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Yesterday saw the formal appointment of another patents judge to the Court of Appeal. The Lord Chief Justice's Court was packed with other judges, members of the Bar, Solicitors and Patent and Trade Mark Attorneys welcoming Sir Christopher Floyd's elevation to the Court. The Lord Chief Justice and Henry Carr QC (11 South Square, Sir Christopher's former chambers) gave strong speeches of support; the LCJ recording his past service amongst other things no Bar Committees and the Copyright Tribunal; Henry Carr added congratulations on Sir Christopher escaping having to handle "on his
own" rafts of Smart Phone litigation (eg here and a selection here), where he was facing multiple large teams of
practitioners putting forward their complex arguments, also adding just a careful and restrained sprinkling of anecdotes -- no doubt mindful of future appearances. Sir Christopher will be a sad loss from the Patents Court; he will be a valuable addition to the Court of Appeal following the retirement (or part retirement) of Sir Robin Jacob. His appointment is a reminder of the calibre and strength of UK judges in the intellectual property field, keeping the UK Courts as an attractive forum for both UK and international litigation -- a point alluded to by the LCJ, perhaps a basis on which the UK judiciary should be awarded the Queens Award for services to export. Congratulations.
Yesterday was a historic day. The Agreement for a Unified European Patent Court has been signed, after months of wrangling. Several European Presidents have sought it as a feather in their cap, and have not quite made it. But at last political energy has overcome commercial misgivings -- at least to get a signature. We still have to wait for the agreement to be ratified - by 13 Member States, including France, Germany and the UK (the three largest patent filing countries in the EU). Poland (amongst a small group of other countries) have not yet signed, believed to be because they have a report that it does not make good economic sense. Pressure will grow in the UK for a full economic impact assessment to be carried out before ratification.
The Agreement provides for a "single" court for Unified Patents (Regulation adopted in 17 December 2012 -- but with still some significant hurdles like how it is financed) and for EPC Patents, unless they are opted out. The Court will have national and, for some groups of countries, regional divisions, as well as a central division divided between France, Germany and the UK.
The procedural rules are substantially drafted, and will be subject to consultation shortly. One area which is sure to crop up is the impact of the arrangements on legal professional privilege: companies are concerned that these could put them at risk of discovery applications in relation to the USA, to such an extent that, unless this is resolved, some companies are considering only applying for national patents in Europe.
The aim is to have a relatively short and low cost procedure, which will make decisions applicable throughout the EU. Good for EU wide businesses, but could be a deteriment to businesses primarily operating in one Member State. More details and comments later.
This afternoon, Brussels
and Washington announced that the EU and the US are intending to
launch negotiations on a trade and investment agreement which could
result in the biggest bilateral trade deal ever negotiated. The
negotiations will commence once the relevant internal procedures for
approval have been completed.
release provides a broad outline of the three main areas which
the parties are seeking to negotiate; market access, regulatory
issues and non-tariff barriers and addressing shared global
challenges and opportunities in the 21st century. Changes to the
regulatory frameworks in particular could potentially have a
significant impact on technology and life sciences businesses. If the
EU and US can find common ground on standards and procedures and
reach regulatory compatibility, for example in relation to
pharmaceuticals or medical devices, the need to comply with two sets
of regulatory approvals for products and the associated costs to
businesses will be reduced.
A joint statement from
United States President Barack Obama, European Council President
Herman Van Rompuy and European Commission President José Manuel
Barroso can be found here.
A new user guide to the Patents County Court has just been issued. You can access it here, on Courts Website.
The Court it should be emphasised is not just patents -- it does masses of other cases with as many as 80% of its cases in the last two years being on trade marks, passing off, designs and copyright, and include licensing disputes and other related matters
Nor is it just "county": it will sit anywhere in England and Wales and will hear cases in which damages could be as high as £500,000. It has heard cases between individuals and small and medium sized businesses -- which is its primary focus -- but also multi-nationals, such as Unilever and SC Johnson & Son.
