Category Archives: Legal policy

What will the next UK government do about IP?

This time next week, the UK is likely to have another Conservative government. None of the party leaders seems to be greatly inspiring the voters. The Brexit issue is still central. The mood of the electorate appears to be one of resignation to the inevitability of Britain leaving the EU, with little appetite for reversing the decision, and a vague hope that the Prime Minister can do a good deal, as she has been claiming.

Like many, IP Draughts was surprised to read that the Secretary of State for Exiting the European Union, David Davis, had claimed earlier this week that “over a hundred pages of detail” had been published on the UK’s negotiating position for Brexit. IP Draughts had assumed that this meant that the government had moved from airy principles to a slightly more detailed position. He had been planning to comment on the absurdity of thinking that thousands of detailed Brexit issues could be reduced to 100 pages.

But, listening to the radio broadcast just now, he realises he was naive. The Secretary of State was simply adding up the page numbers of several statements of principle made at different times, including the White Paper, notification letter to the European Union, and so on. The Secretary of State’s claim is even more vacuous than IP Daughts had first thought.

The IP Law Committee of the Law Society of England and Wales, currently chaired by IP Draughts, is in the course of preparing a table that summarises the main IP-related Brexit issues and our recommendations for how to deal with them. So far, the table has reached 24 pages of A4 paper, and over 6,000 words of text. This is a short-ish note of headline issues rather than a detailed briefing paper.

There are hundreds, if not thousands, of other trade-related, Brexit themes of similar significance to IP, including (to take a few that come immediately to mind):

  • mutual recognition of judgments
  • the Euratom treaty and future cooperation in atomic research
  • the regulation of medicines
  • VAT laws
  • data protection

Assuming that UK civil servants are preparing detailed briefing notes on each of these topics (plus short summaries for ministers), IP Draughts estimates that there will be hundred of thousands of pages of detail going in the direction of the Department for Exiting the EU.

IP Draughts fears that, in this blizzard of paper and electronic documents, IP issues will be relegated to something like schedule 27 to an overall briefing note, and will not be given the attention it deserves. He is also concerned that there are cross-cutting themes, affecting IP and other subjects, whose importance may be missed.

Many years ago, the management guru, Charles Handy, referred to the “silos” of expertise within the UK Civil Service. IP Draughts wonders whether these silos are well-placed to identify and suggest solutions for dealing with cross-cutting themes such as CJEU jurisdiction, which comes up in many of the trade issues.

At some point, the UK government is going to have to address the detailed issues. At present, we have no visibility on the process for developing policy on these issues, or whether it will be possible for external organisations such as the Law Society to influence the policy.

Usually, when new laws are made, there is a formal consultation process. In this context, consultation implies not just being willing to receive papers, but also engaging in a conversation. Usually, the IPO consults on every small change to IP laws. If a similar process is envisaged for Brexit-related changes to IP laws, it will be a major exercise. It remains very unclear how this is going to be managed, given the timescale of Brexit and the huge number of issues that arise.

At present, civil servants are in pre-election purdah. But it seems like they have been in purdah since long before the election, and there are no signs of any change after the election. We are told to keep sending in our submissions, but we get no feedback and no clues as to whether we are making the right underlying assumptions as to the direction of the government’s travel.

At some point, surely the dam must break and a flow of policy dialogue will resume? Or are we just supposed to sit and wait until the Prime Minister tells us what deal she (assuming she continues to be Prime Minister) has struck on the EU trade mark and thousands of other issues?

These are strange times.

 

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Contribute to IP policy

It’s that time of the year when the Law Society of England and Wales advertises for new members of its policy committees.

The Intellectual Property Law Committee is looking for 3 new members. Have you considered making a contribution to the development of UK and international IP policy through membership of the IPLC? It can be rewarding, particularly when you see the results of diligent, thoughtful submissions to government, e.g.

