What would Scottish independence mean for patents?

The future of IP protection in Scotland is only now being debated in the independence conversation. In view of the importance of this subject to Scottish business, as well as UK or foreign companies and individuals who do business and/or will do business within Scotland, here we address the issue in a non-biased manner, to offer up some topics and considerations for debate.

The Scottish government's blueprint for independence, which was published in November 2013, mentions IP on pages 102 and 418. It reads that "continuity of the legal framework for protecting intellectual property rights" will be ensured and proposes an independent Scotland would look to adopt a "utility protection scheme". This, according to the White Paper, would allow Scotland to offer a simpler, cheaper and more business-friendly model than the current UK system, "which is bureaucratic and expensive, especially for small firms".

One topic not explicitly covered in the White Paper is whether or not an independent Scotland would seek to create its own Scottish Intellectual Property office (Scottish IPO) or whether it would seek to make use of the UK Intellectual Property Office (UKIPO), which processed almost 1,000 patent applications and over 1,500 trade mark applications from Scotland in 2011.

A Scottish IPO would involve large start-up costs, and its formation would possibly have to be subsidised by the taxpayer. Should the intention be for an independent Scotland to use the UKIPO, then a period of negotiation would be required before any possible agreement. With these thoughts in mind, we wrote to the UKIPO for its comments.

View from the UKIPO

John Alty, Chief Executive and Comptroller General of the UKIPO, noted that his organisation employs more than 300 patent examiners and processes in excess of 20,000 patent applications annually in fields varying from quantum computing to footwear. Alty suggests a Scottish IPO would need to be able to examine patent applications across a similar breadth of technology areas to keep the same quality of service provided by the UKIPO. Additionally, it is unclear what would happen to existing patents granted by the UKIPO, for example whether they would continue to be valid in an independent Scotland.

However, as Alty points out, a number of independent countries already allow UK IP rights to be extended upon completion of certain local formalities and there is no need for the UK government to approve such arrangements, but the UK does not offer reciprocal re-registration of rights granted overseas. Thus, it may be the case that any future independent Scotland could allow UK patents to extend to Scotland, but, for now at least, if Scotland were to form its own patent office to grant Scottish patents, it would not be possible to extend these to the remaining parts of the UK. This will most likely lead to increased costs for the user wishing to seek protection in both the UK and Scotland. To read the rest of the article, visit www.managingip.com/Blog/3328701/Guest-post-What-would-Scottish-independence-mean-for-patents.html.