Friday, 3 July 2015

CIPA as an Entity of Intellectual Property Influence

The Chartered Institute of Patent Agents is holding a web cast of a meting at 16:00 on July 8th to discuss updating its Bye Laws.

The impetus was the need to modernise the admission regulations which, due to the demise of the OGM, were slowing up the admission of new members. However the opportunity was also taken to review the types of members we admit.

The 25 page report of the Bye-Laws working group can be downloaded here .

Membership Structure

The core of CIPA is practising patent agents and at present you can become a FELLOW as soon as you qualify. This means there is no progression or recognition of seniority within the profession after that. Even so the working group is not considering adding another illustrious lawyer for rich senior partners - an opportunity lost. ITMA is smarter than that.

To be a body of influence, it seems to me we need a wide and large membership. Clearly CIPA has most to offer to those who want to practise as pure patent agents but other Intellectual Property Rights and Patent Litigation are very important too. At the moment Barristers and other Litigators are excluded from the Fellowship and this is a loss to CIPA's influence. If our industrial members want clout on issues such as the Unified Patent Court we need to recognise the central function of those who do litigate. We cannot suggest they join as "Affiliates". Its clearly not very attractive as only 35 have apparently done so. If you are a QC at the patent bar you should be a Senior Fellow. If you are a patent solicitor working on High Court litigation Fellowship is the minimum respectable rank.

Creating a more inclusive structure will also make a more attractive career path and a broader pool to make effective policy considerations. At present CIPA is stuck in securing patent rights and its scope stops there. It needs to recognise that its members work in the wider world where those patent portfolios influence share prices, business success and failure, disputes, licensing and much more. There is only so far Ministers are likely to listen to people who only seem fit to fill in forms.

There should also be Trade Mark Fellows and please can we get rid of the divisive Overseas members. If you are an EPA resident anywhere you can surely join as an EPA member (and why not a Fellow) and if you are a US patent lawyer then are you really so different from a UK one. Can we make it even simpler.

Titles

There is a proposal that the 288 members who are on both registers could call themselves Chartered Patent and Trade Mark Attorney. I am saddened that I am one of so few. Surely many more folk within patent firms practise trademarks. It seems that very few can now manage the labour/cost of both Trademark exams and  Patent exams. Again we are narrowing our specialism so that influence can be ignored. We need to facilitate not limit the acquisition of a broad range of skills by our members and give them the opportunity to move between practises that provide a range of services.

The title PATENT AGENT is about being on the register and therefore now outside the gift of CIPA. Lets not worry about titles nobody uses them but we do say in our CVs what exams we have passed, what qualifications we enjoy and what influential professional bodies we are proud to belong to.

Committees

An interesting proposal is the empowerment of committees to act without the approval of Council in respect of delegated powers. A lot of policy is decided by committees so we might be losing control here. However getting fast responses to consultations does requiresome delegation. The Council members on Committees might need to be more accountable to Council and everyone should be more accountable to the membership.

Elections

Not much changes here. Is this an opportunity lost. Elections need to be a bit more inclusive. Maybe we should have constituencies to be represented. At present the influence of the Council is being suborned to big business who use the patent system for one purpose. Council needs to represent a cross section of membership and we need to have SOLO members and not too many retired ones, as well as EPA ones . Therefore I foresee a need to amend 11.1 so that it is not just Fellows who can be on Council.

Do attend the webinar and ask questions. We need your Influence. 



Sunday, 28 June 2015

Blogging Suspension: Please help me get Twitter rights back

There are a number of topics I had hoped to blog about. These include:
  • The expansion of the Hague International Design system so that it now allows our clients to secure design protection at OHIM and in the USA and perhaps less significantly Japan
  • The changes to CIPA bye-laws which will be the subject of a webinar on July 8 from CIPA Hall. If you are a member you can book here
  • The Unified Patent Court fees consultation and what it means for more modest patent holders and the patent strategies start ups should follow as a result of their potential exclusion from the new court.
  • Progress on the introduction of a grace period for UK patent applicants by the UK-IPO
  • The delightful free speech by Judge Alex Koszinski at the 2015 Sir Hugh Laddie lecture on 24 June 2015 at UCL. Peter Groves has blogged about it here
I have not blogged about these important issues because I cannot draw attention to my blog posts any longer on Twitter. This blog is blacklisted as spam and links to it cannot be tweeted. I have reported it and this is the feedback



Thanks for your report.

In order to make Twitter more secure, we have automations in place that could impact your ability to Tweet certain links. If you’re having issues Tweeting a link, our team will review your request and take appropriate action on the reported URL. You can find more information on this topic in this help center article: https://support.twitter.com/articles/90491

Though we cannot respond to individual reports, the information provided helps us make Twitter better for everyone.
So I hope you feel that silencing blogs is better for you. If not and you cannot tweet a link to this blog or this post. Feel free to report it to twitter  support. This is the page you need https://support.twitter.com/forms/spam. Maybe if enough of you want us to continue then Twitter will relent.
 

