Cambridge IP Law Summer School
|Entrance to Trinity College, Cambridge|
© 2017 Gita Mistry: all rights reserved
Licensed with kind permission of the author
I spent last week at the Cambridge IP Law Summer School at Downing College. It was a rare opportunity to listen to some of the leading practitioners in intellectual property law in beautiful surroundings in the company of some very bright young men and women from around the world. It was also an opportunity to catch up with several old acquaintances whom I had met through the International Bar Association, Licensing Executives Society or World Intellectual Property Organization.
The persons who attended the course came from a variety of backgrounds. Some were recently qualified associates from several leading law firms. A few were trainees. One came from a major pharmaceutical company. Another worked in-house. There were several civil servants. One attendee came from Japan, another from Denmark and yet another from an international organization. There was also a barrister.
The talks took place in a medium-size lecture room on the top floor of a two-storey building known as the Howard Building. That Building opened onto a courtyard that was partially enclosed by the Servery where we took breakfast and some other meals and was just across a gravel path from the Kenny Buildings where we were accommodated. Like many of the buildings in Downing, the Howard Building was constructed in the classical style with large windows so we enjoyed plenty of light and good ventilation.
Talks began at 09:00 and continued until 17:25 on the first four days and 16:00 on the last with an hour off for lunch and 20-minute breaks for morning coffee and afternoon tea. A quiz night was arranged for Monday, a formal dinner for Tuesday. a city tour on Wednesday and punting and a barbecue on Thursday. I attended all the events except the quiz night as it clashed with an adult ballet class that took place between 19:30 and 20:30 which I described in Ballet, Bodywork and Bits in Cambridge 15 Aug 2017 Terpsichore. I also had to leave the formal dinner early in order to meet a friend's flight at Heathrow airport.
Darren Meale of Simmons and Simmons started the first day by doling out chocolate bars to those who could identify those products from fragments of branding as they flashed onto a screen. He then gave each table a product and supermarket lookalike and asked us how each branded product could be protected by different intellectual property rights and whether the lookalike infringed those rights. My table, which consisted of three young associates, an in-house lawyer and me, was given some breakfast cereals. I think we identified the available legal protection correctly but could not see how the lookalike infringed. We then learned about TRIPS and some of the IP treaties from Giles Pratt of Freshfields Bruckhaus Derringer. Jonathan Cornthwaite of Wedlake Bell introduced us to copyright law and Paul Harris of Venner Shipley introduced us to patents. Nigel Parker of Allen & Overy discussed due diligence and Michael Gardener of Wedlake Bell parallel imports.
It was all good stuff but perhaps the most useful lesson for budding IP lawyers was Jonathan's introduction to le bon usage. As he said, copyright and other IP rights are infringed and, except for confidences, never breached. He might have added that trade marks are two words in this country and patents are pronounced with a good North Country "a" as in "grass". Never "pay tents" except when talking about the material used in the construction of shoes and handbags.
More good stuff the next day from Markus Gampp who is head of Patents at DLA Piper's branch in Germany. He gave us an excellent introduction to the Unified Patents Court and the unitary patent. Unfortunately, he was unable to answer the question on everyone's lips, namely "What the devil is going on in the German Constitutional Court at Karlsruhe to the legislation ratifying the UPC Agreement which has been passed by both houses of the German Parliament and now awaits only the largely ceremonial President's assent?"
The next session was a panel discussion between Rowan Freeland of Simmons & Simmons, Eugene Goryunov of Kirkland & Ellis and Claudia Milbradt of Clifford Chance on claim construction. The object of the exercise was to show the differences between our purposive construction and the German and American doctrines of equivalents. Using as props cans of Guinness and Boddies, they analysed the wording of the first claim of Guinness's patent EP 0227213 B1 for "a beverage package and a method of packaging a beverage containing gas in solution" to see whether it had been infringed by Whitbread's PCT application for a carbonated beverage container or indeed whether the patent was valid in view of the prior art.
There then followed what was for me one of the best presentations of the whole week on claim drafting and oppositions under art 99 of the European Patent Convention by Kristina Cornish of Kilburn & Strode. It was great for me because I was au fait with the law. I learned a lot but I think that it may have been heavy going for many of the younger attendees. The day before we were asked how many of us had actually read a patent specification and only a handful could raise their hands. Some of the attendees would have heard of oppositions in trade mark proceedings but nobody had mentioned in any of the earlier presentations that an opposition under art 99 was a revocation application in the European Patent Office.
