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Thursday, 9 December 2010

A message to the Hargreaves Review team

On Tuesday, in "Five Go For Growth", the IPKat commented on the selection of the team of five which has been picked to assist Professor Ian Hargreaves in the forthcoming review of the UK's intellectual property system. That post has attracted some none-too-favourable responses, as well as a comment posted by one of the five, Tom Loosemore, who says

"I've talked to a couple of IP lawyers, albeit no-one from private practice. Who might you suggest I meet?"
The IPKat is happy to make as few suggestions but, before he does so, he thinks it might be a good idea to state a few brief points.
* IP is a vast subject and even a large team of acknowledged experts covering all aspects of IP protection and commercialisation would be hard-pressed to cover it adequately. The Kat assumes that the five are chosen not because of their specific expertise or understanding of IP but because of their ability to analyse objectively the issues covered by their brief and, having discussed them together, to make comments and proposals that are related to the discharge of their review functions;

* No-one wants this review to fail. If it produces any thoughts, comments or observations that are of any value, we are all the beneficiaries of it;

* Given the limitations imposed by time and money, the review is almost inevitably bound to make its recommendations in general terms. However, every industrial and commercial sector in the UK is a special case and its IP rights mean completely different things within it.  Thus, while the rules of trade mark law for example are the same for pharmaceutical manufacturers, fashion houses and fast-food outlets, their manner of exploitation and role within a business plan are so different that suggestions which benefit trade in one sector may be neutral or deleterious in another.  The same applies with patents: the digital and telecoms sectors are awash with protected innovation and it is effectively impossible to launch a new product or service without serious risk of infringement, whereas in sectors like civil engineering the situation is quite the opposite. This is perhaps the main reason why IP reviews are not well received, however well thought-out they might be;

* The European Union's single market is paved with increasingly harmonised intellectual property rights and there is a widely-held notion that any shifts in normative IP law must take place on a pan-European level or not at all. Likewise, since European and national competition rules are harmonised, ways of commercialising IP are likely to be measured against the same yardstick of acceptability. This being so, it may be argued that the review team's best bet is to concentrate on examining ways that British businesses can achieve better growth under the existing rules rather than look at changes in the rules themselves (though that should not stop the review team pointing to areas of law which need attention, if necessary on a pan-European basis);

* The review team should not be surprised at hostile and cynical responses from active members of the intellectual property communities. Starting with the Nicholson Report in the 1980s and running past the Gowers Review and the European Commission review of pharmaceutical patents to the ill-fated experiment with the Strategic Advisory Board on Intellectual Property Rights (SABIP), we have been treated to what feels like an almost never-ending series of reviews, which have generally added up to nothing or have recommended the predictable. We have for example learned that small businesses find it more burdensome to acquire and litigate IP rights than to big, well-funded ones, for example, and we have found that intellectual property offices and courts run more efficiently when they are better managed and operate under more flexible rules; that specialist IP judges handle complex IP litigation with less difficulty than those who have never experienced the field before; and so on. In short, the IP communities are quite review-weary and wonder if these exercises are worthwhile;

* The IP communities are sometimes characterised as a sort of mafia of greedy, self-seeking capitalists intent on milking profits through unfair legal privileges conferred by their monopoly rights. The IPKat hopes that the review team will not allow this sentiment, which is increasingly pervasive, to percolate into its thinking. IP rights owners are often surprisingly sensitive to the dangers of over-protection since, while they own rights themselves, they are also subject to limitations imposed on them by the rights owned by others;

