Category Archives: Legal policy

UK Labour Party policy on patent licensing

IP Draughts was very interested to hear comments from Jeremy Corbyn, leader of the UK Labour Party, at yesterday’s annual Labour Party Conference. The comments indicated that the Labour Party had a new policy on patent licensing – wow!

To be more specific, he was talking about measures to reduce the price of pharmaceutical drugs, including compulsory licensing. The comments appeared to reflect proposals in this policy paper. The paper throws out lots of ideas; it is not clear how close any of them is to a final party policy. They include:

  • increased use of Crown Use provisions in the Patents Act 1977, with the suggestion that compensation may not be paid to the patent owner for such use.
  • moving away from EU data exclusivity laws and protection for SPCs, after Brexit.
  • requiring an access strategy to be agreed with recipients of public funding (e.g. research grants) to either waive IP rights or allow open licensing, or invest (e.g. via royalties) in future public activities
  • reducing the exclusivity period of patents
  • setting up publicly owned pharmaceutical companies

What Jeremy Corbyn actually said in his speech yesterday on these topics was more limited:

…[people] are being denied life-saving medicines by a system that puts profits for shareholders before people’s lives.

Labour will tackle this. We will redesign the system to serve public health – not private wealth – using compulsory licensing to secure generic versions of patented medicines. We’ll tell the drugs companies that if they want public research funding then they’ll have to make their drugs affordable for all. And we will create a new publicly owned generic drugs manufacturer to supply cheaper medicines to our NHS saving our health service money and saving lives.

Of course, it remains to be seen whether these policies will find their way into the Labour Party’s Manifesto at the next General Election, and whether the Labour Party will win a majority of seats in Parliament.

Still, this is interesting for anyone involved in advising on IP and contracts in the pharmaceutical sector.

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Filed under Intellectual Property, Legal policy

IP policy advisers: a good use of public money?

An advert on Twitter caught IP Draughts’ attention. It is for a Senior Executive Officer with the UK Intellectual Property Office. The salary is around £40,000 per annum. The job title is “Oxfordshire Growth Hub IP Policy Advisor”. The role is to work at least partly within the Oxfordshire Local Enterprise Partnership (LEP). Applications close tomorrow.

There are 37 LEPs within the UK. They are vehicles for identifying the investment needs of their regions, working up plans and obtaining government funding. The Oxfordshire LEP covers the county and city of Oxford.

Given the fact that government money is being spent in Oxfordshire in support of the local economy, and given the importance of innovative businesses to that economy, IP Draughts can see the point of including an IP specialist within the policy team.

So far, so good. What puzzles IP Draughts is the list of the main duties of the IP policy adviser (or “advisor”; the IPO seems to prefer US spelling). These are listed in the job advert as:

• Support the delivery of the Local Industrial Strategy as the LEP aspires to be ‘one of the top three global innovation ecosystems’. This will involve:
o Including IP in the drafting of the LEP’s Investment Prospectus that will underpin the LIS, recognising the region has world-leading knowledge assets and IP whose value can be maximised;
o Focusing on the activities in Pillar 2 of the LIS (A Powerhouse for Commercialising Transformative Technologies) to ensure IP’s role in unlocking growth potential and commercialisation is realised;
o Developing interventions to support the proposed Oxfordshire Finance Hub to enable businesses to accelerate IP adoption and investment in R&D, considering where IP can help to de-risk breakthrough businesses.

• Embed support and raise IP capability in the Growth Hub to enhance the offer to both breakthrough and cornerstone businesses. Both the internal Growth Hub team but also Advisors who are working across all Oxfordshire ERDF funded business support programmes with a particular focus on ISfB and eScalate

• Provide 121 support to programme clients where appropriate. This external element is vital to accelerate IP adoption

• Work with the LEP and local partners to include IP in European Regional Development Fund (or UK Shared Prosperity Fund) programmes, representing IPO and the LEP on technical assistance groups and embedding the IPO offer into the Innovation Support for Business Programme;

• Collaborate with LEP partners to consider the role of IP in knowledge exchange, skills for entrepreneurship and access to finance, working across the Innovation Directorate’s policy teams to provide insight and evaluation;

• Ensure IPO is represented in wider Government initiatives in the region including the Cambridge-Oxford Arc, and working with the Cities and Local Growth Unit, British Business Bank, DIT and Innovate UK to meet objectives;

• Work between IPO’s International Policy Directorate, Department for International Trade and the LEP to develop capability of OxLEP’s global hubs and international clusters based in science and technology parks – providing a conduit to IPO attaches support in major overseas markets;

• Develop evaluation processes to measure the impact of policy interventions and local actions to identify best practice and impact IP capability plays in adding value to regional innovation support initiatives;

• Advise Ministers and IPO senior managers on IPO business support policy;

• To actively contribute to the Business Support Policy’s team objectives and to the wider ID objectives.

And all this for £40,000 per annum!

In IP Draughts’ mind, the above description is opaque, wordy, and jargon-filled. It is task-oriented, focussing on specific initiatives with fancy names, rather than goal-oriented, explaining what value the role brings. Is this deliberate – to make it difficult for anyone to criticise the value of the role or to judge whether the incumbent has performed well – or does it simply reflect the vagueness of the overall objective?

