Don’t delay

Acronyms such as IoT and UPC dominated discussion at this year’s London IP Summit

Robert Webb, general counsel of Rolls Royce, kicked off the London IP Summit with an air of positivity in his keynote speech, expressing the importance of intellectual property as the most “valuable asset for many companies”, despite movement away from historical intellectual property systems.

Webb said that there have been many changes to IP law over the course of his career, with one of the biggest differences being that arguments are published online for “the whole public to take part in”.

This has resulted in “not enough” cases making it to court “to allow a proper body of precedence to be built up”. He explained: “They’re all dealt with through arbitration, mediation and private dispute resolution.”

He added: “[Courts haven’t] got enough competent cases to develop common law and keep in touch with what’s happening now.”

“We are now on the frontier where technology meets lawlessness. You’re enforcing abstract intellectual property doctrines in parts of the world that don’t like it and don’t see why they should play. This is a fantastic industry, the expertise is undoubted, the rights are real, but there are some chilly threats.”

One such area of technology dominated a later panel session. The internet of things (IoT) is widely considered to be the next great challenge to IP protection and enforcement.

Speakers suggested that the various estimates of more than $4 trillion needed by companies to develop the infrastructure for IoT and innovations such as self-driving cars would be returned through patent prosecution and licensing.
When asked whether IoT had the potential to be sustainable, Kimberly Schmitt, managing counsel in the litigation department at Intel, said: “I don’t see it being a bubble. I sincerely believe this is going to be as big as the internet. All of these technologies are in their infancy and patent systems are put in place to protect the innovation. But we must make sure we aren’t unduly suppressing innovation in these areas.”

George Whitten, vice president and patent counsel at Qualcomm, added: “A lot of work still needs to be done into investing into developing the underlying infrastructure that will support all these new technologies.”

Trials and tribulations

The London IP Summit was awash with questions about how the UK’s vote to leave the EU is likely to affect IP. Chief among these was the future of the Unified Patent Court (UPC) and the unitary system it is being implemented to oversee.

Alexander Ramsay, chair of the UPC’s preparatory committee, described the UK’s vote to exit the EU as but a “speed bump” for the future of the unitary patent project.

Ramsay said that although the potential effects of Brexit on the UPC are on everybody’s minds, the project will continue, regardless of whether the UK participates.

One issue to arise since the Brexit vote is in the recruitment of judges for the UPC. Ramsay said that more than 840 professionals have applied to become UPC judges since applications opened on 9 May, but they cannot “move into their employment and training until we have ratification”.

Indeed, the UPC preparatory committee released a statement on 17 October, a week after the London IP Summit, stating that its current timetable for the recruitment of UPC judges “is being revisited in the light of the results of the referendum in the UK”.

The committee said that while the preparation of candidates’ selection has continued, the commencement of the next phase, which would include calling candidates for interview, has to be rescheduled.

It said that this would “to some extent delay the entry into operation of the UPC”.

At the London IP Summit, Ramsay said the preparatory committee wanted to “avoid any delay to implementation of the system”.

He said: “We need the UK government to show a swift decision as to whether it wants to be a part of the UPC. What we need to avoid is any substantial delay or a situation where nothing happens.”

Panellist Christopher Thornham, partner at Taylor Wessing, said: “The problem is, if we ratify [the UPC Agreement], then there are politicians who will be asked: what are you doing? The British public voted to not be bound by EU law.”

“The question is: why doesn’t the UK just ratify now?”

Thornham said to the audience: “The problem with that is, if you started a UPC action now, and then the UK abandoned the UPC, how would you feel about trying to untangle that action?”

“Most people seem to agree that trying to find a way for the UK to be in would be better, as designed. I think it may be better to start a system where it’s clear on whether the UK will be in or out.”

“Politically, applying EU law in its entirety is very difficult. No politician will want to challenge that. It’s going to take some time before the UK government is in a position to make any decision.”

Ramsay responded to this, arguing: “Saying that we need to sort it out first sounds very nice, but these kinds of projects—you could compare them to an oil tanker. It’s very difficult to get them started. Once you start them its very difficult to stop them, and once you stop them its very difficult to get [them] started again.”

“Pausing the project, waiting for a decision further down the line, will make the UPC a Brexit issue. This is not an option, I would say.”

When asked when the industry can expect any clarity on the UPC, another panellist, Dr Ben Grau, patent attorney at Murgitroyd, suggested it could be “up to five years before we reach a solution”.

Ramsay responded: “It will not take time. It will not be frozen. There will be a swift decision. The UK government is aware of this. There is a clear political will not to delay the UPC. If we cannot get option A, the UK ratifying the agreement, we must move swiftly to option B.”

He went on to say that if the UK opts out of the UPC, or if it cannot provide a definite answer, the agreement would have to be re-negotiated.

Members of the audience asked whether the IP profession was putting too much emphasis on the UPC, to which Ramsay replied: “You do not need to be a political scientist to see that Brussels is saying there will be no negotiation.”

“This is why this is not a Brexit issue, de facto. That is why it’s very difficult to negotiate something beforehand, because that would be cherry picking.”
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