Intellectual Property (Unjustified Threats) Bill [Lords]

Debate between Lord Johnson of Marylebone and Bill Esterson

3rd reading: House of Commons & Report stage: House of Commons
Tuesday 21st March 2017 Commons Chamber

[The Minister for Universities, Science, Research and Innovation (Joseph Johnson)]

This new clause would require the Secretary of State to issue a report on the impact of the Government’s plans for exiting the European Union on the provisions in the Bill within 12 months of it coming into force.

The Bill does not take forward any EU obligations. The IP unjustified threats provisions do not derive from EU law. They are “home grown” provisions that were first enacted for patents back in the 19th century. The important protections provided by the Bill will not in themselves be changed by Brexit. Businesses pushed for clarity and certainty about how they can contact others over IP disputes, and the Bill will deliver that. Our leaving the EU does not alter that. Of course some IP rights are EU-wide, and the Bill will apply properly to those rights. The threats regime will be consistent across all relevant rights that have effect in the UK.

Furthermore, the Bill will ensure that our UK threats regime works appropriately with the proposed unitary patent and unified patent court when they come into effect. The hon. Member for Sefton Central (Bill Esterson) asked about the UPC following our exit from the EU. The options for the UK’s intellectual property regime after our exit, including our relationship with the unified patent court, will be the subject of negotiation, and it would be wrong to set out unilateral positions in advance. None the less, our efforts will be focused on seeking the best deal possible in negotiations with our European partners, and we want that deal to reflect the kind of mature co-operative relationship that close friends and allies enjoy.

As long as we are members of the EU, the UK will continue to play a full and active role, and making sure the IP regime continues to function properly for EU-wide rights is an example. The UK’s involvement in the EU IP framework after exit is not a matter for the Bill; it will be part of the EU exit negotiations, which of course have not yet begun. It is likely that those negotiations will still be in progress at the point at which the new clause would require us to report. Publishing the suggested report would be unnecessary and could well undermine our ability to negotiate the best deal for Britain in this area.

The hon. Gentleman asked about EU-wide IP rights on Brexit. Of course we are already talking to businesses and to other stakeholders about this important issue. There will be time to address it fully and properly during exit negotiations. Naturally, we will want to see the best outcome and one that supports our innovative businesses. He asked also about EU trade marks and designs. We recognise that users will want clarity over the long-term coverage of those rights. We acknowledge the importance of involving users in the consideration of these issues, and we are working with stakeholders at the moment to gather views on how to address their concerns.

The hon. Gentleman asked on a number of occasions about the EU trademark reform package and the directive. On balance, we think that the reform package is a good one, with modernisations that will make the overall system easier and cheaper for businesses to use.

We are committed to getting the right deal for the UK and we will work with Parliament to ensure a smooth and successful exit. The new clause would not help us in any of this work; it is unnecessary and potentially harmful to the UK’s interests. For that reason, I ask the hon. Gentleman to withdraw the new clause.

[Bill Esterson]

I am glad that the Minister said that he was already having discussions with businesses; that is incredibly important. I urge him to make it clear very publicly, sooner rather than later, exactly what the nature of those discussions are. Businesses are already exceedingly worried about the consequences for intellectual property. I thank him for picking up the points that I made about the relationship between EU patent law and UK patent law. I think that he understands that a great deal of reassurance is needed. I do not agree that we would make life more difficult by having this requirement on Government. In fact, it is a sensible move. I would be surprised and very concerned if we did not see a degree of reporting back during negotiations on these and many other matters. None the less, he has put forward the Government’s view in response to the points that I have raised, so I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.



Clause 1

Patents

--- Later in debate ---

[Joseph Johnson]

One of the key purposes of the Bill is to simplify an important but complex area of intellectual property law, making it more accessible and easier to use. One way in which it does this is by setting out a clear statement of those acts that a rights holder can safely refer to in a communication, and that will not trigger an unjustified threats action. This helps to encourage rights holders to communicate with the trade source of an alleged infringement. It would include those who manufacture or import patented products or use patented processes, for example. Such acts are known as primary infringements.

