Brexit Briefing - April 2018

Jane Lambert

A rather more interesting Brexit Briefing this month because the UK has ratified the Unified Patent Court Agreement.  The article sets out the background to ratification and considers whether it will make a difference. 

Also discussed are the proposals to avoid a hard border on the island of Ireland and indications that HMG will accept the backstop arrangements for birder checks between Great Britain and both parts of the island of Ireland set out in the draft withdrawal agreement notwithstanding political and constitutional challenges to which that could lead.

Finally, there is the agenda for discussions on the future partnership between the UK and EU after Brexit which would include services and some encouraging remarks about the city of London from Monsieur Barnier at the Eurofi High Level Seminar in Sofia on 26 April 2018.


Happy World Intellectual Property Day

Jane Lambert

Today is World Intellectual Property Day. It commemorates the day on which the day in 1970 on which the Convention Establishing the World Intellectual Property Organization ("WIPO") came into force. Since the day has been marked by events around the world to promote awareness of intellectual property.

Most of those events follow a common theme.  This year's theme is Powering change: Women in innovation and creativityThe WIPO website explains:

"Every day women come up with game-changing inventions and life-enhancing creations that transform lives and advance human understanding from astrophysics to nanotechnology and from medicine to artificial intelligence and robotics.

And in the creative sphere, whether in the movies, animation, music, fashion, design, sculpture, dance, literature, art and more, women are re-imagining culture, testing the limits of artistry and creative expression, drawing us into new worlds of experience and understanding.

The imp…

FRAND - Conversant Wireless Licensing v Huawei and Another

Jane Lambert

Patents Court (Mr Justice Henry Carr) Conversant Wireless Licensing SARL v Huawei Technologies Co. Ltd and others [2018] EWHC 808 (Pat)

Although the precise relief sought in these proceedings is not mentioned in this judgment, it must have been a strike out or stay of a claim for patent infringement.  The applicants were the Chinese companies, Huawei Technologies Co. Ltd. ("Huawei") and the ZTE Corporation ("ZTE") and their respective British subsidiaries which are defendants to a claim by Conversant Wireless Licensing S.A.R.L ("Conversant") for patent infringement.

The patents alleged to have been infringed are part of a worldwide portfolio that Conversant has offered to license on FRAND (fair, reasonable and non-discriminatory) terms. I discussed such licences in FRANDon8 Oct 2017 and FRAND - a Postcripton 16 Jan 2018. Huawei and ZTE have not yet taken up Conversant's offer.  They  dispute the validity of Conversant's patents. They d…

Data Protection: The "Right to be Forgotten" Updated

Jane Lambert

The phrase, "the right to be forgotten", was coined by the Audiencia Nacional (the Spanish high court) in its questions to the Court of Justice of the European Union ("CJEU") pursuant to art 267 of the Treaty on the Functioning of the European Union in Case C‑131/12 Mario Costeja Gonzalez v Google Spain SL and another [2014] 2 All ER (Comm) 301, [2014] All ER (EC) 717, [2014] 1 QB 1022, [2014] 3 CMLR 50, [2014] ECDR 16, 36 BHRC 589, ECLI:EU:C:2014:317, [2014] EMLR 27, EU:C:2014:317, [2014] 3 WLR 659, [2014] EUECJ C-131/12, [2014] QB 1022.

In that case the Audiencia Nacional asked the CJEU

"whether Article 2(b) of Directive 95/46 is to be interpreted as meaning that the activity of a search engine as a provider of content which consists in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of p…

The Business and Property Courts Practice Direction - IP Litigation outside London

Jane Lambert

According to TaylorWessing's Patent Map, England and Wales remains the most expensive country in Europe in which to contest a patent action. The European Patent Office reports that the UK lay 9th in the number of European patent applications that were filed in 2017 trailing not just the USA, Japan, China and Germany which are considerably bigger in population and GDP than the UK but France, South Korea, Switzerland and the Netherlands that are the same size or smaller (see European patent filings per country of origin). It seems likely that the UK's relatively lacklustre performance in the number of European patent applications is connected to the high cost of enforcement.  I have plenty of anecdotal evidence from my practice, patent clinics and inventors' clubs to support that contention.

One of the reasons why patent litigation in England and Wales is more expensive than in other countries including other common law jurisdictions such as the Republic of Irel…

Space Industry - Licensing Spaceports

Jane Lambert

In Commercial Exploitation of Space: Space Industry Act 201810 April 2018 I mentioned the government's aim to expand the British share of the global space market from the present 6.5% to 10% by 2030. Much of that growth will come from the development of small satellite delivery vehicles and suborbital transports which will take off and land on conventional runways.

The development of facilities for such spacecraft is likely to stimulate local economic activity considerably.  I mentioned the cluster of aerospace businesses that is already gathering at Cornwall Airport Newquay in NIPC Cornwallthis morning.  Newquay is one of a number of airports around the coast of Great Britain planning to handle space traffic.

Such facilities fall into the definition of "spaceports" provded by s.3 (2) of the Space Industry Act 2018.  S.3 (1) (b) prohibits anyone from operating a spaceport in the UK without a licence under that section.  A licence authorizing a person to oper…

Commercial Exploitation of Space: Space Industry Act 2018

Jane Lambert

For many years space was a government activity largely because most of the early uses of the technology were military and the vehicles that launched transported people and objects into space were developed from missiles. Gradually, civilian uses were found for the technology such as satellite broadcasting, remote sensing and telecommunications.  The value of the global space market is between £155 and £190 billion and likely to rise to £400 billion by 2030 according to the Space Sector Report 1 which was prepared for the House of Commons Committee on Exiting the European Union. The Industrial Strategy white paperstates thatthe United Kingdom has about 6.5% of that market and that the government hopes to increase that share to 10% by 2030.

In order to achieve that goal the British government has to update the legal framework that regulates the industry.  The legislation that currently applies is the Outer Space Act 1986 which prohibits:
(a) launching or procuring the launc…