Category Archives: Legal policy

Big data, big policy decisions

First of all, thanks to the many readers who have commented on the last posting on this blog, which ruminated on its future. Your comments were very helpful (and also very kind). IP Draughts has not yet taken any major decision, and for the time being will continue as before.

Today’s theme is “big data” and the policy decisions that accompany it (not them, please!).

IP Draughts has come across this subject in several contexts recently. There is health data, such as that held by the UK National Health Service (NHS) about its patients. Several of our clients have been involved in licensing-in or licensing-out such data, whether as a hospital, university or start-up technology company. These activities can raise some significant data protection issues, but fortunately several members of our team have become very familiar with this area of law, including Francis Davey and Stephen Brett.

On the public stage, there have been well-publicised initiatives to mine such data. Lord Drayson recently raised £60 million from investors on the AIM market, for his company, Sensyne Health, which has entered into agreements with several NHS Trusts. He is reported as saying:

The NHS has a “responsibility to society” to make money out of patient data rather than allowing the profits to be captured by US technology companies…

[there is] an “ethical imperative” to use anonymised data to improve care.

The national focus on big data is not confined to the health field. So-called geospatial data is also under the spotlight. In last Autumn’s Budget, the UK’s Chancellor of the Exchequer announced the formation of a Geospatial Commission, which would “maximise the value of all UK government data linked to location, and to create jobs and growth in a modern economy.” More recently, the government has declared:

From emergency services, transport planning, and 5G networks, to housing, smarter cities and drones – the UK’s geospatial infrastructure has the potential to revolutionise the UK’s economy.

The government is currently recruiting for members of this commission and for the civil servants that will support them. The commission will set a strategy for commercialisation of the nation’s geospatial data, working with the main agencies that currently hold the data, including the Ordnance Survey and the Land Registry.

National initiatives spawn national policies and codes of practice. Where personal data is involved, and where the custodian of the data is a public body such as the NHS, documents of this kind are perhaps inevitable. The latest one to cross IP Draughts’ desk is called “Initial code of conduct for data-driven health and care technology“. It sets out “10 key principles for safe and effective digital innovations, and 5 commitments from the government to ensure that the health and care system is ready and able to adopt new and innovative technology at scale.” The document’s introduction explains the government’s underlying thinking:

Today we have some truly remarkable data-driven innovations, apps, clinical decision support tools supported by intelligent algorithms, and the widespread adoption of electronic health records. In parallel, we are seeing advancements in technology and, in particular, artificial intelligence (AI) techniques. AI is being used on this data to develop novel insights, tools to help improve operational efficiency and machine learning driven algorithms, and clinical decision support tools to provide better and safer care.

This presents a great opportunity, but these techniques are reliant on the use of data that the NHS and central government have strong duties to steward responsibly. Data-driven technologies must be harnessed in a safe, evidenced and transparent way. We must engage with patients and the public on how to do this in a way that maintains trust.

AI, AI, Oh!

The 10 principles are not particularly surprising or radical for anyone familiar with GDPR and government policy generally; what is noteworthy is that the principles have been brought together and published for the circumstances of big health data. They are explained in more detail in the document itself, but the headings are:

  1. Define the user
  2. Define the value proposition
  3. Be fair, transparent and accountable about what data you are using
  4. Use data that is proportionate to the identified user need (data minimisation principle of GDPR)
  5. Make use of open standards
  6. Be transparent to the limitations of the data used and algorithms deployed
  7. Make security integral to the design
  8. Define the commercial strategy
  9. Show evidence of effectiveness for the intended use
  10. Show what type of algorithm you are building, the evidence base for choosing that algorithm, how you plan to monitor its performance on an ongoing basis and how you are validating performance of the algorithm

The possibilities of big data, artificial intelligence (AI) and algorithms seem to have captured the attention of the UK government. These developments should mean more work for IP and IT lawyers and for technology transfer managers –  and help to offset the likely negative effects for this part of the UK economy that will result from Brexit.

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Three enjoyable years

Today is the last day of IP Draughts’ 3-year term as chairman of the IP Law Committee of the Law Society of England and Wales. Tomorrow, Carolyn Pepper officially takes over. He wishes her all the best in the role over the next 3 years.

It sounds like a cliché to say that people grow into a role, but the phrase resonates with IP Draughts: as he performed the role, he developed the skills and confidence to perform it better.

It has been a real pleasure to work with a talented and dedicated group of people on the committee in pursuit of a common cause. IP Draughts also enjoyed working with others, including:

  • some talented and committed people at the Law Society, including our policy adviser, and former committee secretary, Lauren Rabaiotti
  • representatives of other IP professions, including the IP Bar Association, CIPA, CITMA, the IPLA and the IP Federation
  • representatives of the UK Intellectual Property Office and other government departments and agencies, including some representatives of the Ministry of Justice.

