The Prime Minister’s Kobayashi Maru test

As Star Trek fans know, the Kobayashi Maru is a test for star fleet officers that is unwinnable. Unless you “cheat” by reprogramming the test, as Captain James T Kirk did.

The Kobayashi Maru is a freighter that has sent a distress signal from the neutral zone. Responding to the signal by entering the neutral zone is likely to result in the USS Enterprise being destroyed and starting a war with the Klingon Empire. Ignoring the distress signal is likely to result in the destruction of the freighter and its crew.

It feels like the UK is going through a collective Kobayashi Maru, where every outcome of the Brexit test (sadly not fictional) involves a disaster. A good economic outcome (no Brexit) would involve betraying the trust of the electorate who voted for Brexit. The question they were asked may have been foolish, and they may not have understood the economic implications for them and others, but they were asked and they answered.

Some would say it is immoral for the political class to ignore the outcome of the referendum or to try to ask the question again, so soon, in the hope of a different answer. Whether or not there will be rioting on the streets, as one Brexiter suggested to IP Draughts, it seems likely that there will be widespread disillusion with the political class if the result of the referendum is not implemented. The effect on the democracy of the UK of cancelling Brexit would be profound and last for a generation. For want of a better term, let us call this societal impoverishment.

But implementing Brexit is also likely to be disastrous. The disaster will be economic rather than societal. IP Draughts’ rough-and-ready guess is that on average we will be 15% poorer for a generation, with the effects felt most by the people in deprived areas who voted for Brexit. Let us call this economic impoverishment.

For the last 18 months, the UK’s Prime Minister, Theresa May, has applied her leadership skills to the national Kobayashi Maru. Those skills are mostly fortitude, and a sense of honour. She lacks the creativity, people skills or unorthodox thinking that helped Captain Kirk win the test.

So she plods on with her solution, which is to try to mitigate the economic effects of Brexit. IP Draughts ventures an analogy that this is like offering the Klingon empire the USS Enterprise and all of its personnel in return for the safe return of the Kobayashi Maru and its people. This may not work, as the Klingons may welsh on the deal. The outcome is likely to be disastrous for the crew of the Enterprise, and it will result in a major Star Fleet asset being lost to the enemy, but at least it is honourable. Officer cadet May demonstrates her leadership skills, such as they are, and is appointed to a junior post in the ethics administration department at Star Fleet HQ.

Some politicians criticise the Prime Minister for not striking a better deal with the Klingon empire European Commission. But the reality is that the EU doesn’t want to strike a better deal for the UK, and sees no benefit in doing so. In the real world, there is no Captain Kirk in the UK government, and no creative solution that “wins” the test.

You are now on the bridge of the USS Enterprise. Captain May has initiated communications with the Klingon Empire, and there is no time to implement an alternative strategy. Do you go along with her solution, for want of a better one? Do you mutiny, forcing her to relinquish command, and abandon the poor sods in the freighter? Or do you go full speed ahead into the neutral zone and hope to get lucky in a free-for-all with the Klingon ships?

Breaking news: a message from the Romulan ambassador has reached the ship. He offers a “quick, massive, bilateral treaty” that will “really take you way, way into an exciting future”. A long term alliance with the Romulans could provide security and prosperity for generations to come. But he doesn’t think this treaty would be possible if the deal that Captain May has brokered with the Klingons goes ahead. Does this affect your decision?

 

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Solicitor ordered to repay £22M

First, a warning. This article has nothing to do with IP law. But the story it describes is shocking, at least to IP Draughts. It affects all of us who practise in a profession whose “brand” is based on honesty and integrity.

Three years ago, the Solicitors Regulation Authority closed down the law firm, Blavo & Co. Solicitors Limited, and placed restrictions on the practising rights of several of its staff. The firm’s managing partner was Mr John Blavo. From a search on the Law Society website today, it seems that Mr Blavo continues to be a solicitor but is not practising. The SRA website doesn’t appear to show any intervention in the case of Mr Blavo, though it does reveal sanctions against about a dozen of the firm’s staff. IP Draughts wonders why Mr Blavo was not subject to the same restrictions as other members of staff in his firm, and why he has been allowed to remain as a solicitor, in view of the facts described below.

On 21 December 2018, Mr Justice Pepperall’s judgment in the case of The Lord Chancellor v Blavo & Co Solictors Ltd & Anor [2018] EWHC 3556 (QB) was published. The judge ordered Mr Blavo to repay over £22 million that had been paid to the firm for legal aid work on mental health cases. In the words of the judge:

The shocking allegation at the heart of this case is that Blavo & Co. made dishonest claims for payment on the legal aid fund for thousands of cases where it was not entitled to any fee.

Elsewhere, the judge noted that:

…the firm grew rapidly and, by 2015, operated from 18 offices throughout England and Wales.

…at its height, [Blavo & Co] was the second or third largest legal aid firm in England and Wales.

…on the balance of probabilities, I find that the practice of making fraudulent claims on the legal aid fund was endemic at Blavo & Co.

The facts described in the case report are shocking, and on an industrial scale. But what strikes IP Draughts particularly is the chaotic way in which both the firm and the Legal Aid Agency (LAA) operated. The judge notes the evidence of LAA witnesses who, keeping an open mind at the outset of their investigations, considered it possible that the discrepancies between the solicitors’ files and the records of the LAA were due to errors on the part of the LAA. That this was a plausible prima facie explanation for the discrepancies is itself shocking.

The primary fault in a case like this must rest with the individuals concerned who made inappropriate claims for funding to the LAA, closely followed by the people who ran the firm and allowed this situation to arise. But others should share the blame.

