Tuesday 14 June 2011

Patent Box

No No not a patent storage box
HM Treasury have recently announced a further consultation on the plan to introduce a *patent box* to allow companies taxed in the UK to reduce their corporation tax liability to 10% on profits arising from patent exploitation. When first announced this was only going to affect licence income for new patents and I suspect most of the patent profession ignored it as yet another empty political gesture - which it was.

The plan today is however very different and now that it covers the embedded income generated by an an innovative business making a profit, it does seem to have the real potential to encourage innovation and the exploitation of patented technology.

It is definitely worth bringing to the attention of your clients. It seems to me that we should also be looking at cooperating with accountants. The consultation is being led by the Treasury with the support of a working group consisting of a number of large patent holding businesses. No doubt they have accountancy teams well able to work out the complex calculations needed to claim this tax relief. To be fair to the Treasury, the approach is delightfully formulaic and probably doesn't require too much academic flair.
However, the truly interesting question is going to be assessing whether there has been  incorporation of the patented invention into the product that is generating the profits. Definitely a role for the patent attorney. Sadly, we have all seen the business that files a patent but sells a product outside the scope of that patent.

Another real issue that I think we need to address is that the proposal is that a patent will qualify for the patent box in full from the date of grant. You can use the UK and EP patent. This is certainly going to create a much greater demand for the early grant of national UK patents and we need to be on to it now. I have long been an advocate of the combined search and examination procedure which results in both early grant and enough information to decide whether PCT and other foreign patent protection is justified. Of course, it's not that often a patented product generates much profit in its very early years. That, surely, is the point of the patent. The innovative company needs the patent to secure a longer term monopoly in order to make a profit. Now, the government proposes to allow innovative companies to keep a good deal more of that profit. Nice.

The period for response to the consultation expires on second of September 2001. However, if you want to be in on the working group nominations for additional members should be sent to corporatetaxreform@hmtreasury.gsi.gov.uk by 24 June 2011.

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