Among many highlights were having the opportunity to give oral evidence to committees of the UK Parliament:

  1. Together with Matthew Harris of the IP Law Committee, and Vicky Salmon of CIPA, IP Draughts gave oral evidence to the House of Lords’ Public Bill Committee that considered the Bill that eventually became the Intellectual Property (Unjustified Threats) Act 2017, and negotiated changes to the text of the draft Bill with representatives of the Law Commission and the Parliamentary Draftsman’s office.
  2. Together with Daniel Nelki, then in a senior role at Wellcome Trust, he gave oral evidence to the House of Commons’ Science and Technology Committee, in relation to its inquiry into technology transfer.

Now, IP Draughts would like another public/legal role that will make use of the chairing skills that he developed with the IPLC, and the legal skills that he has developed over the last 39 years. If you hear of anything, please let him know…

 

 

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Unitary Patent – the UK removes the first veil

For the last year or more, talking to the UK government about Brexit and IP has been a one-way conversation. The UK IP professions have worked hard to agree common positions on what they would like the UK IP system to look like, after Brexit. An important part of the debate has been how far the UK will continue to participate in, or be aligned with, European IP systems. Papers have been written on this subject and supplied to government officials, and meetings have been held with those officials.

But – and IP Draughts doesn’t blame the officials for this, it reflects the political situation they have been in – the meetings have largely consisted of the professions explaining their positions, and government officials nodding wisely and refraining from making any comment whatsoever about how closely the UK wishes to be aligned with the EU. To do so has risked making political statements. For example, many models of alignment would involve the UK accepting the jurisdiction of the CJEU, and avoiding such jurisdiction has been one of Theresa May’s red lines.

Now, at last, with the publication of its White Paper, we are seeing some tantalising glimpses of the UK’s negotiating position on IP and other subjects, as the government starts its dance of the seven veils.

An area that is of particular interest to IP Draughts is the unitary patent, the unified patent court (UPC) and the UPC Agreement. The UK has ratified the UPC Agreement, and has taken out a lease on some rooms in an office block in central London, which will be the UK court. The UK government’s position has been that as long as the UK remains in the EU, it will continue to participate fully in the UPC. But the UK government has previously refused to state whether it wishes to continue as a participant in the system after Brexit or how this might be achieved. “That is a matter for future negotations” was about as much as anyone in government was prepared to say.

Last Autumn, IP Draughts coordinated a joint note from the IP professions to government on Brexit and IP. It was eventually sent to the IP minister and others in government in late December 2017. The note was brief and high-level, targetted at people outside the UK Intellectual Property Office. More detailed papers on IP topics had already been submitted to the UK IPO.

On the UPC, the note included the following recommendations:

…the Government should provide legal certainty regarding the UPC, and now do the following:
(a) confirm that it is the UK’s intention to stay in the UPC, and that the UK is prepared to abide by the terms of the UPC Agreement, following Brexit;
(b) work towards the coming into effect of the UPC as soon as reasonably practicable in collaboration with other UPC Member States; and
(c) work with other UPC Member States and EU institutions to ensure there are no legal or practical obstacles to UK participation in the UPC and the Unitary Patent, following Brexit, on equal terms with other Member States.

The objectives should be (i) continuation of the Court in London; (ii) continued involvement of UK national judges; and (iii) continued rights of participation of legal professionals qualified and based in the UK in all parts of the Court’s procedures on the same terms.

The part of the White Paper dealing with the UPC seems to be consistent with the above position, and this is to be welcomed. Paragraph 151 of the White Paper includes the following statements (colour added):

The UK has ratified the Unified Patent Court Agreement and intends to explore staying in the Court and unitary patent system after the UK leaves the EU. The Unified Patent Court has a unique structure as an international court that is a dispute forum for the EU’s unitary patent and for European patents, both of which will be administered by the European Patent Office. The UK will therefore work with other contracting states to make sure the Unified Patent Court Agreement can continue on a firm legal basis.

The bit in red is perhaps more tentative than one might wish to see (“intends to explore”), but at least it shows a good direction of travel.

The bit in blue we can ignore – it is directed to Eurosceptics who may be concerned about the residual jurisdiction of the CJEU, and seeks to divert attention from this point by making the legitimate point that for most practical purposes it will be the UPC court that decides matters.

The bit in green adds little to the bit in red, other than to say that the UK will be talking to other EU states about how the UPC Agreement can lawfully continue – in practice, an amendment to the text will be required if the UK is to continue to participate.

