The UK Government is proposing a new Intellectual Property Bill which would seem to criminalise businesses for what they do best - to innovate.
IP Minister Lord Younger has introduced a new Intellectual Property Bill to help UK businesses wanting to protect their products and technologies through patents and design right.
The Bill aims to help businesses better understand what is protected under the law, reduce the need for costly litigation, and provide greater certainty for investors in new designs and technologies. The Bill delivers the remaining commitments from the Government's response to the Hargreaves Review.
Overview of the Intellectual Property Bill
The Intellectual Property Bill is short consisting of 23 clauses in 4 parts with one schedule of minor amendments to the Patents Act 1977. According to the Explanatory Notes that have been prepared by the Department for Business Innovation and Skills ("BIS"):
"The main purpose of the Bill is to modernise certain aspects of the law relating to intellectual property (“IP”), in order to ensure that the IP system operates more efficiently, is clearer and more accessible, thus increasing legal certainty."
Part 1 provides for designs and Part 2 patents. Part 3 amends the Freedom of Information Act 2000 and the Copyright, Designs and Patents Act 1988 ("CDPA"). Part 4 makes the usual sort of consequential and transitional provisions.
Key elements in the Bill include:
- New powers to enable the UK to implement the Unitary Patent Court Agreement. The Court is a central part in introducing a single patent across almost all EU countries. It is estimated that this would lead to direct benefits to business of up to £40 million per year. It is also anticipated that the London Court, which will adjudicate on pharmaceutical and life sciences patent disputes, will benefit the economy an estimated £200 million per annum.
- The introduction of criminal penalties for copying UK registered designs and the strengthening of design protection. This is already the case for copyright and trademark disputes and brings parity to this area of IP law.
- Proposals for a designs opinion service and an expanded patents opinions service. This would allow design or patent rights holders, or anyone else to ask the Intellectual Property Office (IPO) to provide an expert opinion on whether a UK design or patent is valid or being infringed. This will help businesses assess the strength of their case before embarking on more formal and costly legal proceedings, and may help avoid litigation altogether.
Leading IP barrister Jane Lamberthas criticised Clause 13 of the Bill. In a letter to Jason McCartney, MP for the Colne Valley she states
"The Bill contains a lot of useful provisions and is generally to be welcomed but it contains one provision, clause 13, which would create a new offence of infringing a registered design punishable by 10 years imprisonment, an unlimited fine or both."
Jane Lambert follows the arguments set down by leading academics on why Clause 13 is a bad idea. These objections include
- Lack of evidence of design piracy as a problem.
- Criminal provisions will likely create over-deterrence that is damaging to innovation.
- Criminal provisions are unlikely effectively to aid SMEs.
- Criminal courts are unsuitable fora in which to consider designs infringement
- Criminalisation of designs infringement, while permitted by international law, has not occurred in other leading common law jurisdictions.
- Criminalisation of designs infringement would be unwise as a matter of EU law.
- The argument that the repeal of section 52, CDPA 1988 will create a further anomaly between copyright and designs law is based on a false premise that such a change is desirable.
I agree with Jane Lambert's objections to Clause 13, particularly in relation to innovation and SMEs. Where there is genuine creativity designers won't be thinking about the law first - indeed, why should they - they're not lawyers. Sir Isaac Newton once said that his success was due to "standing on the shoulders of giants" - in other words we take past creations and find inspiration to recreate - this is how innovation works. To criminalise business enterprise for working this natural cycle smacks of legislation writers who've got little experience of how their laws work in practice.
Drop Clause 13 and let businesses get on with what they do best - to innovate.
- Intellectual Property Office Press Release