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Thursday, 4 August 2011

It's not just copyright: further thoughts on the UK government's further thoughts

The IPKat's postbag has been positively bristling with comments on the UK government's response to the Hargreaves Review (for background and some helpful links see yesterday's post here).  Most of the comments received so far relate specifically to copyright. These will be weighed, sifted, graded and turned into a post on the copyright-focused 1709 Blog in due course. The comments below deal with some wider and non-copyright issues.

First off is this comment from Mary-Ellen Field of Brand-Finance (the first person to spot the absence of the words "trade mark" from the Hargreaves Review).  Mary-Ellen strikes a significantly positive note as she looks to a better future in which the government takes IP more seriously. She writes:
"The Government via Secretary of State Vince Cable presented its responses to the Hargreaves Inquiry yesterday. The fact that the Response was accompanied by photos of the Chancellor, the Secretary of State for Business and the Secretary of State for Culture, Media and Sport indicated to me at least that from the Cabinet's point of view this was too important an issue to be fobbed off to a junior minister. To properly appreciate the response you need to read the three documents. The Government's Response, The International IP Strategy and the IP Crime Strategy [links to all three can be found here].

Having read these I think this Government is at last taking IP including TMs seriously -- and not before time. Hargreaves is not going to disappear without trace as Gowers did. Many of the shortcomings in Hargreaves have been addressed in these documents. However the first thing I read when I opened the email yesterday was the covering letter from Baroness Wilcox who must not have read the Hargreaves Report because she seems to think he dealt with trade marks which we all know he didn't. I tried not to let this put me off and persevered.

Importantly all three reports are written in language that is understandable by anyone with even half a brain. I'm not of course suggesting that any IPKat readers have anything less that a whole brain. The Government, in my opinion, has made a genuine attempt to understand the IP world and the issues that face all of us. It is not perfect, nothing ever is, but I found that they do understand how important all forms of IP are the the health of our economy and therefore to the wellbeing of us all. They appear to understand the problems faced by individuals and SMEs and are prepared to work on ways to address these They have committed themselves to a structured way forward to deal with the issues and I think they deserve credit for that.

There is no doubt in my mind that IP is firmly on table as far as this Government is concerned. I was heartened to see the issue of lobbying tackled head on. Many of us spent a lot of time preparing submissions, writing letters and attending meetings related to Hargreaves. My poor MP Justine Greening's heart must have sank every time she saw an email arrive from me about Hargreaves. She too wrote lots of letters to the relevant people about this. The IP world does have a friend in the Treasury.

I like the idea of IP Attach├ęs in our embassies in our major markets. Hopefully this will mean companies will no longer be told that trade marks are no longer relevant and you only need domain names to export as two of my clients were told by government officials.

No doubt many readers will have complaints about the responses, but I think it is a very good start".
Patent attorney Gwilym Roberts (Kilburn & Strode) is less impressed, measuring the response's statements regarding patents against the concerns that Hargreaves has identified:
"With the release of the government response to Hargreaves, the lack of emphasis on the patent system becomes ever more glaring. In an inauspicious start the response echoes the importance of basing policy on good evidence but offers little as to whether copyright dominates as a reflection of its economic or political importance.

In fact patents get exactly three bullet points, the first of which merits rendering verbatim: "The Government will resist extensions of patents into sectors which are currently excluded unless there is clear evidence of a benefit to innovation and growth from such extension". Well, there has been much debate over the years about what constitutes excluded matter but none recently about any need to extend the patent system into excluded areas, so that leaves two points to summarise effective policy.

The next relates to the role of IPO in reducing backlogs. The IPO is by no means the main offender in this area but in exhorting it to use work-sharing schemes, government is thrusting boldly forward with the status quo. One bullet point left.

Addressing Hargreaves' legitimate concern with patent thickets, the government has charged IPO with an investigation into their scale and prevalence, with a view to suggesting alternative fee structures. But thickets are a bit like nuclear weapons -- the problem isn't so much the fact of their existence; it's what happens when you start using them. People who can afford thickets aren't worried about their cost: it's the third parties trying to cut their way through who have to pay. A review of fee structures won't change this; only resolution of the related problems of uncertainty and the difficulties of litigation.

