If innovation is the tonic, what's the gin?

The Chartered Institute of Patent Attorneys (CIPA) has issued today its "scorecard" for the UK's coalition government. According to CIPA's media release, "The coalition government has been putting money – what little it can find – where its mouth is in encouraging innovation, according to Alasdair Poore [CIPA president]".  The media release continues thus:
"Chancellor George Osborne, Justice Secretary Ken Clarke and Business Secretary Vince Cable have each notched up a pro-business innovation initiative:

1 New incentives in the tax system for businesses to innovate and patent their inventions [on which see Anne Fairpo's IP Finance posts here and here];

2 Reformed IP enforcement – dramatic changes to make it much easier and cheaper for innovative businesses to enforce their patents and other IP rights [on which see the series of PCC Pages on PatLit, listed here];

3 Strong support for a cheaper European Union patent system, with an initiative to make it simpler for British firms to get their innovative products patented throughout Europe, without all the current substantial costs of translation [on which see earlier IPKat posts here and elsewhere].

‘Since they took up their portfolios in May, ministers have been pinning their hopes on innovation as the tonic that will revitalise the economy and end the recession,’ says Alasdair Poore. ‘The parting shot of the Labour government was to rush through its Digital Economy Act [on which see comments here and earlier on the 1709 Blog], which raised as many new questions as it answered. But it did succeed in pushing innovation and intellectual property yet further up the political agenda. The coalition government is pushing the connection between new ideas and the need for a 21st century system for protecting them, to the benefit of the economy. They have been quick to commission a new review of IP [the Hargreaves Review, on which see the Kats' comments here], which Prime Minister David Cameron announced along with his intention of creating a ‘silicon valley of East London’. 
... ‘China’s manufacturing output overtook the UK’s a long time ago,’ says Alasdair Poore. ‘Its government is now competing with the UK’s to promote innovation and development of ideas, and patent protection for them, as a key driver for its growing economy. For example, Chinese firms that register patents outside China can get a grant of $8,000 [great idea -- and good news for translators too!]. Chancellor George Osborne recognised that this country needs to provide similar incentives for innovation when he announced the so-called ‘patent box’ in his autumn statement. This is proposes to cut corporation tax to just 10 per cent for revenues from patents. According to pharmaceutical industry experts, that announcement has already encouraged major companies [Glaxo, at any rate] to invest over half a billion pounds in the UK’.  ...
[Cutting to the bit about enforcement:] 'On October 1, the government introduced the reformed Patents County Court system, making it a quicker and much more affordable process — particularly for small firms. With the almost simultaneous appointment of His Honour Judge Birss QC as its highly impressive judge, the PCC now provides companies with a low-cost way to enforce their patents and other IP rights. Procedures have been enormously simplified, trials will be limited to a maximum of two days within months of proceedings being issued, and recoverable costs are kept to a minimum, resulting in much cheaper affordable means of enforcing their IP rights for businesses.’

...  ‘Much of the work in preparing the ground for these initiatives had taken place long before the coalition government came to power,’ says Alasdair Poore. ‘Nonetheless, it is to ministers’ credit that they have taken decisive action to encourage British businesses to innovate and to make sure that the IP system is fit for the digital economy of the 21st century.’"
The IPKat likes the idea of giving governments an end-of-term report, based on their IP-friendliness -- and he agrees with CIPA that the coalition government has done pretty well so far.  He has a few black marks to hand out too, though.  The first relates to the apparent lack of overt government support and enthusiasm for a proper means of seizing and retaining counterfeit goods that are not (allegedly) intended for sale in the European Union but are merely taking a short-cut across its territory.  A second relates to the lack of interest shown in coordinating the various tentacles of public sector enforcement (customs, police, trading standards officers, recovery of the proceeds of crime) and indeed private sector enforcement so as to provide more fluency in both administrative and judicial matters.  A third is the woefully short time that the government, via the Intellectual Property Office, gives interested parties to respond on European Court of Justice litigation and the lack of transparency (you can't see whether other people have already made the same comments and you've no idea whether the government is going to accept, modify or reject your suggestions).  The fourth is the continued failure to press for prompt English-language translations of Court of Justice decisions and Advocate Generals' Opinions so that we can know what's going on.  He suspects that readers may have their own black marks to add and that he may soon be reading them as readers' comments.

Says Merpel, "ministers have been pinning their hopes on innovation as the tonic that will revitalise the economy and end the recession" -- but tonic's not much good without the gin (click here for gin and tonic), which is the IP system.  Without the gin, why bother investing in the tonic at all?  She adds, CIPA say of the Digital Economy Act that it succeeded in "pushing innovation and intellectual property yet further up the political agenda". This is true. However, pushing IP up the agenda may be likened to pushing an enema up its chosen path -- people start regarding it as a pain in the proverbial and it never gathers any momentum before the initiative dissolves.
If innovation is the tonic, what's the gin? If innovation is the tonic, what's the gin? Reviewed by Jeremy on Wednesday, December 29, 2010 Rating: 5


  1. "The fourth is the continued failure to press for prompt English-language translations of Court of Justice decisions and Advocate Generals' Opinions so that we can know what's going on."

