Is the UK Tech-nically closed for business?May 19, 2023
A Look at TwitterMay 22, 2023
THE UNITARY PATENT SYSTEM
Whilst there are patent exclusions, such as scientific theories and discoveries, a patent is otherwise granted if an invention is novel, inventive and has industrial applicability. Upon registration, it gives exclusive ownership rights, making it illegal for someone else to use, make or sell said intellectual property or undertake a process based on the patent without the owner’s permission.
The European patent with unitary effect, otherwise known as the Unitary Patent (UP), is an extension of the European patent, which, in tandem with the Unified Patent Court (UPC) as instituted by the EU Member States, with the latter having jurisdiction over the UP and its predecessor, is due its implementation on 1st June 2023.
Overview and impact
Patents are the intellectual property rights granted to an inventor to protect their inventions for a limited period. There are primarily similitudes and minor differences between the EU and the UK concerning the patent prosecution process. For instance, patent grants last 20 years in either jurisdiction, although non-renewable afterwards, and the application and maintenance fees are payable to a central office.
In the UK, an annual fee is payable to the Intellectual Property Office (IPO), with the first payment due on the fourth anniversary of the patent filing date, whilst for the EU, said fees are payable to the European Patent Office (EPO), a non-EU institution, on the third year after the patent filing date, and each subsequent date after that. The main advantage of having the EPO is that the application for a European patent is centrally managed, eliminating the necessity for costly multiple national applications and guaranteeing uniformity in the quality of grants.
Contrarily, the substantial difference between the two jurisdictions, and consequently a disbenefit, is the requirement for multiple validations (although not incumbent in all Member States) of a European patent, whereby the inventor must register the patent in countries where they seek exclusivity, as for all intents and purposes, an application for EU patent protection is an application for a cluster of national patents. This process must be completed within three months of the patent grant, with each patent translated as per the applicable state’s requirements, constituting an incommodious, inefficient, and costly process, hence the introduction of the UP.
Any individual, company or research organisation can apply for a UP. However, an inventor must, at first instance, be granted the European patent and further opt for the said patent to have a unitary effect (within a month of a European grant), evincing ‘uniform patent protection in up to 25 EU Member States’, as some EU members have yet to accede to the new system. All that is required is a single submission to the EPO.
Resultantly, ‘Unitary Patents will remove the need for complex and costly national validation procedures’, thus demonstrative of a one-stop-shop process. Eliminating prohibitive costs means the UP system ‘is expected to stimulate research, development and investment in innovation’.
As inventor rights are better protected across the board under the new system owing to the UPC’s elevated legislative reach and enforcement mechanisms for breach of these rights, higher value is placed on inventions, making the toil worthwhile for innovators.
Impact on the legal sector
The European Patent Convention (EPC) is an international treaty independent of the EU, and there are 39 contracting States, with the UK being one of them. Whilst not all the EPC’s members are EU Member States, all current members of the EU are party to the EPC.
As the UK is no longer a member of the EU, the new system has no jurisdiction in this country, and an inventor, despite possessing UP rights, must separately validate their patents in the UK. Moreover, UK inventors may apply for a UP, thus situating exclusivity in the EU, a protection which can be extended to non-EU EPC countries.
Intellectual property specialists, specifically patent lawyers, are set for a hyper-immersive period ahead. There will likely be new prosecutions for UPs from UK inventors and from Member States validating their patents in the UK. Clients may need additional advice on commercialising their innovations, whilst others may need advice or advocation in issuing litigation proceedings to enforce their rights in consideration of the new legislative framework.
Further, there is always the risk that UK patents may breach EU patent legislation and vice versa. Therefore, said lawyers, for fear of stating the obvious, will continue to closely monitor this new system and any developments in acting in the best interests of their clients.
Briefing by Aqua Koroma
CHIEF CONSTABLE OF THE POLICE SERVICE OF NORTHERN IRELAND AND ANOTHER V AGNEW AND OTHERS
The law’s stance on ‘basic’ and ‘normal’ pay has always induced consternation amongst employees and employers, often resulting in claims and appeals before tribunals. Perhaps the most recent, most important case highlighting this issue, which looks set to explicate antecedents in this area of law, is mentioned above.