So, there is not much meat on how this miracle will be achieved, but at least the government is finally saying that it wants to achieve it. IP Draughts hopes that the UK IPO will now have a mandate to start, and actively pursue, negotiations with other member states and with the European Commission on these points.

According to IPKat, the a spokesman for the UK IPO has clarified what the IPO will be doing in light of the White Paper:

The UK intends to stay in the Unified Patent Court and unitary patent system after we leave the EU. The UPC and unitary patent project are an important means of simplifying the protection of innovative products throughout Europe. This Agreement sets the bar for the level of constructive cooperation that the UK seeks with European partners in the future.

UK participation in the UPC and Unitary Patent will extend the benefits of these systems to businesses operating in the UK.

The UK will work with our European Partners to ensure the Unitary Patent and Unified Patent Court continue on a firm legal basis. This will need to reflect the change in the UK’s status as we cease to be an EU Member State, which will require negotiations with our European Partners. We look forward to beginning those negotiations with our European Partners so as to ensure the continuing success of this new system.

So, things are moving at last. Let’s hope the IPO is able to negotiate a solution that enables the UK to participate fully after Brexit, and retain the life sciences part of the central division of the court in London.

 

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Chairing the IP Law Committee

Last week, IP Draughts attended his last meeting as chair of the IP Law Committee of the Law Society of England and Wales (the national bar association for English and Welsh solicitors). The appointment was for 3 years; he is now time-expired and ineligible for re-appointment as chair.

After last week’s meeting, we held our annual dinner. It was a pleasant affair, made more special for IP Draughts by the kind words he received from other members about his time as chair. Some of these words had been recorded in a framed poster – a kind of Wordle of quotes – that was presented to IP Draughts and now sits on his office wall. He is very grateful for the sentiments and for the poster.

He is also grateful for the support that he has received during the last 3 years, from both members of the committee and Law Society officials. Particular mention should be made of Lauren Rabaiotti, now our policy officer, but once our committee secretary. Her enthusiasm, diligence and aptitude have helped to make the chairing role a smooth one. She is increasingly taking the initiative in guiding the committee to actions – not an easy task in such a specialised area of practice.

He would also like to thank James Love and Michelle Blunt, who are retiring from the committee, for their expert and helpful contributions over several years.

Here are some brief thoughts on what works, in IP Draughts experience, when chairing a body of this kind.

  1. Enthusiasm. Leading by example, with enthusiasm and commitment helps to encourage everyone to give up their time to the cause.
  2. Tone. Left to their own devices, some IP lawyers can be rather critical. Setting the right tone, particularly at meetings, helps people to be relaxed and engaged, and willing to speak up. In IP Draughts’ view, a little irreverent humour is a positive contribution. Avoid having meetings that are like an appearance before a hostile judge.
  3. Balance speaking and listening. It is legitimate for the chair to start off debates by stating his or her views, but then he or she should actively listen to the other members, and encourage contributions, particularly from quieter members.
  4. Respect. The committee has some national, or even international, expert in their subjects. You don’t have to be the best at everything – let them take the lead, but within a framework that you help to set. Be respectful of their expertise and that of support staff, and patient but politely insistent in urging them to meet deadlines and deliver work product.
  5. Personal initiatives. While you don’t have to lead every initiative, leading on some where you have expertise helps to demonstrate commitment and set tone. You have an opportunity as chair to develop your own agenda; within reason, this is a good thing rather than an abuse of power.

IP Draughts stated, when he became chair, that he wanted to bring IP closer to the centre of the Law Society’s thinking. He believes he has had some success with this aim. The presence of the incoming President of the Law Society, Christina Blacklaws, at last week’s dinner, was an illustration of this success. He also thinks he has had some success in increasing cooperation among the various IP professional bodies in the UK, including those representing IP barristers, patent attorneys and trade mark attorneys. Our joint note on Brexit and IP, delivered to government last December, was an example of this cooperation.

An issue that he has noticed, but not yet found a complete solution to, is how to encourage new and younger members of the committee to speak up more and give their views. Law is still a hierarchical profession, and we have some very experienced and talented members on the committee. It can be a little daunting for younger members to give their views in such company, despite IP Draughts’ best efforts. Sometimes, members only really “come on stream” in their second 3-year term of office. This may be a symptom of a wider issue in the legal profession, rather than something that can easily be fixed within one committee, though this does not excuse us from trying to mitigate it where we can.

IP Draughts wishes the best of luck (not that she needs it) to his capable successor, Carolyn Pepper, and he looks forward to continuing on the committee, as a co-opted member, for a further (but final), and hopefully not too arduous, 12 months.

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