No Deal Brexit could be hard for intellectual property

These days 80 per cent of company value is made up of intangibles – patents in inventions, trade marks, rights in designs, copyright in software and media products, confidential information and know-how, data and databases. That is: intellectual property.

But it only exists, in the case of patents, trade marks and registered design rights, once it has been registered. The other cases need careful identification, protection and exploitation. It takes advice and investment for a business to grow and exploit this kind of property.

The UK's image of itself as a hotbed of creativity and innovation doesn't extend to intellectual property protection. The World Intellectual Property Organisation publishes league tables of which countries make the most patent, design and trade mark applications. That's not the only test, of course, but's it's a decent indicator.

The UK lags well behind countries such as China, Korea, Japan, Germany and Switzerland, even when the figures are adjusted for population and GDP. And why? Most of us who advise innovators and brand creators in the UK would agree that it's not creativity they lack so much as the willingness – or ability – to back themselves with investment. It's a cost thing.

And now we face the prospect of a No Deal Brexit. Amid all the arguments about red lines, backstops and Boris's Neighbourhood Watch, intellectual property law gets little or no coverage. But when Brexit comes, we have to face a major watershed. The law in the UK has been harmonised the EU for forty years and more, and many companies have rights that are registered not in the UK but across the EU.

In the Withdrawal Agreement, rejected so often by Parliament, there were provisions designed to keep intellectual property law and rights pretty much as they are now. The current Government has published plans for No Deal Brexit designed to get us largely to the same place. In both cases, rights registered throughout the EU are to be transformed into one EU right and one UK right, which may not be as straightforward as it looks. Then, after that, the two systems of law governing each of those rights will diverge again.

We can only guess what, if anything, government might decide to do about intellectual property law and the rights it protects. Turbulent times, and time for prudent businesses to consider investing in some advice to protect their most valuable assets.

Clive Lawrence is a partner and head of intellectual property law at Lupton Fawcett. Call 0114 276 6607 or [email protected].