National reviews of IP are universally poor: discuss

radio-4Until a month ago, the closest IP Draughts had come to participating in national affairs was asking a question on the UK radio programme, Any Questions, in about 1981. The question he (neutrally) asked, which was whether a system of student loans should be introduced for UK students, provoked loud boos from some members of the audience, who were mostly fellow students at the University of Durham. As it happens (but nothing to do with IP Draughts’ intervention), a few years later the government introduced such a system, which is still in force today.

Last month, after 35 years of well-deserved obscurity, IP Draughts gave oral evidence on behalf of the Law Society to a House of Lords Public Bill Committee, which had been convened to consider the Intellectual Property (Unjustified Threats) Bill. The Bill was approved by the committee in its original form. It then proceeded to the Report stage, where the government proposed a few drafting amendments to deal with points that had been raised in committee by the Law Society, Chartered Institute of Patent Attorneys, and Professor Sir Robin Jacob, respectively. IP Draughts was pleased to see that the House of Lords voted in favour of the Bill with only these few amendments. We are now awaiting the third reading in the House of Lords, which should be a formality, before the Bill moves to the House of Commons for consideration.

commonsNext week, IP Draughts has another, unexpected public assignment. He has been asked by the House of Commons’ Science and Technology Committee to give oral evidence in relation to its enquiry into “managing intellectual property and technology transfer”. Details here.

As part of his homework for next week’s assignment, IP Draughts is re-reading last year’s Dowling Review of Business-University Research Collaborations, and  this year’s McMillan Review of University Knowledge Exchange Framework: good practice in technology transfer.

Dame Ann Dowling and Professor McMillan are giving evidence to the committee immediately after IP Draughts and his co-grillee, Daniel Nelki of Wellcome Trust.

Clearly, a great deal of work has gone into these reviews, and many of their comments seem sensible. But parts of these reviews, and of earlier national reviews of IP (Gowers and Hargreaves spring to mind), give the impression that they simply report views that have been expressed to them, or which appeal to their imaginations, rather than engaging in deep analysis of whether those views are:

  • objective, rather than promoting sectional interests
  • workable, in the views of experts who understand the subject
  • affordable and likely to be funded

Examples from (if IP Draughts remembers correctly) the Hargreaves Review were the ideas of having a national Digital Copyright Exchange or “hub” for making licences easily available, and of having standard IP licence agreements. The first soon died a death (a successor is still just about alive), while the latter resulted in the IPO forming a committee to work on licence agreements, of which IP Draughts was an inaugural member. At the first meeting, IP Draughts and one or two other members expressed strong doubts about the feasibility of this task, and the committee’s remit soon morphed into one of providing guides to licence agreements for SMEs.

Perhaps the review process doesn’t lend itself to, or have the budget for, this type of critical analysis. In the case of IP-related reviews, it is noticeable how rarely the composition of the review panels includes specialist IP lawyers, who might be expected to know something about the subject and have a degree of independence from the sectional interests who make representations to the reviews.

These thoughts are prompted by re-reading some of the Dowling Review’s recommendations. For example, recommendation 22 reads:

Innovate UK, in consultation with the IPO, should explore the establishment of an independent source of advice and expertise that SMEs could call upon for support in negotiating contracts with universities.

IP Draughts’ first reaction to this was that there is already such a source of advice: IP solicitors. Then he wondered whether the recommendation was more about getting advice on the commercial terms being proposed. Or getting free advice. Later in its report, the Dowling Review explains that it has in mind a kind of commercial mentoring service for inexperienced SMEs.

ipoWe have been there before. Following the Hargreaves Review, the UK IPO was tasked with finding inexpensive sources of IP advice for SMEs. 5 years ago, IP Draughts described that idea as half-baked and, as expected, it didn’t get anywhere. But the poor IPO spent time and taxpayer’s money in various initiatives, including the ill-advised promotion of a British Standard for Commercial Intellectual Property Services. It really isn’t part of the IPO’s skill set or function to set up new professions to provide cheap advice.

IP Draughts is left with a sense that these repeated IP reviews are being conducted on the basis that if they produce several dozen recommendations, at least a few of them will “stick” and prove useful. This is a terrible way of conducting public business. Please could we have a decent pause – say 10 years – before another national review of IP policy is conducted. And when the next review is conducted, could it be written into its terms of reference that it may not produce a report unless:

  1. The report has no more than 5 recommendations.
  2. Each of those recommendations has been reviewed by a specialist IP lawyer or IP contracts manager who advises in writing that he or she considers the recommendation to be workable.

 

2 Comments

Filed under Intellectual Property, Legal policy, universities

2 responses to “National reviews of IP are universally poor: discuss

  1. Thanks, Phil. Title is a bit provocative, but it taps into frustration among IP lawyers about IP reviews over the last decade.
    On reflection, and since writing this article, I think the two linked reviews are better than some of those that have gone before. Shame that some of the accurate nuance in the main body of Dowling.is lost when it comes to the shorter recommendations.

  2. Not sure I agree about “universally poor”. The reviews cited are not only about IP, but are about the use of IP in the peculiar context of the interface between universities and business. IP drafts is probably unusual in being an IP lawyer with a good grasp of that context – and even he works with others to navigate through this complex landscape. I agree that much of the discussion is led by people who don’t have a deep expereince of the details – but the people who do have that understanding are not all IP lawyers. And vice versa of course.

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