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Here’s what intellectual property lawyers say you need to know post-Brexit

There are all sorts of bits and bobs that need to be ironed out post-Brexit (understatement?). One of those is what happens to your intellectual property once we’re on the outside looking in.

So we caught up with Peter Finnie, patent and trademark attorney at Gill Jennings & Every, to find out what might happen next with your company jewels.

“IP is one of the many things we’ll have to untangle,” Finnie says. “It’s property, so essentially like getting a divorce and trying to get half of the car.

“The worry is that there will be less R&D and innovation happening in the UK because companies don’t like the uncertainty and then investment will dry up.

“There’s a pretty direct correlation between the number of patents filed and the health of the economy.”

No EU community patent law

“There is already a process for registering a patent across Europe that is then translated into a bundle of national patents and that still stands. It’s not an EU law,” Finnie says.

That’s the European Patent Convention, if you’re interested, and it still stands post-Brexit.

But he explains that the EU has been working on a new unitary patent law, along with a court system to adjudicate on relevant cases. This is scheduled to come in in 2017 but would have needed to be ratified by the UK to come into law here.

“You can’t be a member of this if you aren’t in the EU,” Finnie said. However, he’s not even certain this will continue without UK participation.

“The UK sees the second biggest number of filings after Germany. It’d be an expensive thing to put into place, given it wouldn’t cover the UK.”

The legal profession, at least, is pressing for us to work out how to continue to be part of this after we leave.

Trademarks will have to change

“In the future, you won’t be able to get a community trademark that covers the UK,” Finnie warns.

“You have to be an EU national and an EU-qualified professional to file trademarks. So anybody doing this for companies will have to have an EU office.

“The UK will now be a foreign jurisdiction, trademark-wise.”

He says lawyers, at least, are already “fleeing to Ireland”, but that’s more of a concern on their part, rather than one necessarily for companies registering trademarks.

Likewise in this area, those in the profession are lobbying to find a way of keeping the UK involved in this process.

A few other tips and tricks

Generally, Finnie advises companies against “registering lots of patents with no tangible benefit to your business”.

He’s seen firms doing this in order to try to up their valuation. “Due diligence processes should spot that,” he says.

“There are still global questions about how you protect innovation driven by software,” he explains, as much of the law around this was created before the digital age.

“That’s being hammered out in case law. But doesn’t necessarily apply to people using software to control business operations.”

He also says that open innovation continues to cause issues for intellectual property lawyers.

“The law requires you to keep your innovation a secret, so the legal framework doesn’t encourage open innovation.

“It’s not helpful to have a system that constrains people to act individually.”

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