Wednesday 16 September 2015

Design Clients - the impossible market

Where they agreed
The UK Intellectual Property Office has just launched a consultation paper to determine whether the UK should join the Hague Agreement for the protection of industrial designs. Recently, the UK IPO has launched a twitter feed (@BeautifulIP) to promote design registration, mainly focusing on the low cost and benefits of registration.

It knows from the activities of organisations like ACID that design matters and is really important to UK designers, who just hate being copied or even emulated. What is more difficult to understand is why the registration systems are the most neglected part of the IP system. Even the grace period has not helped much. There is, of course, competition from Europe with the Community Design System and there is no doubt that their filing interface is a million times better than the UK one - which is still paper based. Nevertheless for a single design €350 is a lot more than £60.

A UK designer can already access the Hague System since the UK is part of the European Union, which is a member. Hague allows you to file online. It is operated by WIPO but unlike the PCT and Madrid systems for patents and trademarks, Hague goes all the way and gives you design protection, though you may still need to deal with national offices if they have additonal examination issues within 6 months. You can also file and manage your applications online. Now that you can use the system to protect your design in Europe, the USA and Japan, it has become a practical proposition for designers to use. Prior to May 2015 when the US and Japan joined, the scope of protection available beyond the EU had almost no overlap with the real market for exclusively designed products.

The biggest problem I have when dealing with clients that are interested in protecting their designs is explaining to them the nature of the representations they are going to need. These images are the essence of what is protected and a simple snapshot, a glossy picture from your catalogue, or even a clip from your production drawings isn't likely to help the judge if you want to enforce the design registration. The judge can't and won't go behind your scrappy image (even if it was taken at phenomenal cost by an art photographer)  and look at your preparatory work. This was why things went badly for the Trunki designer. Even the Supreme Court may not be able to help him. Look out for the hearing of PMS International Limited (Respondent) v Magmatic Limited 

Design clients want great value for money. They want certainty. They don't want to engage in discussions about which aspects of their design are significant and whether colour, shading or particular elements of the shape are original or commonplace. They want to evolve and change their designs frequently. They are economical with both funds and time. They are creative and don't mix well with the pedantry of lawyers. Even those who have suffered plagiarism are reluctant to make upfront investments and they prefer the court of public opinion to IPEC. Design collections are typically numerous, frequently refreshed and many designs fall by the wayside before the one classic for which 25 years of protection would be of value is found.

The UK government wants to help and support these people. I applaud them. They may be able to go where the profession cannot. Designers have abandoned lawyers but they cannot abandon the law if they want to manage what they see as plagiarism. I hope that our leading designers like Tom Dixon will stand up and respond to the good Baroness in her efforts to get UK designers to go to the WIPO site and protect their designs both in the UK and possibly in other countries which belong to the system. He briefly flirted with the system in 2011. You can search here.

Certainly if we are going to exit Europe, it's going to be a good idea for the UK to join in its own right.  The consultation paper emphasises fee savings but fails to consider how designs need to be represented for effective protection, especially in the US, where refusals may be more likely.

Do you have any design clients left? If so it may be worth responding to this consultation before 10 November 2015. The UK government is doing its very best to assist the creative industries I hope they respond and encourage the UK to sign up.

Wednesday 9 September 2015

EPLC not so epic, it seems

Grandfathering provisions
aid those already practising
Practising patent law? Planning to litigate in the new but not yet operational Unified Patent Court? If so, this may be for you.  Today the Unified Patent Court website has posted the following information:
Draft proposal for rules on the European Patent Litigation Certificate and other appropriate qualifications 
At its meeting on 3 September 2015 the Preparatory Committee agreed the draft proposal for the Rules on the European Patent Litigation Certificate and other appropriate qualifications. The Explanatory memorandum and a copy of the Draft Rules are available.
The Explanatory memorandum is nine pages long, while the 22 draft rules take up just eight pages.  There's good news for grandfathers, in that some existing qualifications will be recognised, and those who have had a hand in three pieces of patent litigation over the past five years too.

The draft Rules make no reference to solo practitioners or to the size or resources of practices.

Monday 7 September 2015

the Ethics of Patents on Life : a taster

Murray Edwards College where we discussed #patentsonlife
Those of you who follow my twitter feed will know that #patentsonlife figured a lot from 4-5 September. This was a true multi-disciplinary conference that I blogged about before the event here.
It was an extremely stimulating conference and brought together many streams of academic interest within a manageably sized gathering. There was good representation from the patent professions from a High Court Judge to several patent agents; the Churches Religions (mostly from the Catholic church which being an undemocratic global organisation is able to speak with a single voice); Bioethicists and Scientists from Academia; and even Syngenta's IP counsel to represent the commercial world, though we had no policy makers or representatives from the patent offices (they need not have been afraid). The list of speakers can be seen here and they all stayed for at least one full day and participated in the discussion unlike many a traditional IP conference.

I am hoping that Michael Factor who presented a Mosaic viewpoint on property in ideas will also blog his impressions of the event.

Each delegate came from his own world but went away with a better understanding of the viewpoint of others. Those of us who understood that patents are time-limited and relate to inventions strove to help others discern  the distinction between discovery and invention. While there are some who feel the patent system is iniquitous, it is clear that there are distinctions to be drawn between the morality of research, the validity of patents relating to aspects of outcomes of that research and the manner in which any patents are exploited to the benefit or detriment of society. In turn,  we gained a better understanding of how  catholic social doctrine can justify the capitalist concept of property ownership. Big academic ideas like social mortgages and the public trust doctrine were also explored. The capacity of patent examiners to make moral judgements or even apply the Biotech Directive was considered. We learned how the search for funding may perhaps create a tendency to make big promises or attempt to exploit the patent system for financial gain.

There is much to be done by those digesting the contributions to this conference and a publciation should emerge. Nevertheless I hope that when silos of interest discuss ethics they will remember that social doctrine is something that affects and needs to be influenced by the whole of society and cannot be dictated by any single sector - however learned the  IP specialists.

UCL is also organising their own micro panel event here.