Category Archives: Legal policy

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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IP and Brexit

may1So, at last the UK Prime Minister has spoken. In a speech today, she set out her 12-point plan for Brexit. The point that seems most relevant to IP commercialisation is the tenth:

10. The best place for science and innovation

A Global Britain must also be a country that looks to the future. That means being one of the best places in the world for science and innovation.

One of our great strengths as a nation is the breadth and depth of our academic and scientific communities, backed up by some of the world’s best universities. And we have a proud history of leading and supporting cutting-edge research and innovation.

So we will also welcome agreement to continue to collaborate with our European partners on major science, research, and technology initiatives.

From space exploration to clean energy to medical technologies, Britain will remain at the forefront of collective endeavours to better understand, and make better, the world in which we live.

jojoThe UK’s Minister of State for Universities, Science, Research and Innovation, Jo Johnson MP, has recently added the job of IP Minister to his portfolio, which is a recognition that these subjects are connected. IP Draughts hopes that the above reference to collaborating with European partners on technology initiatives will be interpreted, within government, as including collaboration on European IP initiatives such as the Unitary Patent.

There are some signs that it might be. The government has announced its intention to ratify the Unified Patent Convention. That announcement was accompanied by the following, careful wording:

We will seek the best deal possible as we negotiate a new agreement with the European Union. We want that deal to reflect the kind of mature, cooperative relationship that close friends and allies enjoy. We want it to involve free trade, in goods and services. We want it to give British companies the maximum freedom to trade with and operate in the Single Market – and let European businesses do the same in the UK.
But the decision to proceed with ratification should not be seen as pre-empting the UK’s objectives or position in the forthcoming negotiations with the EU.

A possible stumbling block to UK participation in the UPC post-Brexit is the requirement for participants to recognise the supervisory jurisdiction of the Court of Justice of the European Union (CJEU). This potentially runs up against the Prime Minister’s determination, albeit focused on other areas, for the UK to cease to be subject to the CJEU. As she put in point 2 of her speech today:

2. Control of our own laws

That means taking control of our own affairs, as those who voted in their millions to leave the European Union demanded we must.

So we will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain.

Leaving the European Union will mean that our laws will be made in Westminster, Edinburgh, Cardiff and Belfast. And those laws will be interpreted by judges not in Luxembourg but in courts across this country.

Because we will not have truly left the European Union if we are not in control of our own laws.

Thus, there appears to be a conflict between the Prime Minister’s desire to collaborate with EU countries on science and technology (assuming this extends to the legal protection of science and technology through IP rights such as the UPC) and her desire to escape the jurisdiction of the CJEU.

Some commenters have assumed the worst and concluded that this makes post-Brexit, UK participation in the UPC (and, for that matter, participation in pan-EU IP rights such as trade marks) impossible.

There is, however, a potential way through this tricky issue, if there is the political will to pursue it. Our former IP Minister, the astute Baroness Neville-Rolfe, caused the following statement to be added at the end of the announcement about ratification of the UPC:

Notes to editors
The UPC itself is not an EU institution, it is an international patent court. The judiciary appointed include UK judges.

This point was repeated by the new IP Minister when he gave evidence to the House of Commons’ Science and Technology Committee last week. In IP Draughts’ view, it is a coded signal to the Brexiteer faction within government, and it is reasonable to extrapolate from this slightly obscure statement as follows:

  1. The political objective of “taking back control” by removing the jurisdiction of the CJEU is concerned with how domestic UK laws are made and interpreted, as distinct from cooperation on international trade.
  2. The UPC is an add-on to the European Patent Convention, which is separate from the European Union. It forms part of the UK’s arrangements for cooperation on international trade.
  3. The main courts of the UPC are being established separately from the CJEU and will include British judges (and indeed a retired British judge is leading the recruitment process).
  4. Yes, the UPC will involve a supervisory CJEU jurisdiction, but this should be viewed as a hybrid arrangement concerned with international trade and not part of EU membership. In other areas of international trade, the UK accepts the jurisdiction of international bodies (eg arbitration of WTO disputes) and this is not considered to damage national sovereignty.

dsbThere are some technical weaknesses in these points (which IP Draughts prefers not to dwell on, as it will only muddy the case), but the broad thrust is a reasonably strong argument.

