Section 357BM | Profits arising before grant of right ^F1F2

(1)This section applies where a company—

(a)holds a right mentioned in paragraph (a), (b) or (c) of section 357BB(1) (rights to which this Part applies) or an exclusive licence in respect of such a right, or

(b)would hold such a right or licence but for the fact that the company disposed of any rights in the invention or (as the case may be) the licence before the right was granted.

(2)The company may elect that, for the purposes of determining the relevant IP profits of a trade of the company for the accounting period in which the right is granted, there is to be added the amount determined in accordance with subsection (3) (the “ additional amount ”).

(3)The additional amount is the difference between—

(a)the aggregate of the relevant IP profits of the trade for each relevant accounting period, and

(b)the aggregate of what the relevant IP profits of the trade for each relevant accounting period would have been if the right had been granted on the relevant day.

(4)For the purposes of determining the additional amount, the amount of any relevant IP profits to which section 357A does not apply by virtue of Chapter 5 (relevant IP losses) is to be disregarded.

(5)In this section “relevant accounting period” means—

(a)the accounting period of the company in which the right is granted, and

(b)any earlier accounting period of the company which meets the conditions in subsection (6).

(6)The conditions mentioned in subsection (5)(b) are—

(a)that it is an accounting period for which an election made by the company under section 357A(1) has effect,

(b)that it is an accounting period for which the company is a qualifying company, and

(c)that it ends on or after the relevant day.

(7)In this section “the relevant day” is the later of—

(a)the first day of the period of 6 years ending with the day on which the right is granted, and

(b)the day on which—

(i)the application for the grant of the right was filed, or

(ii)in the case of a company that holds an exclusive licence in respect of the right, the licence was granted.

(8)Where the company would be a qualifying company for an accounting period but for the fact that the right had not been granted at any time during that accounting period, the company is to be treated for the purposes of this section as if it were a qualifying company for that accounting period.

(9)Where the company would be a qualifying company for the accounting period in which the right was granted but for the fact that the company disposed of the rights or licence mentioned in subsection (1)(b) before the right was granted, the company is to be treated for the purposes of section 357A as if it were a qualifying company for that accounting period.