    Frankly, that sounds to me a bit like awarding Spain 10 out of 10 marks for keeping on pushing for Spanish as an official language with the EPO - and blocking the community patent unless all will be translated in Spanish.

  2. No it doesn't, Japser! First, the UK didn't refuse to sign up unless all case law was translated into English; secondly, English IS an official language for these purposes, while Spanish is not and never has been an official EPO language; thirdly, this is as much as anything else a management issue within the Court and the Commission, as to how to deploy their funds and their translators -- not a matter of cultural or political principle.

  3. Thank you for the reply, Jeremy. I was a bit tongue in cheek there (if that is the correct expression for the occasion; I'm not a native speaker :-) ).

    I fully agree with your opinion and arguments.

    And it's just that - if possible - I always prefer to read EPO decisions in the language of proceedings rather than translations.
    (As a patent attorney, decisions of the EU Court of Justice are not that relevant to me until Art.22(4) of the Brussels Convention is finally scrapped. Makes life a lot easier :-) )

  4. The Digital Economy Act fiasco just fuels the belief in the minds of many that IP protection exists to enable big business to bully and dominate the little man or company without benefit to anyone but themselves.

    The PCC looks to be filling up its diary with bullying actions (Media CAT - any relation?), so that isn't going to help things either.

    When IP attorneys support every new regulation it is fair to assume an element of self-interest is creeping in. A public stand by a group of attorneys against something like this Act would not only support a position of neutrality, but would also stir things somewhat.

  5. I wonder how many times GSK will re-announce this 500 million spend, which, if it is really going to happen, was decided on before the patent box policy. Govt scratch GSK's back and they'll scratch theirs? Spin, Spin, Spin.

  6. @Anonymous 4:41pm. You write "The PCC looks to be filling up its diary with bullying actions (Media CAT - any relation?), so that isn't going to help things either".

    No, Media CAT is no relation -- and if there is any bullying going on, it's the PCC's judge bullying an inept claimant into getting its cases into proper form before bringing them.

    As for the Digital Economy Act -- CIPA didn't say it supported it, but commented that it had been rushed through and raised as many questions as it answered. And given that patent attorneys are rarely if ever involved in any form of digital copyright infringement action, even if they had supported the DEA I don't think they could be accused of self-interest.

  7. My mistake over Media Cat. I'd considered that sending thousands (50 to 60K planned?) of letters to individuals demanding large payments on pain of court action followed by the latest court claims to be abuse of legal power and hence bullying. Of course, you are right that a judge insisting that default claims, without actual notice to a defendant, satisfy a few basic rules (as opposed to satisfying none), is true bullying. We live and learn.

    No criticism of CIPA. It was a general point and the public do not distinguish between a copyright lawyer and a patent lawyer. All are tarred with the same brush.

    Happy new year.

  8. The untruth that the DEA was "rushed through" is taking on a proverbial status, but it isn't factual. It was a House of Lords Bill (BIS Minister: Lord Mandelson) and received exhaustive, repeat: exhaustive discussion in the Lords (no guillotine possible there). Yes, when it got to the HoC it was part of the wash-up, but by then it had been endlessly debated. The underlying complaint is that the DEA's opponents lost the debate, but that is another matter.

    Anonymous may also be confusing the DEA with claims for damages as pursued by ACS Law. No one is suggesting that there will be mass claims for damages as a result of the DEA. The DEA is a substitute for conventional litigation. If you want more damages claims against individual infringers, undo the DEA.

  9. Rest assured that Anonymous is not confused. The DEA gives the likes of ACS Law extra weapons in their bullying kit. It does not remove the right to bring claims in the PCC, a court that is supposed to improve confidence in the IP system. Is that an improvement for the public or the rights holder, or even, it appears, someone purportedly acting on behalf of some un-named rights holder. Bit like the man from the water board with his little badge coming to rob your granny.

    Simple sour grapes on behalf of those who lost the debate? I am Anonymous, but maybe your real name is Deluded?

    Do you think the acts of ACS Law (letters and actions) et al are bullying or reasonable use of available legal resources, which inspires confidence in the public in our IP system?

    "MPs from all parties acknowledged that the Bill was faulty yet they pledged their support for its passage. Shadow culture secretary Jeremy Hunt called it "a weak, dithering and incompetent attempt to breathe life into Britain's digital economy." But Hunt voted for it. He said that if the Conservatives come to power, his party will fix any problems with the Bill, "if it turns out that the legislation is flawed." That is not the way to make a law. "

    Struan Robertson is a Legal Director with Pinsent Masons LLP)


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