Coming soon to a country near you: the McGebrauchsmuster

Merpel, like the IPKat, is always happy to dispense unsolicited advice -- but it's even nicer when someone asks her opinion.  That's why she was so happy to receive earlier this afternoon the following message from a representative of Her Britannic Majesty's Government that read as follows:
"Doubtless you will have read the Scottish referendum White Paper from cover to cover [Indeed, says Merpel, I make it a point of reading little else].  If not you can  find it at    XY here [at the Intellectual Property Office] is looking at the claims on IP summarised below for those who couldn’t download the 700 odd pages [they're not all odd, says Merpel, who checked every one of them and discovered that round about half of them were even]

Page 102/3

•                   independence will ensure continuity of legal framework for protecting IPRs
•                   Independence will allow Scotland to offer “simpler and cheaper, more business-friendly model than the current UK system, which is bureaucratic and expensive, especially for small firms.  The UK is one of the few EU countries which does not offer a scheme which covers the basics of protection.  Scotland could follow, for example the German model which protects technical innovations.” [This sound like fun: the McGebrauchsmuster]
•                   Scotland has dispute resolution expertise
•                   Scotland will amend immigration rules to enable the recruitment of international research talent and students
•                   There’s then a bit on how the Scottish Govt is building relationships with the likes of Walt Disney [no mean achievement: the man died in 1966]

Page 398

Q66 Will intellectual property rights be protected?

Yes.  Intellectual property will continue to be protected.  As an EU member state [not so fast: will Scotland meet the admission criteria?], Scotland will meet European regulations and directives on IP rights protection, as well as international patent and trade mark protections.

Q67 Will independence offer improved intellectual property services?

Yes.  Independence will allow Scotland to offer a simpler, cheaper and more business-friendly business model than the current UK one which is seen as bureaucratic and expensive, especially for small firms.  The UK is one of very few EU countries which does not offer a “second tier” , or “utility” protection scheme which covers the basics of IP protection and is cheaper and quicker to access.  Scotland could follow for example the German utility model which is more a protection of technical innovations.”

If you have a moment, I’d be grateful for your thoughts on what’s there to feed into our thinking/discussions".
This debate may rumble on for a long time. Meanwhile, readers are invited to air their thoughts.
Coming soon to a country near you: the McGebrauchsmuster Coming soon to a country near you: the McGebrauchsmuster Reviewed by Jeremy on Wednesday, November 27, 2013 Rating: 5


  1. Will Scotland become a member state of the European Patent Convention?

  2. A utility model in Scotland but not the rest of the UK would be insane. It would mean that companies wanting to do business around Europe would require an additional type of clearance to be able to trade in Scotland as well as England. It's fine for Germany to do that as it's big and important.

    Lacking the Intellectual Property Enterprise Court, Scotland is not a cheap place for patent litigation.

    The white paper fails to show real understanding of issues which an independent Scotland. Would it create it's own Patent Office? If so, how much would that cost? If not (more likely) how would patents be obtained - would English patents extend to Scotland?

    It's not even written well...

  3. There are 28 EU member states. 16 offer utility models according to WIPO.

    Is 12 "few"? Seems like it could be considered "almost half" to me.

  4. If a Scottish utility model is to limbo-down below the inventive step standard applied by the Patent Office it will need to be very flexible indeed.

    I wonder, if the authors of the document consider the Patent Office to be expensive and unfriendly to small firms (objectively, it is not) have they ever used the EPO?

  5. Will Scotland sign up to the UPC? And how would Scottish independence affect the UPC and the UK ratification (which is essential) - the UKIPO does not have any answer to this question(I asked them about it at the recent CIPA webinar on the UPC), they seem just to be taking a 'wait and see' approach. And I fail to see how the SNP think that any IP system would be cheaper in an independent Scotland, there would still be patent attorney fees to be paid which are by far the most costly part of obtaining a UK patent.

  6. Suppose the Scots go independent before the UK ratifies the Unitary Patent Agreement. That would scupper the UPC. Ratification by UK is necessary to bring it into force. When Scotland becomes independent, the UK ceases to exist.