  • the Intellectual Property (Unjustified Threats) Bill, which now awaits Royal Assent. The IPLC initiated a campaign to amend the law on IP threats in about 2006, and after a slow start the Law Commission was persuaded to review the subject and make recommendations which the government largely accepted.
  • David Cameron, when Prime Minister, negotiating to get the life science part of the central court of the Unitary Patent system to be located in London. (There are currently issues around how long the UK will be able to remain a member of the system, in view of Brexit, but the deal about the London court was struck prior to the Brexit referendum.)

Details of the current membership of the IPLC and its terms of reference can be found on the Law Society website here. The members are usually solicitors qualified in England and Wales, and are a mixture of private practice and in-house practitioners.

Inevitably, Brexit is taking up a lot of our time at present, as we identify the issues that will arise, particularly in relation to EU IP rights, and make recommendations on how to deal with these issues. IP Draughts recently attended a meeting with the IP minister, Jo Johnson MP (younger brother of Boris) and others to discuss some of the headline issues.

Ideally, we probably want one patent specialist, one copyright specialist and one trade mark and designs specialist, to complement the existing membership.

Details of all the Law Society vacancies and how to apply can be found here. Expenses are paid (subject to navigating the policy and procedures!) and a small honorarium is also paid. The closing date for applications is 12 noon on Monday 10 April 2017.

 

 

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MPs’ report on TT: mostly practical, sensible advice

The House of Commons of the UK Parliament has a Science and Technology Committee. The committee has today released its report (HC755) on its Inquiry into Managing Intellectual Property and Technology Transfer. Disclosure: IP Draughts was one of 19 witnesses who gave oral evidence to the inquiry, and he gets a brief mention in the report, more on which below.

The terms of reference of the inquiry explained that it was taking place in light of two recent developments:

Dame Ann Dowling’s July 2015 Review of Business-University Research Collaborations commented that in universities “there is a tension between the desire to earn short-term income from their Intellectual Property and the need to deliver wider public benefit, and potentially greater long-term return on investment from this IP. The emphasis needs to shift towards the latter, and this must be reflected in Technology Transfer Office funding models and success metrics. … This area remains a major source of frustration for both academics and businesses.”

Our recent hearing on Graphene included discussion about the role of universities in the commercialisation of their research work. We now invite written evidence on how well this system works and what measures are needed to improve it.

The inquiry ranged across a number of aspects of university technology transfer (TT) and the commercialisation of IP. The final report of the committee focused on three areas:

  • how business demand for technology transfer might be increased
  • the geographical context of technology transfer [is it nearly all done in the ‘golden triangle’ of Oxford, London and Cambridge, and should it be encouraged in other places]
  • funding and support for technology transfer

Golden triangle. A=Oxford, B=Cambridge, C=London, X = Milton Keynes?

The report summarises the range of views that it heard when taking evidence on these topics and draws some sensible conclusions and advice for government. The main points that IP Draughts takes from the report are:

  1. Let’s move on to implementation. We’ve had enough national reviews of intellectual property and technology transfer (“at least 12 …over the last 15 years”). It’s time for the government to take action in several areas, outlined in the report. [Hoorah! IP Draughts and his colleagues on the Law Society’s IP Law Committee have spent hundreds of hours over the last 15 years submitting evidence to some of those reviews, including Gowers and Hargreaves, and have been disappointed by the quality of some of their conclusions.]
  2. Don’t scapegoat the TT offices. Dame Ann Dowling’s review expressed the frustration felt by some companies and academics about the process of negotiating IP issues with universities. The suggestion appeared to be that TT offices were the cause of this frustration. The present report gives a much more balanced picture, pointing out that some of the perceived difficulties may be down to (a) a lack of understanding of the complex issues involved, (b) the problems of valuing early stage technologies, and (c) the different interests of the parties. The report provides some welcome support for TT offices (“…situated in the middle of complex IP negotiations, balancing competing priorities, with varying degrees of support.”) [Hoorah! It is too easy to blame the TT office, which often has insufficient support from the university’s senior management, leaving other participants – whose interests differ from the university – with an easy target for cries of causing “difficulties”.]
  3. Focus on improving take-up by UK industry. Universities are good at generating technology; UK industry has a poor record of making use of it. Rather than continually focus on making universities better at serving UK industry, focus on improving the environment for industry to make use of university research and innovation. [Hoorah! Viewed globally, UK universities have a more impressive reputation than UK industry. Government policy should focus on the areas mentioned in the report, including tax policy on R&D credits, VAT and investment in technology.]