Boiled down, the role seems to comprise the following elements:

  • ensuring IP is thought about and included in regional investment policy documents
  • raising awareness of IP issues within the teams involved in developing and implementing such policies
  • providing a source of IP expertise within those teams
  • liaising with other parts of government including overseas IP Attaches
  • advising and informing government ministers and the senior management of the IPO about their work

It must be difficult to establish useful metrics on whether activities of this kind contribute beneficially to the Oxfordshire economy. But at one level, if government is investing hundreds of millions of pounds in the local economy, should taxpayers care too much about the size or composition of the civil service team that administers that investment?

The niggle that runs through IP Draughts’ head in relation to this role, and the IPO’s policy activities more generally, is whether awareness-raising on IP issues is a useful government activity. He doesn’t doubt that it is well-intentioned and in response to political direction, but is it ultimately productive and good value for money? He would love to receive reassurance from someone whose judgment he trusts that his worries are unfounded.

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Why I don’t want to be a General Counsel

IP Draughts has spent much of his career working closely with business clients. His first job was as sole in-house lawyer to a technology-based company. Since he set up his own firm, 25 years ago, he has often acted in a role close to that of an in-house lawyer. For several years, he regularly attended the executive committee meetings of a listed company. He has advised chief executives and finance directors, as well as those responsible for R&D and commercial functions.

But he has never had the job title of General Counsel.

Earlier in his career, he worked for a firm whose partners were sometimes asked to be board directors of their corporate clients. With some exceptions, their policy was that they would act as company secretary, and attend board meetings, but would not be directors. This was partly because of the risk that such a role involved, and partly because of a perceived conflict of interest between the role of adviser and the role of decision-maker.

Increasingly, the role of General Counsel has associated legal duties and risks that have similarities with those of directors. In the USA, scandals such as Enron, and the role of in-house lawyers in its collapse, led to the Sarbanes-Oxley legislation. This places increased, personal duties on in-house lawyers with respect to reporting corporate wrongdoing.

In the UK, there is currently a consultation over whether General Counsel should be regulated by the Financial Conduct Authority under the “senior manager” regime.

There is a view, with which IP Draughts has some sympathy, that introducing regulatory obligations on General Counsel makes it more difficult for them to fulfil their traditional role as an adviser to the Board, or to senior management. If they must disclose matters to regulators, and if their advice is no longer protected by legal privilege, does this inhibit them from giving frank advice? Or does it inhibit senior managers from asking for that advice or disclosing matters to their General Counsel?

As with many issues, IP Draughts thinks the answers to some of these questions come down to people: their values, their expectations of their lawyers, and how they interact with each other. In an ideal world, your CEO gives you very clear guidance, in advance, on what he expects, gives you space to express your disagreements or doubts, supports you in the face of executive criticism that you are blocking deals, allows you to disagree with him or her, and generally acts in an ethical manner. Oh, and your salary and bonus aren’t set by the executives who you sometimes have to say no to. All this would be written down, and would be regularly reinforced by the CEO when dealing with complaints from managers about the in-house lawyer’s “negative attitude”.

But many CEOs probably aren’t that interested in the role of the in-house lawyer or making their life easy. Some may have only a hazy view of what they want from their lawyers. While this is understandable, it can lead to ad-hockery, where situations are judged as they arise. In the heat of the moment, if the in-house lawyer’s advocacy skills are lacking that day, or they have had to say no too many times recently and their stock is low, the wrong decision may be made, or inappropriate pressure may be applied to the in-house lawyer to be a team player. There is no framework of expectations against which to judge the individual situation.

Some in-house lawyers think their role is never to say no. IP Draughts has lost count of the articles he has read from in-house lawyers who proclaim that they are there to find solutions. In some situations, eg finding a way through a blocked commercial negotiation, this is commendable. But when it comes to governance issues or ethical points, in IP Draughts’ view the in-house lawyer should be able to say no on a regular basis. Whether they can or not depends partly on whether they get support from their CEO. And that support counts most when the CEO disagrees with the lawyer’s view.

The publication of the Mueller report has revealed some of the difficulties that an in-house lawyer faces when working for a determined boss who has little sympathy with, shall we say, legal niceties. IP Draughts was particularly struck by the criticism that President Trump is said to have levelled at one of his lawyers who had the extraordinary habit of taking notes.

Not all bosses are like Trump. Some may believe, with justification, that they are generally supportive of their in-house lawyers. But few will probably be interested in establishing the ground rules that IP Draughts would want to see in place before taking on the role of General Counsel in the 21st century.


Filed under Legal policy

A trip to the Ministry of Magic

Fans of the Harry Potter books and films will be familiar with the strange world of the Ministry of Magic, which is both a building and a set of serious, powerful witches who purport to run the country.

Last week, IP Draughts had an appointment at the UK Ministry of Justice. It was only after he left that the similarities with the fantasy world of J K Rowling became clear.

Several aspects of his visit were weird. First the address, 102 Petty France, which is strange enough by itself. Then the reception process, where IP Draughts was challenged repeatedly on whether he had an appointment (he did) and was told that the person he was due to see was on holiday that day (he wasn’t). It felt like the security guard was waiting to see whether IP Draughts’ magic potion would wear off under cross-examination, and he would then be revealed to be an impostor.

When, eventually, he was allowed to have a badge and to go through the security process, there was a large queue of people waiting to pass through small glass pods into the secure area. IP Draughts was reminded of the queueing process to get into the Ministry of Magic. Let us just say that people were flushed after that experience.


Filed under Legal policy