* Further to the previous point, the appointment of one of the review team is seen by some of this blog's readers, if my recent crop of incoming emails is anything to go by, as a statement of hostile intent towards IP protection, given his writings on the subject. The person in question is a respected and stimulating thinker on IP issues and I personally have no doubt that he is capable of performing an objective review of a subject in keeping with his brief and of formulating, together with his colleagues, perfectly sensible recommendations. However, some of the things he has said about IP rights have worried some people that his appointment is based on the positions he has argued, rather than on his scholarship and ability. This is an unfortunate burden for the review team to bear.
Having said that, to whom would the Kat recommend that Tom speak?  Good question.  Without having consulted any of the following, and hoping that I am not embarrassing any of them, I think that their opinions, their perspectives and their experience might enrich both Tom and his colleagues, as indeed they have enriched the understanding of this blogger over the years.  Not all are IP lawyers in a classical sense, but all are involved at the point at which IP rights are crucial to the operation of a business, an investment opportunity or a consumer's decision-making process.  I'd suggest:
* Deborah Prince: head of legal at Which? and previously in-house at Tesco -- a no-nonsense approach to IP, whether you like it or not;

* Melanie Hatton: head of Legal at Latitude Digital Management, she has good insights into how IP/IT issues trickle down into the workplace;

* Robert Pitkethly: former patent attorney, now Tutor in Management, Said Business School, Oxford -- hugely respected for his objectivity, clarity of thought and patience;

* Paul Leonard: previously Director of the Intellectual Property Institute, Paul's hands-on industrial experience  of working with IP spans the sciences and design for the built environment;

* Shireen Smith: a private practitioner specialising in internet-related issues, she is an effective exponent of the social media as a means of practice development;

* Ben Challis: barrister, visiting academic, author of Music Law Updates and General Counsel, Glastonbury Festivals Ltd.

* Mark Anderson: a solicitor in private practice who has a remarkable sensitivity to the way that contracts facilitate technology transfer and the sharing and exploitation of intellectual property;

* Sheila Henderson: in-house IP counsel with Richemont, formerly of Reckitt Benckiser, she can contrast the way branding and trade mark protection works in the luxury sector (where the brand virtually is the product) and for mundane household goods.

* Dids Macdonald: originally a designer but now CEO of ACID -- Anti Copying in Design, Dids has helped a large number of small businesses to help themselves more effectively in their attempts to grow IP-based operations.
There are very many others who are not on this list only because I've run out of time to add them. Readers may want to add names of their own. There are a lot of very knowledgeable, talented, creative and imaginative IP practitioners in the United Kingdom; the Kat hopes that this review will deliver something to which they can relate and from which they can help build the foundations of a better future for IP-driven business.

4 comments:

MaxDrei said...

Just a thought from icy Munich: how about asking somebody with experience in both UK and Germany to compare SME's and Growth in the two countries. What strikes me as the biggest difference is the readiness of Otto Normalburger to bring civil proceedings in Germany at the drop of a hat, and expect to win speedily and at modest cost. Litigation as a first resort, if you like, rather than the English "last resort". People in Germany know this, with the consequence that very many of them are respectful of the property of others and of their civic duties. Is this something Hargreaves should reflect upon?

Ruth Soetendorp said...

The European Intellectual Property Teachers Network (EITPN) -- Real change in attitudes to intellectual property protection and commercialisation will never happen so long as intellectual property education resides primarily in law schools. It needs to be promoted to syllabus designers and accreditation bodies responsible for the outputs of (but not limited to) science, technology, engineering, business, management, marketing and all creative industry faculties. There are small shoots of such initiatives appearing, but they fail to flourish given the almost total absence of governmental interest and support for the notion of intellectual property education beyond law schools.

So: Suggest the Hargreaves IP 5 meet the EIPTN

Anonymous said...

I would suggest that approaching individulals is the wrong approach, and instead focussing on existing representative groups (Licensing Executives Society for Britain and Ireland, CIPA, ITMA, Pharmacueticals Trade Marks Group - and even the Pirate Party folks). They are likely to have already synthasized their members' real-life problems with the current IP system into a prioritized agenda for change.

Aaron said...

Ruth, I know that a great many of the top design schools in the UK do have modules on intellectual property.

I would usually agree that using CIPA and ITMA would be of assistance. Let's remember that consulting with members and promoting the interests of members may lead these bodies not to be that useful for all meetings. Should they provide input? Yes,

Of the names on the list, I would recommend Dids. There are some fantastic practitioners who would do an amazing role, but I suspect that they would be far too busy.

I think perhaps a feline might wish to curl up in their meetings.

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