Some other recommendations in the report didn’t resonate with IP Draughts. Databases of university technology are unlikely to be of much use. Getting government agencies to look into training TT offices sounds like a bureaucratic solution. Encouraging regional specialisation in research and TT sounds like another top-down, dirigiste waste of time and money.

Overall, IP Draughts welcomes the report’s conclusions and the committee’s encouragement to government to implement TT-friendly policies.

And how could he not, when he is quoted at paragraph 69 (on the subject of whether TT offices cause problems in negotiations over IP):

Other witnesses suggested that the very nature of negotiations, together with the challenges posed by valuing new, early-stage technologies, can mean that a degree of delay and difficulty is unavoidable. As [IP Draughts] explained, “it is a negotiation: inevitably, there are going to be difficulties sometimes”.

Hardly an earth-shattering observation, but one that needed to be made in light of Dame Ann Dowling’s unbalanced conclusions on this issue.

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Post-Brexit trade policy and UK IP

12-stepsPlease don’t confuse UK IP with UKIP! They are not the same thing, at all.

This blog recently commented on the UK Prime Minister’s 12 point plan for Brexit. IP Draughts tried to find clues as to future policy on international IP protection. They were not easy to find.

The Government’s White Paper, The United Kingdom’s exit from and new partnership with the European Union, was published last week. Running to 75 pages (plus forewords), its stated purpose is to “set out the basis for these 12 priorities and the broad strategy that unites them in forging a new strategic partnership between the United Kingdom and the EU”. One might expect that it would provide more detail on the Government’s approach to IP and other international trade issues.

References to IP

There are several explicit and implicit references to IP in the White Paper.

Cross-cutting regulations

8.36 A range of cross-cutting regulations underpin the provision and high standards of goods and services, maintaining a positive environment for businesses, investors and consumers. For example, a common competition and consumer protection framework deals with mergers, monopolies and anti-competitive activity and unfair trading within the EU on a consistent basis, and EU-wide systems facilitate the protection of intellectual property.
8.37 As we leave the EU, the Government is committed to making the UK the best place in the world to do business. This will mean fostering a high quality, stable and predictable regulatory environment, whilst also actively taking opportunities to reduce the cost of unnecessary regulation and to support innovative business models.

A global leader in international collaboration

10.12 One of the UK’s key strengths in research is international collaboration: 47.6 per cent of UK articles in 2012 were internationally co-authored – a share that has been increasing.90 With just 3.2 per cent of global research and development expenditure, the UK accounts for 6.4 per cent of articles and 15.9 per cent of the world’s most highly-cited articles. The UK also exported over £11 billion of intellectual property globally in 2015. [Reference: ONS Pink Book 2016, July 2016.]

10.14 As we exit the EU, we would welcome agreement to continue to collaborate with our European partners on major science, research and technology initiatives.

[emphasis added]

The White Paper also includes a table that illustrates the export of services from the UK to the EU, and has a line item for IP showing £4 billion of exports of IP. (IP Draughts has no idea what this figure means, but it looks impressive, and this alone should help to focus the Government’s mind on IP issues.)

The above references to IP have a slight air of being an afterthought – tacked on to the most relevant paragraphs of the White Paper, as if the Government felt it should mention IP but hadn’t really formed its ideas on what to do about it. Is IP part of the cumbersome EU regulatory system, to be made better once the UK leaves the EU, or a valuable export asset to the EU that sits with the UK’s success in international R&D, and where continuing cooperation with the EU is to be encouraged?

There is a sense of non-sequitur, perhaps caused by this tacking on. The EU regulatory system for IP seems to be considered beneficial in paragraph 8.36 above, but paragraph 8.37 seems to suggest that the UK will be better off without EU regulations.

