The United Kingdom has formally left the European Union, and the transition period will end on 31 December 2020.

In order to build a new trading future independent of the EU, the UK is seeking to agree Free Trade Agreements (FTAs) with various countries around the world. An FTA with the United States of America is seen as a priority, and both countries have world-class leading IP frameworks.

Both the UK and the US have set out their respective negotiating objectives (UK objectives are here and US objectives are here).

In the UK’s negotiating objectives, under Intellectual Property on p.11, the Government commits to:

“Secure patents, trade marks, and designs provisions that:

• are consistent with the UK’s existing international obligations, including the European Patent Convention (EPC), to which the UK is party.”

In the corresponding US negotiating objectives, the US Government states it will seek provisions governing intellectual property rights “that reflect a standard of protection similar to that found in U.S. law”.

These UK and US objectives are not fully aligned, and a similar non-alignment may well arise in negotiations with other countries. This carries the serious risk of creating damaging uncertainty about the UK’s continuing membership of the EPC.

The IP Federation and the Chartered Institute of Patent Attorneys believe this is a most important issue on which the highest quality of evidence is essential, and we therefore jointly commissioned an impact assessment from Mr Tony Clayton, formerly Chief Economist of the Intellectual Property Office. We now have pleasure in making available his report, The European Patent Convention and its Impact on the UK Economy and Innovation. This independent report shows that the UK Government’s commitment to maintaining its membership of the EPC, a non-EU international treaty, is vitally important. The EPC is not only important for the UK economy but also for US companies, not least because US inventors working with UK patent attorneys are the biggest users of the EPC system.

If the UK was required to change its law to comply with a US FTA, and if the change resulted in uncertainty about the UK’s continued participation under the EPC, all parties would lose, and new barriers to trade would be erected. This is one reason why we believe patent law harmonisation issues are best dealt with in multilateral fora, rather than in bilateral FTAs.

This demonstrates unequivocally the hugely significant value to both the UK and the US of the UK’s continuing membership of the EPC, and why this should not be brought into question in the current FTA negotiations.