Intellectual Property Bill [HL]

Baroness Brinton Excerpts

Wednesday 22nd May 2013 Lords Chamber

[Baroness Brinton]

My Lords, I will start by declaring an interest. My husband is a research engineer who works for Cambridge Consultants, which works with clients to develop patents and copyright protection. I also remind the House that in the past—it is not a current interest—I was a venture capitalist, helping mainly academics spin ideas out of university and into the commercial world. That was a long time ago, in the 1980s.

Before I start I will address the comment made by the noble Lord, Lord Howarth, who said that perhaps we have too much protection. I disagree with him very strongly. It is important that people who have designed items, whether that is electronic design, music or a creative work of art, should be recognised and should have any recompense due to them for that. We live in a world where the counterfeit and fake are commonplace, and they are a form of theft. One thing the Bill will do is to make it that much harder for those who want to go against the authorship and ownership of works. The noble Lord raised a valid point about monopoly and the issue of the Windows operating system. However, that is not a case of intellectual property but of competition law, which is a different matter.

I support the Bill—almost exclusively across it—but I will focus my remarks on three clauses, given many of the comments made by noble Lords earlier in the debate. I will address Clause 4 on the arrangements for teaching and experimentation not infringing design rights, Clause 16 on the unified patent court, and Clause 19, which provides qualified exemption from freedom of information requests for pre-publication research.

I will start with the last clause. I had hoped that we would not hear any noble Lords opposing the inclusion of this clause, so I was slightly concerned that my noble friend Lord Clement-Jones said that we would have to come back to look at this in further detail in Committee. We fought long and hard during the passage of the Protection of Freedoms Bill to have a review of this case. We argued that it was absolutely essential because those engaged in research, including universities and publicly-funded research centres, would be at risk from the increased access to information set out in the Protection of Freedoms Bill. Although we did not win the argument then, I was grateful that the Minister undertook to pass the complex and thorny issues to the Justice Committee’s post-legislative scrutiny committee in another place. As we know, it confirmed that there was a need for a specific exemption, and I thank the Government for the addition of Clause 19, which sets this out.

The clause makes it clear that the exemption requires that disclosure of the information would be prejudicial to the interests of the research programme, of the institution or even the individual undertaking it, or of an individual participating in it. Therefore it is not a carte blanche for those carrying out research to hold anything private longer term. It is also important to note that exemptions with similar effects exist in the Freedom of Information (Scotland) Act, and in Irish and US legislation. While I, too, am a unionist, I say to the noble Lord, Lord Browne of Ladyton, that Scotland got it right first on this one.

The key reason that this exemption is necessary is, as I have already mentioned, the risk of harm to the quality and reputation of UK research. Misleading information can enter the public domain before it has been cleaned, checked, and subjected to analysis and—importantly—to peer review. Researchers can be challenged on their approach or findings before they have had a chance to address flaws in their work. Very particularly, in relation to health-related research, individuals who get some information might misdiagnose or medicate themselves on the basis of misleading information that is gaining currency but is supported by incomplete research. That could damage the UK’s reputation for quality research.

As other noble Lords mentioned, it could also undermine the competitive position of UK research. University research is fundamental to our global competitiveness, and is considered second only to that of the United States. It is also a highly competitive field. Premature disclosure of research information will enable international competitors to profit from work undertaken in UK universities before the originators have had a fair opportunity to protect their ideas or secure grants for future research. I am sure that that is why the US legislated in this area.

It may also be difficult or impossible to secure publication opportunities in reputable journals if findings are already in the public domain. Publication records influence university income via the Research Excellence Framework, as well as universities’ ability to secure future grants and commercial contracts, and, importantly, to attract academic staff and students. This harms our universities’ competitive interests, if not necessarily their commercial ones.

Research at an early stage may have a potential but not actual commercial value, and it is worrying that without this clause it is possible to discourage research partnership with commercial and charitable bodies. We went through quite specific examples during the passage of the Protection of Freedoms Bill that showed that had this continued, the UK would not have been a good place to have a commercial arrangement. Universities were already beginning to have to draw up very complex contracts with their commercial partners to try to protect them from this.

