Category Archives: Legal policy

Snow White and the Seven Dwarfs: What is the point of IP ministers?

snow whiteSince 2007, the UK Government has had a Minister for Intellectual Property. Or, to be accurate, it has had 7 ministers, each of whom has retained their position, on average, for about a year. The latest incumbent, Baroness Lucy Neville-Rolfe, was appointed earlier this month.

It sounds good that the Government is taking IP sufficiently seriously to have a minister-in-charge. But what does it mean in practice?

Clearly, the Government needs a responsible minister to steer legislation through Parliament. In practice, there need to be at least two ministers for the role, one in the House of Commons, and one in the House of Lords. Responsibility for steering the Intellectual Property Bill recently fell to Lord Younger in the House of Lords (the IP minister before Baroness Neville-Rolfe), and David (“Two-Brains”) Willetts in the House of Commons. Both have since lost their jobs as government ministers, but IP Draughts guesses that their performance on IP matters probably wasn’t the cause.

Steering IP legislation through Parliament doesn’t require the helmsman to have a formal title of IP Minister, as demonstrated by David Willetts’ performance of this task. So, what is the purpose of the named role?

Perhaps it is to coordinate Government policy in the field of IP? If that is the case, why is responsibility for IP policy split between the Department of Business, Innovation and Skills (where the IP minister is based), the Department for Culture (which is responsible for aspects of copyright policy) and the Department of Agriculture (which is responsible for plant breeders’ rights)?

Perhaps the IP minister is expected to be a champion for IP rights, and to make sure the Prime Minister “gets it”? But surely that has been the stated role of Mike Weatherley MP, the Prime Minister’s official adviser on IP?

It is not obvious that the Prime Minister needs an IP minister; he did very well to secure the life sciences division of the unified patent court for the UK, with no apparent involvement from an IP minister.

Perhaps the role is one “behind the scenes”, working within Government, and follows the mantra of Harry S Truman, that it is amazing what you can accomplish if you don’t care who gets the credit. If so, it would be good to know what the minister does, so that those of us who are involved in the IP world can provide information and support.

The late Alan Clark MP

The late Alan Clark MP

The late Alan Clark MP was a Government minister who never quite became a Cabinet Minister. He is famous for writing some of the most entertaining political diaries of the 20th century. He was also, by his own confession, something of a shit in his personal life, but so what: the same was true of Picasso, and that fact doesn’t affect the quality of his art.

Clark’s diaries amusingly describe the drudgery of a junior minister’s official life. In part, according to Clark, the job is a training for higher office, and a probationary period to see whether you are fit to climb further up the greasy pole. In part, the junior minister’s role is to take on all the boring, politically unimportant, but somehow necessary duties that his boss, the Secretary of State, does not wish to spend time on.

This is a cynical view of the lot of a junior minister, but it is the only one that IP Draughts has seen clearly expressed. Nothing in the unimpressive performance of the 7 IP ministers leads him to a different view. In fairness, it is too soon to condemn Baroness Neville-Rolfe as she has only just started in the role.

If the Prime Minister, David Cameron, can be viewed as Snow White – the fairest of them all – for securing the life sciences division for the UK (and, as a bonus, hugely annoying the European Parliament in the process), which roles do the 7 IP ministers fill? IP Draughts would like to suggest the following casting:

Happy – Baroness Lucy Neville-Rolfe, who has resigned from directorships with Tesco and other companies in order to focus on her new role as IP minister.

Grumpy – Viscount Younger of Leckie, who was recently sacked as IP minister. IP Draughts can’t feel too sorry for this heir to the Younger’s brewing fortunes and the hereditary title that goes with it.

Sleepy – Lord Marland, who came before Lord Younger, and rose and sank without trace.

Sneezy – Baroness Wilcox. Apart from being Chair of the National Consumer Council, her job as IP minister seems to be the most noteworthy role she has had, at least if her Wikipedia entry is accurate. If she dislikes the title Sneezy (given for no other reason than that it was vacant), perhaps she would prefer the name that Walt Disney was originally planning to give to one of the seven dwarfs but abandoned as too boring: Jumpy?

Doc – David Lammy – the closest this group has to an intellectual. Not that it takes much: an LLM from Harvard means that he has more than one degree.  He is the only IP minister to come from the House of Commons; the rest have exercised their ministry from the Lords. He is probably the most dynamic of the bunch, but he wasn’t noticeable as IP minister.

Bashful – Baroness Morgan. She now has a more important role, and one to which she seems more suited in view of her career background, as Chief Executive of Breast Cancer Campaign, a leading UK charity.

Dopey – Lord Triesman, who lasted as IP minister for only a few months, before jumping ship to become Chairman of the (English) Football Association.