Ultimately, whether the argument is accepted by the government and argued for strongly will depend not on its detailed, technical merits but whether it is acceptable to enough Tory MPs and right-wing newspapers. There are plenty of other areas of international trade where similar arguments are being raised. For example, representatives of the Law Society and English Bar made similar points about the mutual recognition of court judgments in the UK and EU, post-Brexit, when they gave oral evidence to the House of Lords’ Justice Sub-Committee recently.

IP Draughts hopes that, in Brexit negotiations, the international trade card, and the protecting science and technology card, will be used to ensure that there is continuing international cooperation on IP laws, despite the faint spectre of the CJEU lurking in the background.

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Lessons from visiting Parliament

commons-appearanceLast Wednesday morning, from 9.30 am, IP Draughts and Daniel Nelki of Wellcome Trust spent an hour answering questions from the House of Commons’ Science and Technology Committee, in relation to their investigation on the subject “Managing Intellectual Property and Technology Transfer”. A recording of the event can be found on the Parliament TV website here.

With recent experience of giving evidence to a House of Lords committee, IP Draughts knew roughly what to expect, which reduced the stress levels considerably. He is grateful to Iana Vidal of the Law Society’s public affairs team, who chaperoned him during both of his recent visits to Parliament. Daniel had his own chaperone, from the Wellcome Trust’s public affairs team. IP Draughts wonders how many people give evidence to Parliamentary committees without such a supporter. He suggests that the Parliamentary authorities should ask witnesses whether they will be accompanied, and offer such a service to those who attend on their own, including collecting them from outside Parliament, guiding them through security, escorting them to the committee room, and making conversation with them until they are called in to be grilled.

The committee rooms in the Palace of Westminster are on the second floor, all overlooking the river. Next to them is a corridor, several hundred yards long, with an entrance half-way down. To the left of this entrance are the Commons’ committee rooms, many of which are named after former Prime Ministers. To the right, the Lords’ committee rooms. The rooms themselves (or at least the two IP Draughts has seen) are Victorian, wood-pannelled, tall-ceilinged, and well-designed for public conversation.

IP Draughts learnt several new things this week about Parliamentary committees, including:

  1. The importance of the chairman setting a relaxed tone to proceedings. From this witness’s perspective, Stephen Metcalfe MP did a good job. Last month, Lord Saville did his best, and came out to speak to the witnesses before the hearing, which was appreciated, but he was rather ‘hands off’ and remote.
  2. Elected MPs are more engaging than members of the House of Lords.
  3. But some members of the House of Lords are more focussed on the core issues at hand than some members of the Commons, and more familiar with the subject-matter. A few of the questions that IP Draughts was asked last week were, shall we say, peripheral to the subject of university/industry collaborations.
  4. Unlike the Lords’ proceedings that IP Draughts attended, where the questions were set in advance and written down, in the Commons’ committee the witnesses had no advanced notice of the questions. This has some advantages of spontaneity, but it risks gaps emerging, where key questions are not asked by anyone. With hindsight, IP Draughts regrets not being asked about Dame Ann Dowling’s assertion that negotiations over IP are a major source of frustration among all the players – particularly industry and academics – other than the TTOs themselves. She gave evidence immediately after IP Draughts’ session finished and repeated this contentious point. Fortunately her fellow witness, Professor McMillan, gave a different view on this issue (as he did in his written report to HEFCE).

dowlingThe other main point that IP Draughts learnt, and he is still recovering from this insight, was that after the evidence hearing had finished, several MPs rushed to have a selfie taken with Dame Ann Dowling. No-one asked IP Draughts for a selfie.

If you watch Dame Ann’s evidence, you will see one of the committee members asking her, a little sycophantically, whether she can remember all the initials and qualifications that appear after her name. No-one asked IP Draughts this question.

While he cannot compete with Dame Ann’s academic and professional eminence, for the record, IP Draughts received in the post this week a certificate from the European Union Knowledge and Technology Transfer Society stating that IP Draughts has been awarded the title of Expert. One of IP Draughts’ partners reminded him that, according to a former Lord Chancellor, “we have had enough of experts“, and that he might want to keep quiet about this EU qualification.

 

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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.

 

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