I will give one example. In response to a freedom of information request, one university stated:

“Formal analysis of the data at individual-participant level is still being undertaken by the trial team. We believe releasing data at the individual-participant level would prejudice publication of future study papers. It would also inhibit”,

the institution,

“from maximising the output from the information obtained and could set a precedent that may affect our”—

the university’s—

“ability to attract research funding and participants in the future”.

Therefore, this is not hypothetical. It is likely to cause damage, and I welcome the inclusion of Clause 19 to provide protection.

I now move to Clause 4, on exceptions to the infringement of design rights. As others have already mentioned, we had considerable debate during the passage of the Enterprise and Regulatory Reform Bill on this very issue. I respect and understand the concerns put forward by my noble friends Lady Buscombe and Lord Clement-Jones in those debates and others, making sure that those who had designed things had the right to any recompense and recognition that came thereby. However, taken in the extreme, it has meant that institutions, whether colleges, specialist conservatoires or universities, would not be able to use examples of unregistered design to teach the next generation of brilliant designers in this country. That seems completely counterintuitive. I am therefore delighted that Clause 4 remedies that. The noble Earl, Lord Erroll, expressed a concern that this would not pick up the points that we discussed during the passage of that Bill. As I understand it, it does, but if I am wrong, perhaps the Minister will clarify that.

Finally, I turn to Clause 16, which establishes the unified patent court system. I am very grateful to the noble Lord, Lord Walker of Gestingthorpe, who in his maiden speech eloquently set out the difficulties of the old system, some of which I remember from the 1980s. Clause 16 will benefit UK businesses, especially, as has been mentioned, SMEs and researchers, but I will focus on individual entrepreneurs who do not necessarily have the support or the funding that companies may have, or that institutions have through researchers.

Comments have been made about saving money, which is absolutely critical. We absolutely must be able to protect inventions and designs and sell them to different markets overseas. What is worse, however, when there has been an infringement, is that the cost of having to sue through a number of courts to get justice has often killed the product itself. This has come at the worst moment for a patent holder, who may be trying to get the next round of funding to commercialise their product. It is not just individuals and small businesses. Dyson spends a very large amount of money rightly defending the patents on its products. Some of the reduction in costs here and the simplification through the unified patent court system will remedy this.

London is a natural home for such an institution, particularly with the strength of the legal market in the capital, which I understand adds £6 billion gross in value to the UK’s economy annually, as well as helping to offset any loss of existing business to the parts of the new court that are to be established elsewhere. I hope that it would certainly sit in session in Edinburgh, too.

It is important to make the most of the opportunity presented by the new court to reinforce London’s leading position in the provision of legal and financial services, all of which need to be around when developing patents and copyright designs. The Lord Chancellor’s Plan for Growth: Promoting the UK’s Legal Services Sector, updated in March, aims to,

“promote the UK as the global centre of legal arbitration and commercial law services”,

while the Unlocking Disputes campaign, led by TheCityUK and the legal professions, is also working hard to promote London’s dispute-resolution facilities to a worldwide audience. The placing of the universal patent court will give London real strength as a financial and legal centre as we start to move out of the difficult time of austerity. I welcome the EU-level agreement we have secured that the branch of the central division will be based in London, but the detail of how it will operate is critical.

Will the Government ensure that the fees for using the court are affordable for micro-businesses, SMEs and individual inventors? Will the Government take a central role in negotiations on the rules of procedure for the unified patent court to ensure that lower-value patent disputes are dealt with cost-effectively? What will happen when an invention encompasses multiple forms of technology and falls within the jurisdiction of different branches, whether one patent or a bundle of patents? Guidance will be critical, possibly even in regulation. Will the new unified patent court be included in the review set out in Clause 20? It clearly makes sense for this to happen.

In conclusion, the Bill has much to commend it. I believe it has the capacity to make it easier to register and protect designs and inventions while giving very specific protection to those public bodies undertaking research so that their work will not be compromised by freedom of information requests pre-publication. Finally, I join the many others who said that the successful negotiations regarding the unified patent court demonstrate once again that there are some real successes in our membership of the EU. I would like to hear the EU equivalent of, “What did the Romans ever do for us?” asked more frequently. In this case I believe that it will help business growth in both the UK and the EU economies, which is absolutely vital as part of our path to economic recovery.