From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Friday, 17 June 2016

A patent to prevent the EU Referendum: An IP practitioner's Brexit dream

If only the AmeriKat had a patent
to prevent the EU referendum...
A precocious, yet anonymous, Kat friend has been musing on a missed opportunity in relation to the upcoming EU referendum. Assuming that under section 1(2)(c) of the  Patents Act 1977 there was no exclusion to patentability for performing a mental act or methods of doing business. Also assume that Crown user rights were a thing of fiction. Five years ago, our reader could have applied for a patent with the following claims which would now be in force:
"Claims 
1. A method of affecting the economy of a nation state, the method comprising the holding a referendum in the state on the question of whether the said state should or should not continue an international arrangement. 
2. The method of claim 1, wherein the nation state is the state in which the method is protected.
3. The method of either of the foregoing claims, wherein the international arrangement is a treaty arrangement. 
4. The method of claim 3, wherein the treaty arrangement comprises membership of the European Union. 
5. The method of any of the foregoing claims, wherein the referendum resolves to continue the international arrangement.

6. The method of any of the foregoing claims, wherein the referendum resolves not to continue the international arrangement."
Five years ago, before the EU referendum was promised by Prime Minister Cameron, the claims would have been novel and, most people would contend, less obvious (although now Claim 6 would of course be obvious to try with a reasonable expectation of success if the polls are anything to go on). The invention would have been capable of industrial application. How so, you might ask? Look at the fact that the invention will, either way, have a profound effect on industry (although not necessarily a positive one for the UK). Our friend continues:
“If I had had this patent, I could have brought a claim to prevent its infringement by either enjoining the holding of a referendum at all, or, if I favoured a particular result, enjoining the making of the wrong decision – whichever one I thought that might be. Or alternatively, licensing it to the Conservative Government perhaps for a fair royalty which might be measured as the price of overcoming internal difficulties in a party by writing a manifesto acceptable to its members at a time when it is thought that you have no chance of actually being elected and having to carry it through.”
Unfortunately, as our friend notes, European conventions on IP (i.e. the European Patent Convention) deny the UK this freedom. So what is our conclusion? That we should have another referendum on exiting the EPC! Perhaps we should call that Epcit.

1 comment:

Anonymous said...

A cynic in IP would say that the single patent is the Euro of IP, built on political expediency not logic and imposed by unelected technocrats. And something to be overseen by unelected judges (thank you Lord Forsyth (BBC r4 question time). It is the biggest assault on our sovereignty of all so far. The granting of letters patent in all spheres is an act of sovereignty...
Or in a system of globalised trade it is a step towards a global approach to defining and protecting rights...

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