Wednesday, 20 June 2012

CIPA intellectual property debate

To London, for a debate on the motion: "This house believes that political pressure and a few loud business voices are making the IP systems in Europe less and less relevant to the needs of small enterprises". Organised by the Chartered Institute of Patent Agents, the motion was proposed by Michael Wilcox, a small businessman and serial inventor, and seconded by Vicki Salmon, one of a small number of people who are solicitors and patent agents (so use of the title "attorney" is certainly justified in her case). I remember a small passing-off dispute in which, fairly newly-qualified, she was on the other side - getting on for 20 years ago now. Opposing it were Sean Dennehey from the Patent Office, with whom I once spent a train journey after I encountered him on the Tube when I left my then-office one evening and naturally fell into conversation with the fellow-passenger carrying a souvenir shoulder bag from a patent conference, and James Nurton, editor of Managing Intellectual Property (and INTA Daily News, a publication rather closer to my heart given the coverage afforded to the Capital City Marathon four annual meetings ago, thanks to James).

Thanks to the combined efforts of First Great Western and London Underground, I arrived rather late, but the proposer had not started anyway. I was immediately put on my guard when I saw the screen was displaying a Microsoft PowerPoint window, as opposed to a slide-show in which the functional parts of the interface are removed ... Mr Wilcox admitted to a lack of facility with the technology. Oh, dear. But his story about how the patent system had failed him and his business, and small and medium-sized enterprises throughout the country, was well worth hearing. No matter how often one hears that a patent does not exclude others from using your invention, merely enables you (should you be as well-resourced as, say, Croesus) to sue those who infringe, it's worth being reminded. And applying for a patent puts the results of your research in the public domain, and vulnerable to being taken without permission: big business, he suggested, does little research, but picks up its new ideas from other people. He quoted Joshua Shapiro, whom he described as holding some senior position at IBM:
Large companies routinely infringe intellectual property of start-ups or individual inventors. They will not sign non-disclosure agreements to protect others’ IP. When shown relevant patents, they need to license, they literally say “Sue us”, knowing that deeper pockets trump a valid claim.
He also mentioned several other people from IBM, to demonstrate that big business alone had the ear of the law-makers. But I find that Mr Shapiro was no longer with IBM when he made that comment in this letter to the FT - so was he repeating something he said earlier, when he did work for IBM? It seems unlikely. And the comment is an observation, not a manifesto. So with the benefit of a little research, I find myself less well-disposed towards Mr Wilcox's argument than I was at the time. The fact that he simply ignored the need to keep to time, an essential feature of any debate (for the sake of fairness, apart from anything else) also told against him - though the chairman, Professor Sir Robin Jacob (who else could it possibly be?), should perhaps have been less lenient. As a friend remarked afterwards, he has mellowed.

Vicki's shorter speech (the chairman decreed that both speakers for should go first, like leader and junior in court) rehearsed the arguments against the EU patent and the uniform patent litigation system as it stands, and I must say they become more compelling the more I hear them. Whose interest will reform serve? But we hadn't heard much about anything but patents so far. Sean Dennehey preferred to take the motion apart, arguing that one could not possibly agree with the proposition that political pressure could make the system less relevant to small enterprises, because to do so would be to speak against democracy. No, Sean, with respect, to do so is to recognise the democratic deficit. After all, who voted for you? (I hasten to add that I would have done, given the chance.) James offered a great many statistics to support the proposition that small business makes considerable use of the various systems of protection, but seemed to assume that more patents, trade marks and registered designs was A Good Thing.

The chairman took the opportunity, before opening the floor to contributions, to observe (with the aid of props - a boxful of metal bolts and channels) that Ancon Ltd v ACS Stainless Steel Fixings Ltd [2009] EWCA Civ 498 (16 June 2009) had been fought on a conditional fee arrangement, which he thought might offer one solution to the problem of the cost of patent litigation - but not, I think, for small-scale legal practitioners: you need to be able to carry the people doing the work for which you will be paid only after the case is over, and then not necessarily in full. You can accumulate an awful lot of work in progress with no  immediate prospect of being able to bill it: would it be secure enough to impress the bank, I wonder?

A speaker from the floor, Sabine McNeill of 3D Metrics, drew attention to Shift Happens which she suggested members of the audience should find using Google (other search engines, I should add, are available). I hadn't seen it, so I did, and for the benefit of readers who also haven't seen it I'll embed it below. I'm not sure what it proves as far as this debate was concerned, and for all that the information in it is interesting it's interesting in a tabloidy sort of way ... Sabine stressed how keeping trade secrets confidential is a better to protect your intellectual property (in the widest sense) than applying for a patent and revealing what you have invented to the world at large. This is not necessarily the advice dispensed by the profession, which makes its money from filing applications: "Five patent agents", she said, "would take the money I don't have." A short discussion ensued about the ethics of professional advisers taking an equity stake in lieu of fees: Sir Robin was hard-pressed to see where a conflict might arise, others disagreed, no-one (except perhaps Tibor) seemed to know what the rules say, and Dennis Crouch who happened to be in the audience said that US rules allowed lawyers to take stakes in clients. (I would comment on what the SRA says, but their website won't load so I can't consult the new handbook. Oh, for the days when the Guide to Professional Conduct was a book.)

Mr Justice Arnold's contribution to the debate was to say that copyright also needed to be considered, that the 1988 Act was technologically obsolescent and so much amended under the European Communities Act as to resemble a patchwork quilt - great stuff. He was unimpressed by the Regulatory Reform Bill's attempts to hack it about still further, though restating the exceptions chapter ("permitted acts", surely?) on the basis of the Information Society Directive wasn't a bad idea. (But still no-one had really mentioned trade marks, and I had missed the chance to have my say - even though I was prepared, as I did the other way round at my first Party Conference in - when would that have been? 1978? - to deliver my "for" speech against the motion.)

One other contribution I noted (which is not to say that nothing else was said that was worth paying attention to): Tibor on the Z sections of the Registered Designs Act - "more suitable for labelling sewing machine parts". Excellent stuff. The chairman asked for a show of hands, decided that a count was needed, announced that there were "about 35" in favour, and declared the motion carried in time for the kick-off in the England v Ukraine match, though like most people he stuck around for refreshments afterwards.

Discussion of new copyright legislation was a little off-piste, but it made me wonder whether anyone remembers what it was like back when the 1988 Act was being created. It was very difficult to find enough parliamentary time for the legislative behemoth, which set a record (probably since surpassed) for the number of amendments tabled to it, so it's hardly surprising that the same excuse is trotted out today. Government is the art of the possible (isn't it?) - actually, it's politics that was said to be the art of the possible, by Bismarck no less, but I think the point still stands - so government will try to make necessary amendments to intellectual property laws by using delegated powers, implementing EU directives and making rules to patch up the floundering vessels. I don't expect to see another copyright act in the near future.

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