Part of the problem, in IP Draughts’ view, is defining what the role should be. There is probably more technical content for an IP minister to master than in many Government briefs, and  it would be good to have a minister with some intellectual clout as well as political influence. In fact, the technical content makes IP Draughts wonder whether a purely political ministerial appointment is quite right. He recalls the President of the Board of Trade, an ancient office whose title Michael Heseltine revived when he was Secretary of State for Trade and Industry (now the role held by Vince Cable, as Secretary for Business, Innovation and Skills). Originally, the Board of Trade was a committee advising Government. To quote Wikipedia:

In the 19th century the board had an advisory function on economic activity in the UK and its empire. During the second half of the 19th century it also dealt with legislation for patents, designs and trade marks, company regulation, labour and factories, merchant shipping, agriculture, transport, power etc.

Instead of an IP minister, perhaps the Board of Trade should be revived, with one of its members responsible for leading on IP issues and briefing the Secretary of State and the Prime Minister. The selected individual would probably be a businessman or businesswoman with experience of IP. An advantage of this route is that they wouldn’t have to handle (and be suited for) the humdrum activities of a junior minister.

It is also important to bear in mind that much of the UK legislation in the field of IP comes from Europe. IP Draughts is not convinced that the UK Government is properly set up to negotiate European legislation. For example, when IP legislation is negotiated by the UK Government in Europe, it seems to be handled by officials from the Foreign Office, to whom interested parties such as IP professionals have no direct access, instead having to deal with, for example, people in the UK IPO who, in turn, brief the Foreign Office representatives. IP Draughts hopes he has got this right; the lack of transparency on this issue makes it difficult to be certain. IP Draughts would much prefer there to be a single Government department, probably BIS, handling all legislative developments in the IP field in both the UK and Europe.

Therefore, in an ideal world, he would like to see the IP minister being a senior level Government appointment, perhaps with a title such as:

President of the Board of Trade and Secretary of State for Europe

 

 

 

2 Comments

Filed under Intellectual Property, Legal policy

What should the Government’s IP policies be?

reactionAt a recent meeting of IP lawyers, at which IP Draughts was present, someone asked what the next UK Government’s policies should be in the area of intellectual property. This prompted several “instant reactions”, including the following:

  1. Unified Patent Court. Continue to support the UK’s participation in the Central Division of the (European) Unified Patent Court, by providing sufficient direction and funding for the new court’s facilities and activities. After David Cameron’s remarkable diplomatic success in getting the life sciences part of the Central Division’s work to be located in the UK, it is important to follow this up at an operational level, and avoid penny-pinching.
  2. Educate the population about IP. Establish a body that is responsible for widespread education about IP.  Consider introducing courses on IP in undergraduate programmes in science and arts subjects. Work with universities and IP professionals to take this forward, rather than rely on the UK IPO which is not established to be a training body.
  3. IP threats legislation. Depending on what the final recommendations are from the Law Commission, which is currently reviewing the subject of IP threats, promptly introduce legislation to implement their recommendations.

Having reflected since the meeting, IP Draughts would add a couple of further suggestions:

  • recognise that UK IP policy is mostly developed at an EU level nowadays, and put more Governmental energy into negotiating policy developments at that level. The same point could be made about many aspects of commercial law, including the current proposals to introduce an EU-wide sales law.
  • stopstop setting up independent reviews of UK IP policy, such as Gowers and Hargreaves. They generate a huge amount of work with limited benefits in return.
  • develop some genuine expertise on this complex subject within the relevant Government department (probably BIS). Don’t expect the UK IPO to be the main source of Government expertise – that is a bit like leaving it to HM Revenue and Customs to develop fiscal policy.

Do readers agree with these points? Do you have any other suggestions?

 

6 Comments

Filed under Intellectual Property, Legal policy

Thank you, m’Lord

my lordApologies for the lack of posts in the last two weeks.  IP Draughts has been rather busy dealing with a flurry of client matters and recruiting an additional IT lawyer.

Last week he also gave an all-day, in-house talk in Cambridge.  A big thank-you to the Research Contracts team at the University for making the visit so enjoyable.  He greatly appreciated the comments from several people about how much they enjoyed reading this blog, and how they passed articles on to colleagues when they found them interesting.

Lord Clement-Jones

Lord Clement-Jones

While we are on the subject of appreciation, IP Draughts is delighted, as a member of the Intellectual Property Working Party of the Law Society of England and Wales (IPWP), that an IPWP briefing paper has been extensively cited by Lord Clement-Jones in debates in the House of Lords about the Intellectual Property Bill that is currently progressing through Parliament.  Lord Clement-Jones expressed himself to be “indebted” to the Law Society for this paper during the Committee Stage of the Bill on 11 June, and he again quoted from it on the second day of debate on 18 June.

This leads on to a more general point, which is that the IPWP has been considering whether to run its own blog, to keep solicitors and others informed about developments in IP legislation, policy and practice in the UK and EU.  The blog would provide updates on the work of the IPWP, which seeks to represent the views of IP solicitors in England and Wales (often in conjunction with the Intellectual Property Lawyers Association and the City of London Law Society).  It would also enable a more direct engagement with English solicitors who are interested in this area, eg by enabling them to comment on articles on the blog.