Rowan, Eugene and Claudia came back after lunch to discuss anticipation, obviousness and insufficiency in their respective countries making further use of the beer cans as props. Then we split into two groups - one to talk about computer implemented inventions with Pete Sadler of Reddie & Grose and Alexander Carter-Silk of BrownRudnick and the other about Pharma and Biotech Patenting with Sally Shorthose and Elenor Root of Bird & Bird. I opted for computers partly because I have experience of this kind of work and partly because Alexander and I already followed each other on Linkedin and we had been on opposite sides of some litigation a year or so earlier.
Yet more good stuff on copyrights from Ben Allgrove of Baker & Mackenzie, Toby Headdon of Bristows and Tom Scourfield of CMS. They covered the WIPO Copyright and Performance and Phonograms Treaties, their implementation through EU legislation and the progress we have already made towards the digital single market. As I had been in the Newzbin cases and subsequent litigation I was able to give some insight into s,97A blocking orders. David Wilkinson of Clyde & Co. gave an efficient introduction and overview of the Database Directive and The Copyright and Rights in Database Regulations 1997, how they can be used in employment law and how they complement the law of confidence and the Data Protection Act 1998.
After lunch, Clive Thorne of Baler Botts heroically telescoped the enormous topic of registered and unregistered Community designs, registered designs, unregistered design right and copyright in so far as it still affects industrial designs. Ben Mark of RPC delivered two excellent presentations on trade mark infringement and passing off. He also mentioned domain name disputes which are a great interest of mine as I sit on the WIPO panel and to which I was able to contribute a few observations.
Thursday was my big day. The title of my talk was Bilateral Investment Treaties and Exporters' Rights Post Brexit. I had discussed bilateral investment treaties in the context of IP in Can a business recover compensation if a state fails to protect its intellectual assets? The decision in Eli Lilly & Co. v Canada suggests "maybe" 25 July 2017 NIPC Law and I placed it into a Brexit context by reminding my audience of the right to claim damages from a state that fails to implement its EU obligations decided in C-6/90 Francovich and another v Italy  ECR I-05357 which will be lost if and when we leave the EU. The talk seemed to go down well but no doubt I shall find out after the feedback is analysed.
Just before I came on, there were interesting talks by Claire Jenkins of Stobbs IP on trade mark filing and enforcement strategies after Brexit and Alec Cameron of Telefonica on patent filing and enforcement strategies after Brexit. Alec seemed to think it might be possible for the UK to remain in the UPC after Brexit, a view that I wish I could share but sadly cannot.
After my talk, there was an extremely useful presentation by Andrea Jaeger-Lenz of Harte-Bavendamm in which she considered how the upmarket women's retailer Jaeger (which has recently gone into administration (see Jaeger collapses into administration putting 680 jobs at risk 10 April 2017 The Guardian)) could recover a .de domain name registered by a cybersquatter. I suggested domain name dispute resolution proceedings but was told that there was no such procedure in the .de country code top-level domain name registry. There would have to be litigation in the German courts which are generally sympathetic to claimants. They are inclined to grant ex parte injunctions without evidence of an intention on the part of the defendant to hide evidence or assets and they do not require a cross-undertaking as to damages. The only way to oppose such an injunction is to file a protective writ which used to require filing in every court district in Germany. Andrea told us that there is now a central filing facility that is supposed to be consulted by all district courts.
The distinguished arbitrator David Perkins, who sits with me on the WIPO panel of neutrals. presented a very thorough introduction to and overview of, arbitration and mediation of intellectual property disputes. After lunch, we tried our hand at a mock arbitration of a trade mark opposition in the afternoon. A gin distillery opposed the application of a craft brewer from the fictional US town Boody to register a depiction of the Empress Elizabeth of Austria combined with the words BOODY HELL for a lager in the UK and EU by relying on its own figurative mark of Nell Gwynn above the words MOODY NELL
Some of the best presentations came on the last day. Fiona Nicholson of Bristows gave an excellent introduction to licensing which was followed in the afternoon by her partner Sophie Lawrance on arts 101 and 102 of the Treaty on the Functioning of the European Union and the various block exemptions that are available. There were then two excellent presentations on FRAND licensing by William Warne of Bird & Bird and Wolrad Prince of Waldeck and Pyrmont of Freshfields.
Victoria Jones of 3 Paper Buildings spoke about IP and insolvency.
The conference was organized by KNect which is part of the Informa group of companies. It describes itself as "a leading business intelligence, academic publishing, knowledge and events business, operating within the Knowledge and Information Economy." Its publishing division publishes a number of influential online and offline publications.
The Summer School was by no means cheap. Delegates were charged £3,498 plus £699.60 VAT for a package that included all meals, all social events and 4 days lodging. Happily, I did not have to pay that sum as I was one of the speakers. Although perhaps I am not in the best position to say so as the Summer School cost me nothing, I thought it was worth every penny.