This case was brought against the Chief Constable of the Police Service of Northern Ireland and Northern Ireland Policing Board by Unison on behalf of Mr Agnew and 3,700 others after regular overtime undertaken by the appellants was not included in holiday pay calculations as prescribed by the Working Time Regulations (Northern Ireland) 1998 (WTR NI).
- The WTR NI, derived from the EU’s Working Time Directive 2003/88/EC (WTD), remains unchanged despite Brexit.
- As per Article 86(1) of the Withdrawal Agreement, the CJEU continues to have jurisdiction over any pending cases beyond the transition period.
- A ‘worker’ as defined under EU law (Part 1, COM (2010) 373 final*), is a natural ‘person who undertakes genuine and effective work for which he is paid under the direction of someone else’ and for which its meaning ‘cannot be subject to national definitions or be interpreted restrictively’. Therefore, police officers are within this definition.
In Bear Scotland Ltd v Fulton  ICR (EAT), the point of contention was whether regular overtime, an obligation which workers must perform if required, be included in holiday pay calculations. Per the Employment Rights Act 1998 and the WTR NI, regular overtime should not be included in holiday pay calculations.
Despite this measure, the Employment Appeal Tribunal (EAT) decided to open potential floodgates for backdated claims by deciding on the contrary. To mitigate such an onslaught, the EAT ruled that should gaps exceed three months between claims for underpayment, as per the WTR NI, later periods could not be claimed.
As a result of the decision in Bear Scotland Ltd, the then appellants in Chief Constable made initial complaints to the Industrial Tribunal in 2015 under Regulations 30 and 43 of WTR NI 1998 and WTR NI 2016 respectively (the right to complain to a tribunal for contravention of legislative initiatives in pursuit of a remedy for underpayment).
The primary complaint was that the workforce, both civilian and police, received basic pay, as opposed to normal pay, the latter’s calculations which should include overtime and holiday pay, for many years whilst on their annual leave. However, in its case law, and as per Article 7 of the WTD, the CJEU clarifies that workers must be paid their normal pay during their leave.
The appellants also alleged that the underpayment was contrary to Article 14 of the ECHR (the protection from discrimination) when read in conjunction with Article 1 of the First Protocol of the same Convention (the protection of a person’s right to peaceful enjoyment of his property to include money).
Chief Constable was progressed to Northern Ireland’s Court of Appeal in 2019. The Court opined that calculating and subsequently paying holiday pay as basic instead of normal pay is an unlawful deduction of wages and that the Employment Rights (Northern Ireland) Order 1996 had no measures limiting the period between claims for illegal deductions.
The Court also determined that where there are links between underpayments, said underpayments constitute a series of claimable deductions, irrespective of whether the time limits formulated in the WTR NI have been surpassed. This judgment, based on the period claimed for, thus implies that the appellants could be owed as much as £30 million in back pay.
Although the Policing Service et al. agreed to the ruling concerning the unlawful deduction of wages, they advanced the proceedings on appeal to the Supreme Court, with the case being heard from the 14th to 16th of December 2022 for review and clarification of, among other points of law and fact, the extent of the remuneration due to the now respondents, the period permissible for such claims, the correct mode of calculating normal pay and whether Agnew and others have been discriminated against as per the ECHR, with the judgment expected sometime in 2023.
Time for change
Despite the WTR NI being an EU-derived Directive, there is much contradiction between the WTR and EU law; notwithstanding the case in issue, see King v The Sash Window Workshop Ltd CJEU C-214/16 and Pimlico Plumbers Limited  EWCA Civ 70.
Distinctly, the dubiety surrounding this issue results in employees being underpaid, for which employers risk sanctions for non-compliance, such as improvement and prohibition notices issued by the Health & Safety Executive, and in circumstances whereby those directions are disregarded, the prospect of directors facing up to two years imprisonment, unlimited fines and reputational damage.
Whilst some EU Directives, Regulations, and case law still sustain variable persuasive and, in some rare instances, binding effects, EU primacy in its previous form no longer applies in the UK; therefore, solons possess the legislative independence to amend the WTR NI to reflect UK law and way of life. For example, there needs to be clear demarcation regarding the constitution of basic and normal pay, the parameters for compulsory overtime regularly undertaken, and the limitation periods for claims in specifically outlined circumstances.
As a result, the Supreme Court’s decision concerning Chief Constable is eagerly anticipated in the hope that it addresses at least some of the non sequiturs highlighted.