IP pitfalls for an independent Scotland
Buried away in more than 600 pages of a white paper outlining what independence would mean to Scotland, a fleeting mention of IP can be found, but blink and you’ll miss it.
“We will ensure continuity of the legal framework for protecting IP rights,” it says, before adding that independence will allow Scotland to offer “a simpler and cheaper” system than the UK’s, which it describes as “bureaucratic and expensive”.
It is not the most detailed statement for those sceptical about whether independence is the best way forward and has thrown up several key questions.
Paul Chapman, partner in the Edinburgh office of Marks & Clerk LLP, says the lack of attention given to IP—he describes it as a “couple of mentions”—leaves professionals with more questions than answers.
This includes, says Chapman, the question of “how or if” some of the UK’s current IP laws would apply. He adds that independence may require Scotland to draw up its own IP laws, as the current IP regulations are governed by a UK-based act.
Polls suggest the ‘yes’ campaign may fail at the final hurdle but anything can happen and nobody can say for sure how Scotland will stand come daybreak on September 19.
Chapman says that in discussions with the UK Intellectual Property Office’s (IPO) chief executive John Alty it was pointed out that “a number of” independent countries already allow UK IP rights to be extended upon completion of “certain local formalities”.
“There is no need for the UK government to approve such arrangements,” says Chapman, but this option would still require “some kind” of new Scottish legislation.
Alice Findlay, partner at Reddie & Grose LLP, says Scotland would almost certainly be required to implement its own laws.
This may also include, says Findlay, the possibility of introducing its own IP office.
“If it doesn’t implement its own office it would in all likelihood have to pay money to use the IPO. The UK’s office is self-funding but one wonders whether a Scottish one would be,” says Findlay.
Chapman agrees, adding: “Setting up a new IPO would involve significant start-up costs and lengthy periods of negotiation.
“When we asked Alty, he pointed out that the UK IPO employs more than 300 patent examiners and processes in excess of 20,000 patent applications annually in a very diverse range of fields. What is more, they are currently looking to recruit many new examiners,” Chapman explains.
“Any Scottish IPO would need to provide a similar service with similar resources,” he adds.
European links
Findlay says that if Scotland does not have its own IP office it cannot be part of the proposed Unified Patent Court (UPC) or Patent Cooperation Treaty agreements.
The UPC agreement, although still some way off, will be open to all participating members of the EU.
