The markets say Remain will win the UK's Brexit vote; but don't be surprised if Leave comes out on top

This time tomorrow, voters in the UK will be going to the polls in what is undoubtedly the most important election they have ever taken part in (the Scots, perhaps, aside). At stake is the UK’s membership of the European Union. On the ballot paper we will see the following:

Should the United Kingdom remain a member of the European Union or leave the European Union?

Remain a member of the European Union
Leave the European Union

Each of us will put a cross next to either the first or second option.

It has been a long campaign and one that has become increasingly acrimonious. I have certainly never been through anything like it before. Referendums are stark, binary choices; unlike normal elections you do not get an opportunity to change your mind four or five years later – the result is permanent. That has clearly affected the tone of the debate. There is no proof that the murder of the Labour MP Jo Cox late last week was linked to current events; that it may be is horrible, but not impossible.

In terms of framing, the Remain side has focused on two key issues: the economy and security. Their argument is that the UK is safer on both counts as a member of the EU. For the Leave side, the emphasis has been on immigration and sovereignty. Too much British law is made in Brussels, they argue, while free movement of peoples among the 28 member states means that the UK has no control over the numbers coming into the country, so putting public services and wage levels under pressure. Those are the bare bones. Leave has christened the Remain campaign Project Fear; Remain has labelled the Leave campaign dishonest and xenophobic. It’s fair to say that neither side has covered itself in glory.

For IP owners, the outcome will have a major impact if the decision goes in Leave’s favour. As discussed previously, at the very least the EU unitary patent and Unified Patent Court project is likely to be put on hold for a few years; something that EPO president Benoît Battistelli stated once again in an interview last week. What won’t happen, though, is that the UK will leave the European Patent Convention – that is entirely separate to the EU and so will not be affected by the vote. You’ll still be able to get UK patent coverage via the EPO, while UK courts will still interpret European patent law – so there won’t be any major changes to the European patent regime as it stands.

Beyond patents, following a Leave vote the UK will withdraw from the Community trademark and design systems; that will be a complicated process and the timetable will be uncertain, but it will result in increased costs as in future the UK will have to be a separate registration if coverage is required here. Depending on the final Brexit deal reached, the UK may no longer be subject to any EU IP-related legislation. More intangibly, a strong, common law perspective on IP rights will be lost to the EU, as will a major global IP power. In short, it will be a big deal.

As to what the result will be, it’s impossible to say with much certainty. There had been a big move to Leave in the opinion polls, but then Remain pegged things back. Right now they are basically even. The betting markets, however, believe Remain is the strong favourite; while the financial markets seem to have made the same calculation. I am rather less sure.

My hunch is that Leave will just squeak it, perhaps thanks to postal votes – many of which will have been cast at a time when the Leave lead in the opinion polls was at its highest. A lot of British voters see the referendum as an opportunity to send a strong rebuke to what they consider an uncaring elite that is deaf to their needs; while in any number of mainly deprived communities the issue of immigration is by far the biggest concern. Whether it is actually the case in reality or not, many voters do not feel they have much to lose by a vote to quit the EU.

The polls close at 10.00 pm UK time tomorrow and the first results are expected at around 2.00 am on Friday. By 4.00 am we should have a very good idea what the final outcome will be. When the British wake up on Friday morning they will know whether everything has stayed the same or has changed completely. It’s going to be one hell of a 36 hours.    

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