Amendments 1 and 3 seek to make it allowable to approach someone who explicitly claims to be a primary infringer. I am not convinced that there is problem that needs to be solved, but, in any event, there are two key points. First, under the reforms as they stand, a rights holder can already communicate with potential infringers of all types, including those identified by amendments 1 and 3. The Bill provides clear guidance on how this can be done. The provisions therefore make it easier for parties, including small and medium-sized enterprises, to communicate and resolve issues without the need for litigation. Secondly, it is perfectly allowable to make a threat to anyone so long as that threat refers only to manufacturing and importing, or other primary acts. Someone making such a threat would not be at risk of being sued, even if the recipient was falsely claiming to do those acts. For these reasons, as well as the additional complexity introduced, I do not accept that amendments 1 and 3 are appropriate.

Moving on to amendment 2, I agree it is important that issues of infringement can be raised early, before real commercial damage is done. For that reason, the Bill already allows threats to be made in relation to future or intended acts of primary infringement, so amendment 2 adds nothing in that regard. Furthermore, the Bill already allows the rights holder to refer to certain secondary acts when communicating with an alleged primary infringer. When someone is manufacturing an allegedly infringing product, the rights holder can also discuss the retailing of that same product. Users wanted this, as it is pragmatic and helps to save time and money, but it would not be right to extend this further and allow threats to be made to that same manufacturer about the retail or stocking of other products that they did not make themselves. That could damage businesses that retail products acquired from a legitimate manufacturer, and would disrupt the ability of that legitimate manufacturer to operate in the marketplace—an outcome that the threats provisions exist to prevent.

Finally, it is highly uncertain for businesses what would be considered to be “fundamentally similar” acts of infringement, as set out in the amendment, and litigation on the meaning would no doubt ensue. If the intention is to capture only similar products, I do not think that is achieved.

These amendments would introduce additional and unwelcome complexity. They would blur the line between who is protected from threats and who can safely be approached. Rather than benefiting rights holders, this could instead make getting legal advice more difficult and costly. For those reasons, I ask the hon. Gentleman to withdraw his amendments.

[Bill Esterson]

We appear to have rehearsed, more or less word for word, what happened in Committee. I am disappointed by the Minister’s responses, because he does not appear to have picked up on the concern about the imbalance between larger and smaller businesses—a fundamental element of what we think is missing from the Bill as drafted. I would like greater clarity from him, but perhaps that will come as the Bill is implemented. I urge the Government to consider the impact on smaller businesses. On own label, apparently once the rights holder has found out that an own label product is not made by a supermarket, such action would have to cease or it would be covered by the legislation. That was certainly our intention in the amendment.

I hope that our points about the need to protect smaller businesses have been well made. I thank the Minister for his responses, and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Third Reading

Draft Enterprise and Regulatory Reform Act 2013 (Consequential amendments) (Bankruptcy) and the Small Business, Enterprise and Employment Act 2015 (Consequential amendments) Regulations 2016

Debate between Lord Johnson of Marylebone and Bill Esterson

Monday 21st March 2016 General Committees

[Joseph Johnson]

Let me start by passing on the apologies of the Minister for Small Business, Industry and Enterprise, who is in Redcar this afternoon and would otherwise want to be here. She is attending to long-scheduled business up there relating to situations of which Members are well aware.

On personal bankruptcies, the estimated cost savings are in the range of £7.3 million to £15.3 million and are dependent on the overall level of debtor applications. The immediate cost savings to the courts will be made on staff, administration and court hearing times. Depending on the case loads, savings to the courts have been estimated at between £8.3 million and £16.6 million.

[Bill Esterson]

I understood the Minister’s second point about court savings, but will he clarify exactly who will accrue the first set of savings—the £7.3 million to £15.3 million?

[Joseph Johnson]

To clarify, let us settle on £8.3 million to £16.6 million as the ballpark estimated savings to the courts from the measures.

If the online application is unsuccessful, the adjudicator must give the debtor a reason for refusing to make a bankruptcy order. The debtor can then appeal or reapply if they wish—on first appeal, to the adjudicator, and on second appeal the matter is referred to a court. That route will be available on second appeal.