To IP Draughts, this case has the fishy smell of the government seeking to reduce its management responsibilities, and reduce costs, with a policy decision to place legal aid work in the hands of a small number of factory-scale firms of solicitors. This reminds us of other areas of activity where the government does this, such as placing outsourcing contracts with firms like Carillion, now in liquidation. It also has echoes in the banking collapse of 2008, where some firms were perceived as “too big to fail”.

But we shouldn’t take comfort from this, as if blaming the government absolves the solicitors’ profession from its own share of blame. It is not the first time that a major legal aid firm has gone under. In the past, the SRA’s response to these types of events has been  to increase the requirements for solicitors to adopt formal processes. In IP Draughts’ view, this is only part of the picture, and can be counterproductive if applied in an unthoughtful way. Bureaucracies measure what can be measured. What is also needed is to reinforce the traditional ethos of the profession. This intangible quality can only be supported by creating and maintaining a common sense of purpose within the profession. This is a long-term project, appealing to hearts and minds, not spreadsheets.

IP Draughts has no information on whether Mr Blavo has the resources to pay £22 million to the Lord Chancellor, or meet earlier costs orders arising from the closure of his firm. But he is not holding his breath. In his view, this latest saga should make all of us reflect on what solicitors need to do to maintain or restore the trust between the legal profession and its “stakeholders” including clients and public funders.

 

 

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IP rights in geospatial data

Several strands of information come together. On 14th December was published the latest court decision in the long-running saga between 77M Limited and Ordnance Survey Limited.

77M is a private company that has developed and is commercialising a database of UK land and properties and has, or at some time in the past had, a licence from the UK Land Registry (HMLR) to access one of the latter’s databases.

The Ordnance Survey (OS) was formed several hundred years ago and was originally part of the army. Nowadays it is a company owned by the government. It is best known for providing high-quality maps of the United Kingdom. When IP Draughts was at junior school, he was taught about the the OS’s 1 inch to 1 mile (or 1:36,360) map. Since metrication in the UK in the late 1960s and 1970s, this set of maps was discontinued, and the closest equivalent has been the 1:50,000 map. In other words, like HMLR, OS has developed so-called geospatial data in relation to the UK.

The case linked above is a decision of Mr Justice Arnold, who rejected an application for summary judgment by OS. OS sought to have a claim by 77M rejected, that OS had induced HMLR to breach a contract under which it supplied property-related data from its database to 77M.

The arguments in that case are only of passing interest, and anyway the underlying facts are not fully explained in this interim decision. Arnold J noted that the contract in question was described as a “contract schedule” (suggesting to IP Draughts that it might have originally been part of a larger master services agreement, although this is not stated in the decision) and provided for a fee of £2,500 in return for undertaking certain searches. 77M argued that this was an “ongoing” contract, while OS argued it was a one-off contract. After reviewing clauses of a “lamentably badly drafted” contract that pointed in either direction, Arnold J declined to hold that OS’s case was so strong that it should get summary judgment. The interpretation of the contract should await full trial of the action.

The larger dispute between 77M and OS has been rumbling through the courts, and has not finished yet. An earlier hearing considered the question of when it was appropriate to transfer cases between the low-cost Intellectual Property Enterprise Court and the High Court.

Standing back from the case, what is going on? IP Draughts has no inside information about the case, but he is aware that the UK government is pressing ahead with plans to develop a national strategy to commercialise the UK’s geospatial data, much of which has been developed by government bodies and agencies, including OS and HMLR.

To help formulate this strategy, the government is forming a Geospatial Commission. The appointments of the chair and vice-chair were recently announced. The deputy chair is a former CEO of OS. The announcement refers to the commission’s role being to “drive the use of location-linked data more productively, to unlock up to £11 billion of extra value for the economy every year”.

Other documents identify OS and HMLR as some of the main custodians of this data.

IP Draughts wonders whether small, private companies that are already using UK geospatial data may compete with the government’s ambitious plans. This doesn’t necessarily mean that it is wrong for a government agency to terminate a commercial licence agreement, or for another government agency to encourage it to do so. IP Draughts doesn’t have enough information (geolegal data?) to form a view on this question. But it is curious that this case is rumbling on at the same time as the Geospatial Commission is being formed.

 

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Not much for IP in New Year Honours

The UK’s New Year’s Honours List for 2019 is published today. There are slim pickings for lawyers (other than those involved in “law and order”, i.e. the criminal justice system), and even slimmer pickings for IP lawyers.

The closest that IP Draughts was able to find to a bona fide IP specialist was David Gareth Watts, who has been awarded an MBE. The citation states that he is a business analyst at the UK Intellectual Property Office, and his contribution is summarised as “For services to the Economy, charity and Mental Health Services”. (What is it with the random distribution of capital letters?)

Congratulations to Mr Watts. The citation indicates that his contribution is wider than IP. IP Draughts has not been able to find much else about him. His LinkedIn profile (if IP Draughts has found the right one) is very brief.

Has IP Draughts missed anyone? He wondered about mentioning the knighthood for Professor Jonathan Montgomery, Professor of Healthcare Law at UCL, but it is rather a stretch; the prof is interested in ethics and regulation rather than IP.

IP Draughts acknowledges that there are many other areas of public life where contributions deserve to be recognised, and that IP law is a small part of the picture. But this field of law contributes significantly to the UK economy. The honours system is happy to recognise contributions to business from dozens of people whose jobs are as varied as florists and civil servants.  There are even a few entrepreneurs in technology-based fields, eg Stephen Coleman, CEO of Codebase, who has been awarded an OBE for “services to Technology Entrepreneurship”.

In a list with around 1,150 names, it is disappointing that there aren’t a few more names from the field of intellectual property law.

 

 

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