The guide provide you with vital information about the court and how to use it.
The Government has innovation and intellectual property protection in its sights again. Not however like tax avoidance: more ideas for promoting protection are rolling off the stocks.
Vince Cable, the Business Secretary, has announced a package of measure to be introduced next year, especially to help young and innovative companies. Amongst them will be a fast track to trade mark protection and patent protection.
A trade mark will be registrable in a mere 5 days! One has to ask whether this is a good investment of effort, although it will be cheered by small businesses. The much greater issue in the trade mark field is of trade mark “clutter” – the fact that there are so many trade marks registered by the Community Trade Mark Office (which of course also applies to the UK) for goods and services for which they are not used which means that it is often a long road to finding a trade mark which is free of obstacles to register. To be fair the UK IPO is currently consulting also on this issue after some apparent disappointment of a report commissioned earlier this year, and the Max Planck Institute's report in 2011 (Allensbach Study -- see para 3.5, page 39: 21% see a problem, 79% do not see a problem or express no opinion -- a view which many professionals say conceals the fact that trad mark clearnace has become expensive and difficult).
The patent process can be shortened to 90 days (for a fee) – compared with 4½ years in the UK (and much more in the European Patent Office). The UK IPO already will grant patents in a year, on request and a favourable wind. But 90 days does seem exciting, especially in the era of the Patent Box (the regime for obtaining income tax relief for profits products or services for which there is a UK or EPO patent registered).
Hot on the heels of the Information Commissioner (see below), the European Commission has anounced a public consultation to collect views about how business and research know-how is protected across the EU (perhaps with one eye on a New Year's Resolution).
About time, some might say. As the Commission itself has noted, keeping vaulable information secret is often the only or most effective way that businesses have to protect their intellectual property - after all, not every good idea is patentable. The Commission has picked up concerns regarding the effectiveness of legal protection against the misuse of confidential information, which is currently only regulated at national level (without harmonisation across the EU), and decided to analyse the situation.
Changes to the laws on the protection of confidential information are likely to be highly relevant to the technology sector. You can follow, and contribute to, this consulation on the Europa website between now and 8 March 2013.
Primarily aimed at fast growing and medium sized companies but open to all employers, under an “owner-employee” contract employees will be given between £2,000 and £50,000 of shares that are exempt from capital gains tax. In exchange, the employees give up their UK rights on unfair dismissal, redundancy, and the right to request flexible working and time off for training, and will be required to provide 16 weeks’ notice of a firm date of return from maternity leave, instead of the usual 8.
Will this go the same way as the no-fault dismissal regime for micro-businesses? It depends on whether this proposal is seen as an easy way for employers to circumvent valuable employee rights and how the tax exemption would effect the employee share schemes already found within start up and tech businesses.
Following announcements regarding employment law reform, this September BIS launched a new inquiry into women in the workplace, covering pay, gender stereotyping in particular industries and the promotion of part time work amongst other topics.
Whilst prominent female role models exist at a senior level, research by the e-skills UK notes women account for only 17% of IT and telecom professionals. This appears to stem from the low proportion of females studying Computer Science and IT subjects in Higher Education.
The scope for using "positive discrimination" to recruit and promote women is narrow. It applies only where there are two candidates who are “as well qualified”, a phrase undefined and unlikely to encourage to employers to use gender (or any protected characteristic) as the decisive factor in any decision for fear of Tribunal claims from unsuccessful applicants. An employer can, however, take other positive actions such as mentoring or encouraging female participation if it determines this reasonably necessary to address disproportionately low participation in the industry, any disadvantage(s) connected to a person's gender or any differing needs women may have in comparison to men.
If, as a 2009 report for Harvard Business Law, the female demographic is worth around $20tn in consumer spending, should tech companies look to grow their female workforce not just to promote equality but as part of understanding the valuable female economy? Or should the industry be more concerned as it could be identified as one where gender stereotyping is affecting women in their workplace?