Those who do not have access to the internet will be able to apply for bankruptcy with the assistance of third parties such as a friend, relative or approved debt adviser. The system is designed to allow screens to be populated on the applicant’s behalf, with the applicant’s approval. The applicant must check that the application data are accurate and is responsible for submitting the application themselves. Financial intermediaries can be used as a last resort—for example, a debt adviser might be used in a complex case. Insolvency Service officials can provide assistance by telephone in filling in online forms.

On the Small Business, Enterprise and Employment Act 2015 measures, the hon. Gentleman asked how insolvency practitioners will be affected by the tighter reporting timeframe. There was a mixed response to the consultation on reducing the reporting period from six to three months. Concerns expressed included—

[Joseph Johnson]

I am able to tell the Committee that the adjudicator’s role is not a judicial one. It is a role specifically created for determining applications for debtors applying for their own bankruptcy. All other routes into bankruptcy where judicial input is required will continue to be heard in court. I will happily furnish my hon. and learned Friend and, indeed, the Committee, with any further information needed to answer that question.

[Bill Esterson]

Will the Minister give way?

[Joseph Johnson]

I will not be able to give the hon. Gentleman any further information on that point but I will happily write to hon. Members with additional information.

[Bill Esterson]

It would be helpful to ensure that the Minister is able to answer the question in full. Just to clarify, have the Government now accepted that creditors will not be included? Will he confirm that the Government have no intention to extend the provisions? That would be very helpful. Before the Minister moves on, I asked a question about reducing the stigma of bankruptcy. Are the measures seen as a way of doing that, and does the Minister feel that they are a way of avoiding an increasing use of payday loan companies and other high-cost forms of credit?

[Joseph Johnson]

In answer to my hon. and learned Friend’s question and the hon. Gentleman’s question: yes, that is the Government’s intention. We do not intend to extend the measures to other forms of bankruptcy. The consultation responses that we received showed support for other routes into bankruptcy, such as creditor petitions, to remain within the court system. The hon. Gentleman made a point about reducing the stigma of bankruptcy. That is a long-standing objective of this Government and previous Administrations, and the measures will support that goal.

On the rest of the questions, insolvency practitioners will be affected by the tight reporting timeframe. There was a mixed response from the consultation on reducing the reporting period from six months to three months. Concerns expressed included that insufficient information would be available to office holders in the time available and that that would lead to less misconduct being reported. However, earlier reporting will enable earlier investigation, and the online reporting system allows further information to be submitted in the minority of cases where new information comes to light after three months.

On the question about the savings for insolvency practitioners, we estimate the net benefit to insolvency practitioners at about £3.4 million per annum. That benefit is calculated from expected time savings and completing online forms instead of paper forms, which will enable more money to be returned to creditors. We have had a useful debate and I ask the Committee to support the changes required to the affected primary and secondary legislation. I commend the regulations to the Committee.

Question put and agreed to.

Trade, Exports, Innovation and Productivity

Debate between Lord Johnson of Marylebone and Bill Esterson

Wednesday 13th January 2016 Commons Chamber

[Joseph Johnson]

I shall come on to exports shortly, but we remain strongly committed to that target. It is right that we set ourselves a challenging and ambitious target for exports. The whole Government are working towards achieving that goal.

Our regions are at the centre of our plan. A crucial part of the Government’s plan is to devolve powers to local leaders and enable them to drive growth, attract investment and create jobs, as we are doing with the development of the northern powerhouse and the midlands engine. We have secured an historic city deal for Glasgow and the Clyde valley, and I am pleased that discussions are under way for Aberdeen and Inverness, too.

The manufacturing sector is a part of this renewal. While our manufacturing sector faces headwinds, as we have seen in recent statistics, from the sharp fall in the oil price, a strong pound and slowing external markets, manufacturing output since 2010 has expanded by 18.5%, and by 17% in Scotland. Quite contrary to the assertion of the hon. Member for Dundee East (Stewart Hosie), there are more manufacturing jobs, too, than in 2010. There are 90,000 more of them in our economy today than in September 2010.