  7. Scots Utility Models? An opportunity to re-invent the wheel (and re-protect it, as was done in Australia).

  8. Tim - the most likely scenario in the event of a "Yes" vote to independence is surely that the entity consisting of England, Wales and Northern Ireland (which the media is referring to as rUK - I prefer "disunited Kingdom" - dUK; or perhaps "falteringly UK"...) would legally be recognised as the successor state to the UK.

    In this case I presume the dUK would inherit the ability of the current-UK to ratify the UPC? So the UPC is not necessarily completely scuppered by Scottish secession.

    In any case, the SNP's assumption that Scotland would automatically qualify for EU membership seems to be on legally dubious ground - to the extent that the EU's gnomic pronouncements on the issue can be understood, it seems that Scotland would, strictly speaking, need to reapply for membership (and sign up to the Euro as currency, though perhaps they could negotiate a Swedish-style indefinite postponement of this). Spain and Italy may well veto membership to avoid encouraging the Catalans/Basques/Northern Italians. Then again, the EU is nothing if not inventive where fudges or blatant disregard for treaties are concerned if they serve a "higher" [political] purpose.

  9. The IP section is interesting for your readers, not so much in itself, but as a sample of the quality of the document as a whole. We know a bit about IP - not perhaps so much about other even more important topics. If the IP analysis is a fair sample - should we be impressed? (I'm not)

  10. I recall reading that, before UK patent law was overhauled in the middle of the 19th century, a basic patent only extended to England and Wales: additional fees had to be paid to extend it to Scotland, as was recounted in Dickens' "Poor man's tale of a patent".

    The failure of early photographic innovators to extend their patents to Scotland in Victorian times apparently gave a boost to photography there, as anyone could make use of the new developments ( pun not intended) without paying royalties.

    I recall a CIPA exam question some years ago where the scenario concerned the import of a washing machine covered by a UK patent, by a private individual in Northern Ireland, from a supplier in the Irish Republic, where there was no patent protection. The answer turned on whether the property in the goods passed in the Republic prior to importation (in which case it would be the individual who did the importing, and hence no infringement) or in Northern Ireland after importation (in which case action could be taken against the importer). No doubt a similar situation would arise vis a vis Scotland and England if separate protection for Scotland goes ahead. I doubt that those in favour of independence would care to use the Swiss model, where Switzerland and Liechtenstein are in effect treated as a single territory for patent purposes.

  11. The failure of early photographic innovators to extend their patents to Scotland in Victorian times apparently gave a boost to photography there, as anyone could make use of the new developments (pun not intended) without paying royalties.

    Was there enough sunlight between rainstorms in the Highlands to make good pictures? ;-)

    The French National assembly, under the enthousiastic sponsorship of scientist Louis Arago, exceptionally awarded in 1839 a pension to Daguerre (inventor of the earliest silver iodide based process) and a nephew of the late Nicéphore Niépce, and presented their inventions as a present to all humanity.

    Talbot was thus encumbered by this earlier French non-protected process, which could be used by anyone, contrary to his (superior) patented one. (I know, applying for a foreign patent would still have been unlikely in that period).

    France later adopted her patent act of 1844, which served as an inspiration for many others to come. I wonder about the role played by this particular episode in creating this new law.

  12. My copy of "THE KODAK MUSEUM; THE STORY OF PRACTICAL PHOTOGRAPHY" , published by what is now the Bradford Media Museum, has an 1880's photo of a photographic printing establishment in Aberdeen which was then turning out a million prints a year using over a thousand printing racks arraged in a large yard. Unsensitised Silver Halide photographic emulsion is highly sensitive to ultra-violet light, so printing would still be possible on overcast days.

    Some enterprising person did file a patent application for Daguerre's invention. Under the old UK law, it was possible for a person other than the inventor to get a patent for something that was previously only known "beyond the seas". The application was certainly published as I used to have a copy, but I think it may have been opposed.

  13. I think the Scots should have a 19 year patent term. That would mean that in the 20th year companies would build factories there for the products, ready to launch into the UK when the patent runs out there.


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