, so far as the acts or uses of Article 27(k) of the Agreement on a Unified Patent Court are concerned: but national patents would still be effective against such acts or uses.   This would mean that British innovators would be inhibited in their home market by a preponderance of foreign owned British patents against them, inhibiting their freedom to manufacture and sell in their home market: whereas elsewhere in Europe their competitors would be free to operate in their home market.

This will truly be a test of the effect of patents - will being in a country with patents covering the acts or uses of Article 27(k) spur innovation (to get round those patents) or hobble innovators?

Was it the UK IT industry that asked for this? If so, why don’t they want to manufacture in the UK?

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