While we are about it, let us not miss an opportunity to celebrate the remarkable growth in motor vehicle manufacturing. The 6.4% increase over the past year underscores an historic transformation in that key industry’s fortunes which has been under way since 2010. The Government need no lessons from Opposition parties on manufacturing generally, given that, as many know, it suffered its fastest decline on record as a share of GDP under Labour.

Business investment is increasing too. It has been growing by well over 4% a year in real terms since 2010. Specifically, investment in research and development rose to £19.9 billion in 2014, well up on where it was in 2010. The record levels of support that the Government are providing for innovative businesses through our R and D tax credit are a big part of the reason for that. Our support rose from £1.1 billion in 2010 to £1.75 billion in 2013-14, and the tax credit is helping more than 18,000 businesses to engage in innovative R and D investment.

The hon. Member for Dundee East said that there was a missed opportunity for Scotland. I disagree; the evidence shows otherwise. The hon. Gentleman should, perhaps, note that there were 1,045 successful claims for R and D tax credit from Scottish businesses in 2013-14. He should also recall that the five parties in the Smith commission agreed that corporation tax and its associated reliefs should not be devolved, on the basis of a strong body of evidence that such a move would not be in Scotland’s interests. It was striking that neither Opposition party joined businesses in welcoming our plan to cut corporation tax to 18% by 2020. Companies throughout the United Kingdom will benefit from that, just as they are benefiting now from our R and D tax credit.

The hon. Member for Livingston (Hannah Bardell) mentioned the important issue of equality. We are active in that respect as well. There are more women in work than ever before—a record 14.6 million—and the number has risen by nearly 1 million since 2010. We are also taking steps to eliminate the remaining gender pay gap through new transparency requirements, and, as part of our broader goal of achieving full employment in our economy, we recently set out our aim of halving the disability employment gap. This is not the uncaring, uncompassionate Government that the Opposition parties seek to portray.

Let me say something about the business environment. As part of our economic plan, we want to make Britain the best place in Europe in which to do business, with a business environment that supports investment, productivity, growth and job creation. When Labour was in government, corporation tax stood at 28% and national insurance was set to increase, which would have had a devastating impact on jobs. By contrast, this Government have shelved the planned national insurance increase, increased investment allowances, and introduced the most competitive corporation tax regime in the G20. While we are about it, we are deregulating too, building on the steps that have been taken since 2010. We are committed to cutting the cost of red tape by a further £10 billion during the current Parliament. It is no surprise that Britain has just leapfrogged others in the World Bank’s global ease of doing business rankings to become the top country in the G7 in which to do business.

Let me now turn to another aspect of today’s debate: trade and exports. Our long-term economic plan will enable us to move towards an economy with a stronger export performance. While we are, of course, facing real global headwinds, including a slowdown in China and continued weakness in the eurozone, we are backing British businesses with global ambitions. The number of United Kingdom companies that are exporting is growing strongly—it has increased by 18% since 2010—and Scottish companies are also exporting more. In 2011 there were 9,300 Scottish exporters; now there are 11,100. Our trade deficit is responding, and narrowed in the three months to November.[Official Report, 27 January 2016, Vol. 605, c. 2MC.]

As Members have noted, our £1 trillion export goal is rightly ambitious, and much depends on factors that are out of our control. What we can do as a Government is offer effective support for exporters, and push for ambitious trade agreements that will help them to break into new markets. That is why the Government have recently established the cross-Government exports implementation taskforce to drive a new and tough whole-of-Government approach in support of our export target and our aim to increase by 100,000 the number of UK firms exporting by 2020. The Government are also pushing hard for ambitious trade deals that will remove tariff and non-tariff barriers facing British exporters and open up new markets.

[Bill Esterson]

A number of Members have mentioned the steel industry. The Minister for Small Business, Industry and Enterprise questioned my comments about state aid rules so will the Minister confirm that the European Commission has now said that energy-intensive industries, including steel, can benefit from state aid rules, and that Belgium, France, Italy, Germany and Spain have all benefited in this way?