Draft Patents (Amendment) (EU Exit) Regulations 2018 Draft trade marks (Amendment Etc.) (EU Exit) Regulations 2018

Bill Esterson Excerpts

Thursday 17th January 2019 General Committees

[Bill Esterson (Sefton Central) (Lab)]

It is a pleasure to serve under your chairmanship, Sir Henry. I think this is the first time I have had that pleasure. I look forward to the rest of the deliberations. I think this is the first time that the Minister and I have faced each other as Front Benchers, although we have occasionally crossed swords, if that is not overstating it, on—

[Chris Skidmore]

The Education Committee.

[Bill Esterson]

Indeed. The Minister referred to the importance of the intellectual property regime in the United Kingdom. He was absolutely right to state in the terms he used the high regard in which it is held throughout the world. There are key questions for us about maintaining those high standards and that high reputation. In the digital era, that is perhaps more vital for businesses than it has ever been.

The operation of the patent and trademark system after exit day will play a key part in delivering business confidence. I fully welcome the Chancellor’s commitment to the business community to ruling out any prospect of no deal; that is most welcome to Opposition Members. I look forward to the Prime Minister’s making exactly the same commitment, in order to deliver the certainty for our economy that is so needed and desired by businesses, workers and consumers.

Of course, if we avoid no deal, the regulations before us become less of a challenge, but given that we have to prepare for every eventuality, we need to consider them, as the Minister says. Currently, patent law functions through domestic legislation, while EU law sets out legal provisions on the patenting of biotechnical inventions. That includes exceptions from patenting, the scope of any protection, and a compulsory licensing regime between overlapping patents and plant variety rights.

EU law also provides processes for a compulsory licence to be granted for UK manufacture of a patented medicine for export to a country with a public health need, and sets out an exception under which certain studies, trials and tests can be carried out using a patented pharmaceutical product without infringing the patent. Those provisions are being transposed under these regulations, but in these areas, questions arise to do with patented pharmaceutical products and agro-chemicals, where the EU provides for an additional period of protection after a patent has run out. I ask the Minister to address that.

In the no-deal notice, the Government advised:

“Supplementary protection certificate holders, applicants for supplementary protection certificates, and third parties may wish to familiarise themselves with any changes to the related regulatory processes (human and veterinary medicines and chemicals).”

What measure have the Government undertaken to promote those among stakeholders, and what progress has been made on certainty regarding the unified patent court? My understanding is that that is an EU-wide agreement, unlike the non-EU European Patent Office, which covers much of what is referred to in this statutory instrument.

As with all the recent SIs relating to no-deal planning, no impact assessment has been carried out of the regulations before us, and only informal consultation has taken place. That is something we have debated a number of times with the Minister’s colleague, the Under-Secretary of State for Business, Energy and Industrial Strategy, the hon. Member for Rochester and Strood (Kelly Tolhurst); perhaps the Minister can add this occasion to the list. One concern we have raised before, and which I know has been raised in written questions, is the cumulative impact of all these SIs. I draw to the Minister’s attention to the fact that there is concern about that within the business community, even if the Government do not see the need for individual impact assessments on specific regulations.

I also ask the Minister to confirm that separate UK and EU registration will be required for applications for intellectual property. Can he confirm what, if anything, is changing in that regard, given that, from my understanding, at present it is a non-EU body that manages EU-wide registration? Perhaps he can clarify exactly what will change in respect of patent applications, given that they are not an EU responsibility.

In relation to EU trademark applications pending on exit day, applicants may file a new UK trademark application within a period of nine months from exit day, maintaining the filing date, priority date, or seniority date. Can the Minister confirm what will happen after that nine-month period, and whether my understanding of the nine-period is indeed right? The draft regulations do not make reference to international trademark registrations or applications. What progress has been made with the World Intellectual Property Organisation to protect existing international registrations? This area is incredibly important, and the protection of IP is of immense value to businesses in the digital era. Getting it right is crucial.

I thank the Minister for his opening remarks, but there are significant questions still to answer about what he seems to think are relatively minor changes. Even minor changes need to be addressed to make sure we get this right. I hope that we will not need these regulations, and I hope that he hopes the same, but we need to get them right in case we do.