Yet the response is proud of our enforcement regime, stating that we're second best in the world. And it provides evidence - this conclusion is based on a report from a private practice Anglo-German firm [that's the Taylor Wessing Global IP Index, here, noted by the IPKat here]. While the report relied on is undoubtedly well researched, is this truly an example of broad evidence based reasoning? When the Anglo-German report puts England second only to Germany? If our system was that good surely we'd be clearing those thickets within weeks.

Admittedly in looking at litigation the response does touch on patents, if only to note that the proposed small claims track would not suit them. Yet improvement here seems to be a key area, as any steps towards rapid low cost clarity for thicket negotiators can only help would-be innovators.

The old Patent Office must be ruing the name change to IPO and the dreadful pressure this seems to have brought on them to solve everything. Of course IPO should support and administer the IP system, but as far as patents go, implementing the proposed actions seem unlikely to improve matters particularly. Indeed, without looking at the real problems faced by innovators, and surrounding issues such as bridging the gap between innovation and commercialisation, we are a long way from any solution.

The report set out to look at innovation but the outcome seems to be all about the parallel topic of creativity. Even without the evidence that all the protagonists are calling for, it's pretty clear that if we are going to make the UK an innovation centre, we're not done with reviews just yet".
The Chartered Institute of Patent Attorneys was quick off the blocks with its response too, focusing on the lack of access to expert advice for Small and Medium-sized Enterprises (SMEs):
"The UK’s design and manufacturing sector makes a much bigger contribution to the economy than is recognised by the government’s plans for IP reform, says the Chartered Institute of Patent Attorneys (CIPA). Business Secretary Vince Cable’s announcement of how he intends to implement the recommendations of the Hargreaves report on intellectual property fails to explain how product-based companies – especially small and medium enterprises – are to get the improved access to patent advice the review recommends.
‘The UK is still one of the world’s leading manufacturing nations,’ said CIPA President Tim Roberts ... ‘Manufacturing provides 50 per cent of UK total exports, employs three million people and constitutes 12 per cent of GDP. A high proportion of exporting manufacturers are small and medium enterprises. Add to the export figures the value of British know-how and design expertise that go into goods manufactured abroad and it is clear that the IP underpinning British products and designs is internationally competitive and one of the nation’s most valuable assets.’

The Hargreaves Review of Intellectual property recognises the importance of IP and patents and makes clear recommendations – especially in respect of SMEs:
‘Research undertaken by the Review also confirms that SMEs are not sufficiently well served by those providing advice and information on IPRs. We recommend action to give SMEs access to lower cost IP advice.’ 
The government’s response to the Hargreaves Review, announced on August 3 by Business Secretary Vince Cable, Culture and Media Minister Ed Vaizey and supported by the IPO’s Chief Executive John Alty, focused on copyright issues and failed to tackle the question of how SMEs will be given access to lower-cost IP advice. 
‘CIPA already actively supports the IPO in providing advice and support to SMEs, through free clinics, roadshows and other initiatives,’ said Tim Roberts. ‘We agree with Hargreaves that entrepreneurs and early-stage businesses need to have access to the best IP advice. In the absence of any suggestions from the government as to how they intend to make IP advice available at a lower cost, we will continue to offer our support to the Business Secretary’s ministerial colleagues – especially IP Minister Baroness Wilcox.’
The comments by Anti Copying in Design (ACID) regarding design right protection have already been posted on the Class 99 design law blog here.

1 comment:

Mark Anderson said...

I agree with Mary-Ellen about the clarity of the writing - I can hear Vince Cable's interview voice coming through in much of the phrasing of the main report. This makes me hopeful that he is taking a personal grip on Govt IP policy, rather than delegating it to technical advisers.

By contrast, seeing Baroness Wilcox's photo on the IP crime report makes me wonder if this aspect has been delegated to an (unimpressive) junior minister.

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