Recent highlights of the IPWP’s work include:

  • Active involvement in the campaign to improve, and secure a UK involvement in, the Unified Patent.  This led to David Cameron negotiating high-level terms of the underlying treaties directly with his European counterparts.
  • Submissions on the IP Bill, mentioned above.
  • A campaign over several years to revise the ‘unjustified threats’ provisions of UK IP legislation, which was probably a factor in the Law Commission making it a current subject of review.  That review is ongoing and the IPWP will be making further submissions.
  • Attending meetings with Government ministers, officials and the IPO to discuss IP-related topics, including the implications for UK business if the UK left the EU.
  • Submissions on numerous other items of proposed EU legislation, including (to take one small example) the draft Technology Transfer Block Exemption Regulation, on which IP Draughts led.

talkIt seems to IP Draughts that an IPWP blog would be a useful way of engaging with others in the development of Law Society ‘positions’ on topics that can sometimes be overlooked by non-specialists, perhaps because the topics can seem rather technical and dry, or of limited relevance to mainstream commercial and legal life.  There are not, as far as IPWP is aware, any other similar blogs in other areas of the Law Society’s campaigning, and for some this might be regarded as a big step to take, requiring considerable volunteer effort with no certainty that any engagement will result.  IPWP members already commit a great deal of time to IPWP work.  Would running a blog significantly enhance the IPWP’s work, or would it be a damp squib?

What do readers think?

Leave a comment

Filed under &Law Updates, Legal policy

IP threats: If it were not assize time, I would not take such language from you!

swordApologies for the odd title.  This posting is about the threats provisions in UK IP legislation.  Thinking about this subject reminded IP Draughts of the above quotation, which is from a seventeenth century criminal case, Turberville v Savage, that IP Draughts half-remembers from law school.  The issue was whether a conditional statement amounted to a threat and therefore to common law assault.  Or something like that.

archReminiscing further, IP Draughts’ glittering career as a criminal barrister ended shortly after it started, in 1984.  As a pupil barrister he was sent to the Old Bailey to be stand-in counsel for a client, part-way through a criminal trial.  The client was charged with some serious firearms and assault offences. The offences related to a dispute between neighbouring businesses which occupied workshops beneath the arches of a railway bridge.  Classy stuff.

The evidence had been given, the judge had summed up, and the jury had been deliberating for some time.  Unfortunately, the client’s “proper” counsel couldn’t wait any longer for the jury, and had to attend another trial.  At short notice, IP Draughts had to read the papers and decide what to say in a plea in mitigation, if the jury found the client guilty.

Edward_Marshall_HallFortunately, IP Draughts’ client was found not guilty of all the serious charges (did counsel and judge know this was likely before agreeing that a 24 year old know-nothing could take over the case?).  All that was left was a conviction for possession of an unlicensed firearm, which was a shotgun that didn’t work.  IP Draughts’ oratory, in best Marshall Hall style, no doubt had a tremendous effect on the judge’s sentence.  The client received a conditional discharge, almost the lowest sentence that could be given.  IP Draughts claims all due credit for this sentencing victory.

Anyway, back to the real world.  As IP Draughts has previously reported, the Law Commission is undertaking a review of whether the provisions of UK IP legislation concerning threats should be revised or abolished.  These provisions are intended to prevent an IP owner from making unjustified threats to sue others for IP infringement.  By saying the wrong thing in pre-action correspondence, an IP owner may find himself being sued by the would-be defendant, as this case illustrates.  In addition, a party’s legal advisers can be sued for making threats, even if they are just putting forward their client’s position.

The IP Working Party of the Law Society, of which IP Draughts is a member, produced a report some years ago which recommended that these provisions be abolished. (The previous link – at Schedule E – is to a version of the recommendations in a Gowers response; the stand alone report not immediately findable on the Law Society website.)

law commissionThe Law Commission has now considered the subject of threats and has come up with its provisional conclusions, on which it is inviting comments.  Its consultation papers can be found here.  The summary version of their consultation paper runs to 31 pages, so this is not a subject for the faint-hearted.  In a nutshell, the Law Commission’s proposals are either:

  1. To revise the threats provisions rather than abolish them, but end the right to sue a party’s legal advisers; or
  2. Move to remedies based on a more general concept of “unfair competition” which is familiar in civil code countries and in Canada.

Please make your views known to the Law Commission.  The deadline for making responses is 17 July 2013.  Responses should be made:

By email to: intel.prop@lawcommission.gsi.gov.uk; or
By post to: Julia Jarzabkowski, Law Commission, Steel House, 11 Tothill Street, London SW1H 9LJ.

1 Comment

Filed under Intellectual Property, Legal policy