05 December 2005

Gordon Bennett (or should that read "Brown"?) - Gowers Review of Intellectual Property

A tidbid of news from HM Treasury's website is that the Chancellor of the Exchequer has commissioned Andrew Gowers to review the UK’s intellectual property framework and to report to the Chancellor, the Secretary of State for Trade and Industry and the Secretary of State for Culture, Media and Sport by Autumn 2006.

Gower's brief is to analyse the performance of the UK IP system, including inter alia
  • the way in which Government administers the awarding of IP and their support to consumers and business;
  • how well businesses are able to negotiate the complexity and expense of the copyright and patent system, including copyright and patent licensing arrangements, litigation and enforcement; and
  • whether the current technical and legal IP infringement framework reflects the digital environment, and whether provisions for ‘fair use’ by citizens are reasonable.

As I have said many times before in this blog and elsewhere, the UK lies sixth in the European patent applicaiton league behind not only the USA, Germany and Japan (as one might expect) but also behind France and the Netherlands with Switzerland snapping at our heals.

If Gordon wants to do anything about our position in the league he will have to do something about the cost of enforcement. The USA and UK (or at least England and Wales) are among the most expensive countries in the world when it comes to the cost of litigation. The reason for that is that issues and evidence are still chosen by the parties in common law countries (CPR notwithstanding) whereas in civil law countries they are chosen by the court.

In America the position is mitigated by the fact that costs do not usually follow the event and many counsel will take cases on a contingency fee (share of the damages). It didn't matter all that much here before para 1 (h) of Sched 2 to the Access to Justice Act 1999 abolished legal aid for business disputes. A very large proportion of my clients (and indeed my opponents') were funded by the state. The only time I was ever against Sir Hugh Laddie his client was on legal aid whereas mine was not.

Until we do something about reducing the cost of litigation or bringing back some kind of public funding people will not apply for patents (or for that matter trade marks or registered designs). During the consultation on the Patents Bill I supported strongly a proposal to abolish the requirement of consent to to refer an infringement dispute to the Patent Office under s.61 (3) of the Patents Act 1977. I was told that I was about the only one who did and that there was strong opposition to the proposal. As the Patent Office is much cheaper than the court it is a crying shame that the government did not cling on to that proposal.

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