Written by Peter Vaughan, Chartered Trade Mark Attorney and Lecturer at Nottingham Law School (and an IP Supervisor at Nottingham Law School's Legal Advice Centre

A well balanced Intellectual Property regime encompassing a broad spectrum of individual rights including trademarks, copyright, and patents facilitates innovation and growth. Engagement with these rights by businesses and in particular SMEs from an early stage ensures adequate protections are in place from the outset and exposure to costly disputes potentially avoided.

Recognising this importance the EU launched an IP Action Plan towards the end of last year placing Intellectual Property at the heart of their plans for recovering from the Covid-19 Pandemic.  It has two key strands; a review of many areas of Intellectual Property Law and Procedure and the launch of an IP Fund aimed at SMEs to encourage their engagement with Intellectual Property.

Understandably in the UK, there has been a focus on ensuring a smooth transition during Brexit; commendably achieved by the UK Intellectual Property Office (IPO) who have provided a wide variety of information and guides as to Brexit related changes.  Following this, we can now look forward and the twin challenges of Brexit and Covid-19 provide a justification to launch an ambitious UK equivalent of the EU Action Plan.  This would allow the UK to set out its own long term strategic direction for Intellectual Property and its vision for driving growth, particularly amongst SMEs.  

A long term Action Plan would provide the platform to undertake a broad review of our current laws and their implementation.  This would need consultation across the widest possible range of views and would allow the UK to ensure it is achieving the important balance between facilitating and protecting innovation and creativity.  

Focus should be on developing our Intellectual Property rights to meet more modern challenges.  Much of the legislation has been reactively patched to accommodate changes in technology and user behaviour causing a complex web of rights and exceptions.  The UK would have the opportunity through its own Action Plan, to take a proactive approach adopting simplified and adaptable provisions, such as those around the categories of copyright works and the exceptions to infringement.  This would encourage rather than stifle innovation.

Looking at the second strand of the EU report; that of the IP Fund, it notes that SMEs are often not fully engaged with Intellectual Property and its benefits.  The UK Innovation and Growth Report 19/20 recognises similar issues in the UK. Aiming to rectify this the EU fund provides funding towards IP Pre-Diagnostic Services and fees for trademark and design applications; justified as a response to Covid-19.  

UK SMEs would equally benefit from early-stage targeted IP advice.  The UK has already identified this as an issue and should launch its own version of the EU fund.   The UK IP Audit scheme in part achieved this until it was closed.  That scheme has been identified as having a positive impact and this is an opportunity to build on its success.

What should this look like?  

Funding filing fees for new trademark and design applications is an option.  However, as official fees in the UK are low it would have a limited effect.  A better approach would be to focus funding on providing SMEs access to bespoke IP advice from an early stage.  

Access to tailored advice would be invaluable. This would allow for identification of valuable IP rights and potential areas of risk as well as for the provision of guidance on establishing suitable IP tracking and recording procedures.  Bespoke IP Action plans for SMEs would give them a clear IP Strategy and potential competitive advantage.  Targeted IP Awareness of this nature helps avoid pitfalls, including those relating to infringement, which can arise from late engagement with Intellectual Property.

As with the old IP Audit, any UK fund should be administered by the IPO allowing them to set the minimum parameters of any IP Audit whilst permitting flexibility for innovation by the IP Legal Profession.  Centralising administration through the IPO would also allow for integration into their other IP education tools such as the free automated IP HealthCheck.  

Any scheme’s cost would be low in comparison to the benefits of engagement with IP at an early stage.  We already know the old IP Audit had a beneficial impact and a new IP Fund is an immediate step the UK can take to help with post-Covid and Brexit growth.  In conjunction, the UK needs an ambitious IP Action Plan setting out its long term IP Strategy and aims for reviewing the various IP Rights.  We need to ensure those rights facilitate and support innovation and creativity rather than act as a bar.  The UK has the opportunity to lead the debate around how a modern supportive IP Regime should look especially in the context of aiding SMEs. It has to be hoped this opportunity will not be missed.