Intellectual Property (Unjustified Threats) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 15th June 2016 Grand Committee

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, it was with some considerable diffidence that yesterday I put my name down to speak in this Second Reading debate. I would not have done so had not my noble and learned friend Lord Walker of Gestingthorpe been tied up as chairman of the HS2 Bill Committee and unable to take part today. He is a great expert in this field, and I certainly am not. Realistically, I am virtually as much of a layman as the noble Lord, Lord Hodgson, who has just spoken.

As it happens, my only direct experience in this particular area of the law was sitting with my noble and learned Friend, Lord Walker of Gestingthorpe—Lord Justice Robert Walker, as he then was—in the Court of Appeal in 1999 in a reported case called Unilever v Procter & Gamble, which concerned more particularly the interrelationship between the jurisprudence on intellectual property threats and the without prejudice rule. My noble and learned friend Lord Walker gave the lead judgment, while I gave an altogether shorter concurring judgment, which I began thus:

“Coming as a stranger to this arcane world of patent infringement threats actions, I am struck by the initial difficulty in understanding just what is the policy underlying section 70 of the Patents Act 1977”.

I then turned to examine some of the preceding and subsequent law, continuing:

“I must say that I find the position today”—

this of course was 1999—

“most curious and unsatisfactory. Although, essentially, I take the policy to be … that rival manufacturers may threaten each other but should not threaten each other’s customers with the objective of inducing them to cease dealing with their rivals … it cannot be pretended that the legislation is this narrowly confined”.

In that context, I then referred to the Cavity Trays case, which is one of those discussed in the Law Commission’s 2015 report and which, in 2004, led to an earlier change in our law.

However, as recorded in paragraph 1.23 of the Law Commission’s report, that change has not yet been extended—as it certainly seems to need to be—from patent law to the law of trademark and design. I confess at once that in truth I remain a stranger in this arcane world of unjustified threats in intellectual property cases, but I read the Law Commission’s report with considerable interest and no little admiration. It has certainly persuaded me that changes in the law are now required and that the Law Commission’s own proposed Bill is indeed the right way of seeking to achieve these changes and reforming this undoubtedly problematic area of our law.

I do not intend at this stage to comment in detail on the present problems and their proposed solution. I recognise of course, as another noble Lord did, that Professor Sir Robin Jacob—another great expert in intellectual property law, with whom, again, I used to sit in the Court of Appeal—fundamentally opposes the evolutionary model of reform which is now advanced. One only has to look at paragraphs 1.44 to 1.48 of the report to see his quarrel with that. However, I find the Law Commission’s response to this view, which is backed by the great majority of consultees, to be convincing. By all means let further work be done hereafter on the possibility of substituting for the existing, somewhat elaborate and complicated statutory scheme a new general tort of false allegations. But in the meantime let us deal with the identified, specific problems, which require an altogether more immediate solution.

I am struck not only by the quality and cogency of the report but by paragraphs 4.8 and 4.9, under the heading, “Stakeholder comments on the Bill”. They indicate that it commands the substantial support of a host of experts, including not least two Lord Justices—both specialists in this field—a High Court patent judge, others to whom the noble and learned Lord, Lord Hope, referred, the Law Society, the IP committee, the Chartered Institute of Patent Attorneys, the Intellectual Property Office and of course in Scotland that most distinguished academic, Professor Hector MacQueen of the Scottish Law Commission.

Above all, I make the point that, as we all know, this is a Law Commission Bill and as such I suggest that it deserves to be supported unless compelling arguments are raised against it. We often complain—in my view, rightly—that generally speaking there is not enough pre-legislative scrutiny in our parliamentary process. But Law Commission Bills par excellence have manifestly enjoyed pre-legislative scrutiny. Plainly, there has been here an exhaustive process of progressive consultation and analysis. The Law Commission itself is an admirable body which I strongly support. Only the very best lawyers serve upon it and presently they serve under the expert guidance and chairmanship of that most estimable member of the Court of Appeal, Lord Justice Bean. I echo what my noble and learned friend Lord Hope of Craighead and, indeed, the noble Lord, Lord Hodgson, have just said about this topic generally and Law Commission Bills. With them, I welcome the Government’s response to this report.

I, too, therefore wish the Bill a smooth and swift passage, with or without the sort of tweaking which the noble Baroness, Lady Bowles, suggests. I support the Motion to give it a Second Reading.