Friday, 12 June 2015

Pensions Grief for Micro Employers

Happy Pensioners
I expect many large IP practices have their own pension schemes for employees these days. I have never benefited from a workplace pension with any of my previous employers, but now, as the smallest employer possible, I am required to start a pension scheme for my staff. Its a great idea in principle and the government is right to encourage pension saving.

Maybe some of you too have been notified of your staging date. Its  all the work of The PENSIONS REGULATOR. Apparently its not a scam. Just like parents who employ nannies, patent and trademark agent employers are now required to set up a scheme so that after the staging date (not before) you can write elaborate letters to all your staff - including yourself if you employ yourself, as I do, telling them all about their automatic enrolment in the glossy new firm pension scheme and how their pay cheque will be reduced.  Maybe they will all opt out,  but its a crime to presume that. A scheme must exist even if it never receives a penny.

I asked my personal pension provider. Like many in the industry it was SO not interested. Well who can blame it. The chances are no funds would flow in or very modest ones for which the charges would swamp any possible returns. This is just a fact of life. For those with only pennies to invest a piggy bank is best.

There are at present (only) 47 companies offering schemes. They are on a register here. It includes some that are closed for new business and many with restrictions.

It seems that some professions have offered their members schemes to help. Not heard anything though from The IET, the SRA, ITMA or CIPA, but perhaps I have missed it. The only one I could find offering help on the Internet was the BMA. Good to know your GP's pension is sorted!

In any event, it seems the only practicable scheme is the one run by the Government. Its called NEST not to be confused with NESTA the once government owned innovation body that may be more familiar to those in our industry.

You might think there is a little irony or at least some wasteful administrative circularity in replacing part of the state pension scheme with another state pension scheme. I do.

The reason why professional bodies were encouraged to help was that they might have the membership clout to set up communal schemes to which small members could sign up even if their staff were more likely than not to opt out, either because they are so poorly paid any reduction from their wages is untenable, or because they have independent arrangements and would in effect be paying the employer's contribution from their own pockets. Does  CIPA already run a stakeholder scheme for its own staff - can we piggy back on it?

Friday, 5 June 2015

IPEC Small Claims

The Walke Talkie from somewhere else
The UK Institute of Trade Mark Attorneys ITMA held its Annual Reception for members of the Bar yesterday. It was hosted in the offices of DWF in the Walkie-Talkie - that wonderful building on 20 Fenchurch Street which has a garden in the sky. We weren't in the garden, but we did get to enjoy the stunning views of the river, through glass so no photographs you have to instruct DWF.

The event was favoured by the attendance of at least two of the District Judges who "man" the small claims track of IPEC. The guide for that court gives lots of information  and most of the profession are clear that it works pretty well for photographers who find that their work has been  misappropriated. In those cases we know (I think) that damages around the £400 - £500 mark are likely to be awarded. I was not alone in commenting that the lack of any published judgements or even less formal information on how trade mark matters were dealt with gave rise to some difficulties in advising clients  whether to choose, transfer or remain there.  While many judgments are ex tempore and don't lend themselves to reporting, there are some reserved judgments that have not made it  into the public gaze because a policy decision has been made that they should not be published on BAILII. This is unfortunate because it keeps us in the dark.

One of my concerns is that with a £10,000 limit on damages  and with no intention of conducting the same type of inquiry that is conducted in the multi-track or High Court, it might be easy to assume that damages reach that limit and order it automatically. Nice for claimants, but less than satisfactory for impecunious defendants,  for whom that sum  may be unattainable.

It seems that many judgements in the small claims track are by default, which in itself is unsatisfactory and suggests that defendants are not finding access to affordable advice.  Even if you have infringed intellectual property, it is still worthwhile admitting or defending and attending to ensure that your case is dealt with fairly. So far ITMA has not been successful in setting up a pro bono scheme and intellectual property defendants are not finding much assistance elsewhere. Often the difficulty is that it's not a case of not being able to afford legal advice, it's not being able to find legal advice that is affordable.

It was great to meet the small claims track judges and hear a little about how they operate. This in itself gives me much more confidence than I had before. With the multi-track so busy, it is good to know that there is capacity on the small claims track for things to come on early. They even promise to read their emails, even if due to the universal lack of support staff that seems to handicap our  increasingly expensive court system,  its less likely that the phones will be answered.  Some difficulties seem to arise when claims are issued, which is in the Rolls Building, as it is necessary to get a small claims track number for the case to go straight to their administration.

Hopefully some  small claims track trademark decisions might find the light of day somewhere. These are public documents.  It seems odd that we should have to consider freedom of information requests in order to find out how justice is delivered. This information should be readily available to those who need recourse to intellectual property justice.  Maybe this is something that the IPO can help us with. After all, every trade mark opposition  decision is published, even though they are also non-precedental.

