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Summer Summary

rainA Bank holiday plus a torrential downpour must mean that summer’s just about over. Just in case you missed us over the last few weeks, here’s our summer round-up from mid-July through to the end of August. (more…)

Is it worth suing? – a gambler’s perspective

file000745382336In a previous post (“Before you sue …” of 29 April 2014), I considered the business and other relationships that might rationally inhibit your client from suing for patent infringement, or even making any approach to the infringer.  Now suppose that the client is in fact not so inhibited (and assume also, as in the previous post, that he is not a PAE = patent assertion entity = NPE = non-practising entity = patent troll).  Should legal costs deter your client from suing?  In (for instance) big pharma disputes, both the significance of the infringement and the financial resources of the patent owners are usually such that legal costs are ultimately not a deterrent to litigation.  But if the scale of infringement is moderate – with the client expecting if he wins to gain lowish millions in damages and future royalties – legal costs need careful consideration before litigation is begun. (more…)

Before you sue for patent infringement, or even threaten to …

Court (Small)The above title is perhaps a trap. The word “threat”, leaps to the eye; but be reassured that the author is assuming that any approach to the other side would be couched so as not to be actionable under Section 70 of the UK Patents Act. The point being made is that, even before any such approach is made (let alone before an action is begun), the client needs to reflect.

Unless the client is a patent assertion entity (=PAE=patent troll=non-practising entity=NPE) or, to a degree, a pharmaceutical company or the like, his proposed action or threat of action cannot be considered in isolation from his business more generally. (A PAE has no business to worry about other than threatening or litigating; while in pharmaceuticals and the like, patents and therefore patent litigation are a key part of the business model.) With these exceptions, an immediate concern should be the risk of a countersuit, ie an allegation by the other party that the client infringing one of his patents. In many technical areas, mutual patent awareness is poor between competitors; as a result, the client about to make the threat may be unwittingly infringing a patent of the other party, and the other party may be just as unaware of the latter infringement until, provoked by the threat, he looks for it. (more…)

Why not file your priority application as an EPC?

epo_member_states_10_10The “obvious” thing for a UK patent applicant is to file a UK priority application; but in a survey of 10 major UK companies with in-house departments, 5 had a policy of filing EPC priority applications with a search request. An Espacenet search revealed that BASF, Bayer, Philips, and Siemens were also filing EPC priority applications. In total, the EPO receive 30 000 “first” applications per year.

The author may as well not beat about the bush: in his opinion, in many technological areas (subject to national security considerations), EPC priority filings should be the norm for any UK-based serious international patenter (and at least for German- and Dutch-based ones, too). And a client who is deterred by the upfront cost of an EPC priority filing compared with a UK priority filing arguably should not be in the patenting game at all, when the total cost of patent protection in the G7 countries over the full 21 years from priority is around £ 100 000 in current prices, and when even coverage only in the UK, the USA, and Germany costs a substantial proportion of this. (more…)

Intellectual property in the Dilbert cartoons, and other things

Dilbert Mark


For me, three writers on management stand out:

• Peter Drucker (1909-2005), especially for The effective executive (1967). The effective executive contains robust – often uncomfortable –management truths (notwithstanding its inevitably dated case studies); it is short; and it is organised in a straightforward, unflashy manner which is appealing to the legal practitioner. Drucker also said (with resonance for any managing partner or in-house head of intellectual property): “As a manager, you clean up messes. Who the hell wants to do that?”

• Lucy Kellaway, who writes weekly in the Financial Times, fuelled by vacuous and incoherent pronouncements of corporate “leaders” and by insights communicated to her by frustrated employees. She questions the value of any new management ideas beyond those of Drucker and of “total quality management” of the 1980s.

• And finally, Adam Scott, who in the daily comic strip Dilbert has created a simultaneously surreal and recognisable US ICT company (ICT= information and communications technology). In this company, the nerdy Dilbert, the ferociously efficient Alice, and the lazy Wally work for the “pointy-haired boss” dedicated to “management speak” – while apparently failing to notice that they have non-human colleagues such as Dogbert, Catbert, and Ratbert. (UK residents can find Dilbert in the Daily Express and the International New York Times, as well as online at www.dilbert.com.)

Scott’s characters encounter not only management fads but also legal including IP matters. (more…)

Branding – is monolithic best?

BMW: A monolithic brand. Shown here on the IPcopy news wagon

BMW: A monolithic brand. Shown here on the IPcopy news wagon

Consider a company selling non-pharmaceutical products to the general public (pharmaceutical products raise special issues, not discussed here).

The possible extremes of branding architecture are these:

  • “one product [or product type, or service (type)], one brand”;  and
  • “monolithic”. (more…)

Professional ethics – a bit like Isaac Asimov’s Laws of Robotics

"A Dalek may not injure a Timelord or, through inaction, cause a Timelord to come to harm ! Son, we need to have a serious chat"

“A Dalek may not injure a Timelord or, through inaction, cause a Timelord to come to harm! …. Son, we need to have a serious chat”

Isaac Asimov (1920-1992) is one of the Greats of science fiction.  While practising as a chemist in the 1940s, he depicted in his stories a world in which, from the late twentieth century, humanity was increasingly served by robots of high intelligence.  To prevent these robots from taking over from, or destroying, humanity – or being abused by one human against others – they were programmed with the three “Laws of Robotics”:

“1 – A robot may not injure a human being, or, through inaction, cause a human being to come to harm.

“2 – A robot must obey the orders given to it by human beings except where such orders would conflict with the First Law.

“3 – A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.”

These laws were admirably crafted, but had enough ambiguity to support ingenious stories.  The stories are still readily available (the above laws are as set out in a recently purchased copy of I, Robot.)

A legal practitioner such as an English solicitor or a UK and European patent attorney is likewise subject to hierarchical rules embodied in codes of conduct of various types.  In the public interest, their behaviour is constrained, including their response to client instructions.  Indeed, with a little licence, one may reformulate these ethical codes into three-part form corresponding quite well to the three Laws of Robotics: (more…)