By contrast, the above references to exports of IP seem to suggest a more positive attitude to cooperation with the EU, post-Brexit.

In IP Draughts’ view, it would be better to think of IP as an asset that helps to protect and support the UK’s trade, rather than as a regulatory burden or asset class in its own right. Other parts of the White Paper focus on the importance of various trade sectors to the UK economy but give little clue as to the shape of any future cooperation between the UK and the EU in relation to trade.

Ending the jurisdiction of the CJEU

What can't be curia'd must be endur'iad

What can’t be curia’d must be endur’iad

The Prime Minister has been very clear about ending the jurisdiction of the Court of Justice of the European Union (CJEU). Her primary focus when saying this is probably on core political areas such as immigration.

Yet there are numerous other areas, including IP, that probably don’t have the same political sensitivity, and where the CJEU currently has a role in adjudicating disputes. Assuming that the UK will continue to cooperate with the EU in areas such as trade, standards, IP, and research cooperation, some form of international decision-making body will be required, that may look very similar to the CJEU. For example, the UK may wish to cooperate with other EU countries in the area currently covered by the Euratom treaty, and this is likely to require a supervisory body. Currently, while the UK remains a party to that treaty, the body is the CJEU.

This issue also comes up in relation to IP. If a way is found for the UK to participate in the Unified Patent Convention, post-Brexit, it is likely to involve either CJEU jurisdiction or something very similar. Similarly, if the UK is to continue as a member of the pan-EU trade mark and design systems, something of this kind will be required.

There are hints in the White Paper that the UK Government may “get” this point, but they are so subtle and unspecific that it requires a degree of faith to believe that they exist. In particular, though the White Paper refers to ending CJEU jurisdiction, it spends several paragraphs discussing the benefits of international dispute resolution mechanisms and the likely need for such mechanisms in the UK’s future relationship with the EU:

2.3 …We will bring an end to the jurisdiction of the CJEU in the UK. We will of course continue to honour our international commitments and follow international law.

2.4 We recognise that ensuring a fair and equitable implementation of our future relationship with the EU requires provision for dispute resolution.
2.5 Dispute resolution mechanisms ensure that all parties share a single understanding of an agreement, both in terms of interpretation and application. These mechanisms can also ensure uniform and fair enforcement of agreements.

2.8 The UK already has a number of dispute resolution mechanisms in its international arrangements. The same is true for the EU. Unlike decisions made by the CJEU, dispute resolution in these agreements does not have direct effect in UK law.

2.10 …The actual form of dispute resolution in a future relationship with the EU will be a matter for negotiations between the UK and the EU, and we should not be constrained by precedent. Different dispute resolution mechanisms could apply to different agreements, depending on how the new relationship with the EU is structured. Any arrangements must be ones that respect UK sovereignty, protect the role of our courts and maximise legal certainty, including for businesses, consumers, workers and other citizens.

It is possible to read into these words an acceptance, for example, of the CJEU (or a similar body with a face-saving, different name, perhaps) having a limited, supervisory jurisdiction over the Unitary Patent, as a form of dispute resolution mechanism over the “interpretation” of the UPC, particularly when combined with the Government’s comment about the UPC being part of the European Patent Convention, which is a non-EU treaty.

sovereignIt may be a slightly tougher sell to fit continuing participation in pan-EU trade mark and design registrations within this thinking, as they clearly are part of the EU system. But perhaps in 2 years there will be a greater acceptance that close cooperation in EU trade-related institutions is in the UK’s interests and doesn’t prejudice the UK’s new-won “sovereignty”.

IP Draughts is relieved to see that IP is not the only area where the issue of post-Brexit CJEU jurisdiction is rearing its ugly head. It seems to be an issue across numerous other areas, including mutual recognition of civil judgments, nuclear research cooperation, aviation safety, and international standards generally. IP Draughts hopes that the Government will quietly find a way of ensuring continuing cooperation with the EU in these areas that side-steps the Government’s avowed intent to escape the clutches of the CJEU.

 

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