Saturday, 30 May 2015

Legal E-Books - go ProView

Proview Library
As a solo practitioner, there is not a lot of space (or indeed funding) for an extensive library of printed works. Therefore I have turned to E-Books. An E-Book has many advantages. It is
  • as light as your iPad, 
  • you can carry several at once without a barrister's clerk and trolley, 
  • you can search it quickly and reliably even if they did not employ the best indexer, 
  • you have an inexhaustible supply of marker pens and sticky notes for marking it up, 
  • you can clean up all the pages after a case or revision session without any tears,
  • there are hyperlinks in the best ones to case reports, 
  • the text size is big enough to read,
  • the paper does not tear or prove to be see-through.and 
  • you can print off relevant bits if need be on your own printer without panicing about copyright as you have a licence.
You cannot stroke the binding. Some E-books such as the EPO book I reviewed recently are just pdfs so your ability to read them depends on your pdf application. As you might expect Sweet and Maxwell who publish much of what is most relevant to the IP practitioner offer something better. Their reader is called ProView. Oddly it does not get much publicity and the UK sales teams don't promote it. I asked about it on the Thomson Reuters stand at #INTA15 and was met with a blank look.

Westlaw UK looks like this for some
The application started life in the USA market and I suspect I am not the only English practitioner still using the Westlaw Classic rather than the new tools that others have. Here is a screenshot of the opening screen for modern Westlaw UK for those who have access to it all.

However reading a book is somewhat different from researching a point of law, which is the main delight of the comprehensive Westlaw, and for that purpose the ProView app which you can use on an iPad or a desktop comes into its own. It must be intuitive as no-one has shown me how to use it and I may have missed some of the best bits, so do comment if I have missed your favourite tool.

You download the books you have bought and you can use them on up to four devices, so you can check a reference even if the WiFi is down. Bookmarks and notes don't synchronize across devices. You have a contents bar that opens down the side and you can shut it away if you want to use your whole screen for reading. There is a bar at the bottom with a slider. You can slide it along and flick through the book. Tool-tips let you know how far you have got so its even better than flicking through a hard copy book. The text includes blue hyper linked text which takes you to source material (assuming your have the subscription and an Internet connection). Highlights and bookmarks are easy to add and you have a range of colours and you can label the colours so you know which point of law in your case they relate to.

Somewhat annoyingly the E-Books seem to cost more than hard copy and then they have VAT on too, which would be a bore if you were not registered for VAT. In the case of our beloved CIPA Guide to the Patents Act aka The Black Book the website only offers it in Hardback
but it does seem to exist as an E-Book on the Westlaw interface and I am hoping that I can get it on ProView soon. All that lovely wisdom on my iPad just has to be a good thing. If I were doing my exams now I would really really want to have this tool available to me.

Nobody gave me any discounts for writing this blog, it comes from the heart. Whoever developed ProView you did a good job. I hope I can increase my library.

Wednesday, 20 May 2015

Patents on Life - A Legal or a Moral Issue? Lets Discuss

In Cambridge on 4-5 September 2015 one of my solo friends, Dr Roman Cholij of St Edmund's College  has been instrumental in organising a conference on PATENTS ON LIFE.  Download the flyer here .  The conference is hosted by the Von Hugel Institute but it takes place at New Hall (of which both Sally Cooper and I are alumni and some popel call Murray Edwards College) and is jointly sponsored by the US The Terrence J. Murphy Institute for Catholic Thought, Law and Public Policy. 
Its not expensive and you even get CPD points. Booking information here

Many intellectual property lawyers prefer to set aside any moral and ethical concerns about the subject matter of the inventions or even the trade marks that pass across their desks. For each of us, though, there may be a point where we draw a line. Though it might sometimes be difficult to do without being accused of intolerance so even declining an instruction can be fraught with problems.

We all know about patent eligibility rules. The UK IPO  and EPO have the task of implementing them. The EPO opposition procedure means they have to address the concerns of the public in this area and they do try to explain the inexplicable policy foundation. The UK IPO current policy on inventions involving human embryonic stem cells updated on 25 March 2015 can be found here.

We all know that patents are supposed to encourage innovation. Does it follow that by refusing to patent certain living things, innovation will stop? Can those who administer justice take a neutral stance.

As patent professionals we need to share our knowledge. We need to know if we are contributing or assisting activity that will lead to the decline of society or help it to grow and flourish. With new technology it is often unclear whether it will assist the angels or not. How should we conduct ourselves and what is the guidance we should be looking to provide our policy makers. This event is an excellent forum to debate these matters.

It does have a strong Catholic element but that is because the Catholic Chuch is concerned to discern the right moral path. I hope I will meet people of all faiths and none. There are few hard lines in this area which is why we need to discuss in the manner that Universities were created for. I hope some of you will come along and participate with me.

Thursday, 7 May 2015

European Case Law Review 2014

Guy Heath
One of the most valuable sessions in San Diego was the European case law review, a swift canter through the key cases of 2014. Clearly a huge amount of work had gone into the final selection so it was dissapointing not to have any handouts for further perusal on the plane home. This year the INTA app promised handouts and a discussion capability, but it delivered a sparse selection of speaker bios instead. Nevertheless INTA has published in its Reporter a valuable digest which you can download here. I reccommend you do so as its beautifully organised by topic and provides national cases as well. No trademark agent should be without it.  Thanks Guy. We would love to have the slides too.