This is a blog for creators and innovators and entrepreneurs and investors in the West Midlands. Creators - artists, authors, composers, designers and performers, writers - and innovators - inventors and those who apply existing technology in a new way -make the products, processes and services upon which society depends. Entrepreneurs make them available to us and investors put up the money to make it all possible.
All of them depends ultimately on intellectual property - the bundle of rights that protect investment in innovation and creativity. Such rights are not easily obtained and are frequently challenged because they confer monopolies and exclusivity. Because they are not easy to get, enforce or maintain, many of the businesses that need those rights most fail to take advantage of them.
That is unfortunate because preserving the competitive advantage that innovation or creativity confers has a lot to do with the success of an economy. In Europe, we have only to look at Germany whose inventors and businesses applied for 25,086 European patents in 2916 compared to 5,142 for ours in the UK. Even Switzerland with one-eighth of our population managed 7,293 applications. Overseas, China, Japan, South Korea and the USA applied for more European patents than we did and many times more than still in their own home patent offices.
The big difference between Germany and other continental countries and us is that the Mittelstand - roughly what we would call SME (small and medium enterprises) - are much more likely to patent their inventions, trade mark their brands and register their designs. The main reason for that is that it was considerably cheaper and easier to enforce intellectual property rights in those countries than here. As I said in "Litigation Costs in England and Continental Countries" in Dispute Resolution it is still true for big ticket litigation in the Patents Court but the authorities have been trying to do something about the differentials in costs.
First came Intellectual Property Office opinions in 2004. These are authoritative opinions by patent examiners on whether a patent is valid or whether it has been infringed which cost £200. I was present at a consultation at the IPO in 2003 which was attended by the Comptroller and Sir Robin Jacob who was then a judge of the Patents Court and the presiding Chancery judge in Birmingham when the idea for this service was first mooted. I also arranged a workshop in Leeds in 2005 with IP insurers when we explored how they could make it easier for IP owners to get after-the-event insurance.
Next came the IPO's mediation service for which again I arranged a conference with the IPO and World Intellectual Property Organization. I am a member of the WIPO's panel of neutrals and also one of the external mediators on the IPO's list of mediation providers. I have a lot of experience of alternative dispute resolution both as a neutral and as counsel.
Finally, time limits and cost caps were introduced for the Intellectual Property Enterprise Court ("IPEC") together with a small claims track which brought most IP litigation costs in this country more or less in line with those on the continent. Also, by pressing ahead with ratification of the UPC Agreement the government is doing all it can to reduce the costs of big ticket patent litigation by advancing the Unified Patent Court and unitary patent despite Brexit.
There has been some increase in demand for IPO opinions and the use of IPEC but not a commensurate increased in the number of patents that are sought by British inventors. When I have tried to find out why businesses have not made more use of the IP system I am told that "IP is for big businesses and not for the likes of us." That is just not the way their German, American, Korean, Japanese or Chinese counterparts would think.
The problem is one of perception and that is where this blog comes in. There are a lot of services in the West Midlands that are either free or reasonably priced. There are, for example, free IP clinics at the Library of Birmingham between 17:00 and 18:30 every Monday evening. All you need to do is call 021 303 6800 or email email@example.com to book a slot. The Library can also help you with many other services including workshops, seminars and introductions. If you want to stop someone from selling knock offs of your products or using a brand that is similar to yours you can now bring a claim virtually risk-free for a few hundred pounds in the IPEC small claims track, There is also low-cost IP insurance and services like Legal Cost Finance that let you spread the cost of first class advice and representation.
Although I now live in Yorkshire I have a lot of connections with the West Midlands. I was born in a clinic in Manchester but my parents brought me home to Much Wenlock where they were then living. My first school was in Lichfield and when I came to the Bar I spent a lot of time in the Walsall, Wolverhampton and Birmingham County Courts. I was in one of the first Chancery cases in Birmingham after it got Chancery jurisdiction. I have many clients in the region both big and small.
If you want to discuss this article or any other matter relating to IP or related areas of law, call me on 020 7404 5252 during office hours or send me a message on my contact form.