TIPSY

Granary Wharf

Author Mtaylor848

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Jane Lambert

TIPSY stands for The Intellectual Property Society of Yorkshire.  It is an initiative of my fellow St Andrean, Andrew Clay, who has recently set up the specialist intellectual property law firm, Andrew Clay Legal, in Harrogate.  Before setting up that firm Mr Clay practised from the Leeds office of Squire Patton Boggs.

To launch TIPSY, Mr Clay organized a dinner at the DoubleTree by Hilton at Granary Wharf in Leeds on 15 Nov 2018 for some 80 intellectual property specialists at law firms, patent and trade mark agencies and other institutions throughout Yorkshire. I was invited as a member of the Intellectual Property Bar. So far as I could see, I was the only practising barrister there.

The guest of honour was His Honour Judge Hacon who has been the presiding judge of the Intellectual Property Enterprise Court ("IPEC") since 3 Dec 2013.  He was invited to speak to us after dinner.  When he was introduced to us we learned that Judge Hacon had been educated in Leeds which I had not known.

Judge Hacon succeeded Sir Colin Birss as the presiding judge of IPEC shortly after it had been formed.  As I explained in What does the Intellectual Property Enterprise Court mean for Litigants in the North West? 12 Oct 2013 IP Northwest. IPEC was formed to replace the Patents County Court which was abolished by paragraph 30 (3) of Schedule 9 of the Crime and Courts Act 2013. Unlike the Patents County Court IPEC is a specialist list within the Chancery Division.

The judge explained that he was assisted by Judge Melissa Clarke who usually sits at Oxford and by a number of recorders. There were also several district judges who sit in the Small Claims Track (see Small IP Claims last updated 13 Jan 2018). He described the work of IPEC and how it had evolved in the last 5 years.  When he took up his appointment he had to impose time limits on cross-examinations and submissions frequently.  He found that he had to do that much less frequently nowadays. The court was taking on more complex cases.  In answer to a question from the floor, he could see no reason why it should not entertain an Unwired Planet type of case.  Surprisingly, he said that the two-day limit on trials could be extended in suitable cases so long as the case management disciplines were observed.  In answer to a question from me, he agreed that his caseload had dropped in recent years but explained that was because other courts were managing their cases in the same way as IPEC and that there had been an increasing rate of settlement adding that was no bad thing.

The judge reminded his audience that his court (including the Small Claims Track) had a nationwide jurisdiction. He added that district judges were likely to be appointed who could hear small IP claims outside London.

After the judge's speech, I exchanged a few words with Mr Clay.  I congratulated him on his initiative and asked him about his plans for the future.  He replied that our next guest will be Geoffrey Hobbs QC and that he is expected to visit us early in the New Year.

Can you keep a Secret? Non-Disclosure Agreements, Trade Secrets, Use, Abuse and the New Law, Barnsley 22 Nov at 16:00

Author Willh26
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Jane Lambert

In Can you keep a Secret? Non-Disclosure Agreements, Trade Secrets, Use, Abuse and the New Law I mentioned my talk at the Business Village in Barnsley on 22 Nov 2018 at 16:00.

At whom is this talk aimed?

Primarily people with bright ideas that are  not yet ready to be launched such as inventors, designers, entrepreneurs and other creatives but it should also be useful to angel and private equity investors, lenders and their professional advisers.

What will it cover?

Everything.  What is meant by "confidential information", "obligations of confidence", "non-disclosure agreements ("NDA") and "trade secrets".   How the law of confidence operates.   How the new Trade Secrets Directive alters the law.  Uses of NDA   What can be protected and what can't.  Drafting a confidentiality agreement in the light of the new law.  How a confidentiality agreement can be enforced.  Interim injunctions. How to resist and discharge them.  Likely risks and costs.

What about handouts?
Everybody who attends the course will receive by email a full set of slides and other teaching and reference materials.

How much will the course cost?
Nothing but you must register here in advance.

What are the speaker's credentials? 

You will find my profile here.

How do I get to The Business Village?

The full postal address is:

The Business Village @BarnsleyBIC
Innovation Way
Barnsley
S75 1JL

It is a very short drive from the junction with the M1 at Dodworth. It is also close to the town centre.  There is usually plenty of free parking on the site.   

If you come by public transport it is served by several bus routes to the Interchange station.

Are you planning to give this talk elsewhere?
Yes.  All over the UK.  The  next stop will be London.

Where can I get more information?
Call me on 020 7404 5252 during office hours or send me a message through my contact page.

Morrisons' Appeal FAQ

Morrison's head office in Bradford

Author Michael Ely
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Jane Lambert

The retailer, Wm Morrison Supermarkets Plc ("Morrisons"), is one of Yorkshire's biggest companies and the fourth largest supermarket chain in the UK.   On Monday, 22 Oct 2018 it lost its appeal against the judgment of Mr Justice Langstaff that it was answerable for the misdeeds of one of its members of staff who had posted personal details about all its employees on to a file sharing site on the internet.   The staff member, who was convicted of offences under the Computer Misuse Act 1990 and the Data Protection Act 1998, acted out of spite because he had a grudge against his employer.  I blogged about the Mr Justice Langstaff's judgment in Morrisons - Primary and Vicarious Liability for Breaches of Data Protection Act 1998 in my data protection blog on 11 Dec 2017 and on the appeal in The Morrisons Appeal - Vicarious Liability for Enployees' Breaches of Confidence and Statutory Duty yesterday.

Why is the Appeal in the News?
Except in so far as it might be argued that Morrisons should have been more careful when recruiting, monitoring and supervising staff, the supermarket chain was an innocent party.  It now faces a potentially massive claim for compensation from its employees as a result of that data security breach which is exactly what the perpetrator had intended.

The thought that the court was helping him achieve that object troubled Mr Justice Langstaff which is why he gave Morrisons permission to appeal his judgment. 

On the other hand, Morrisons' employees whose personal details were exposed have rights under the Data Protection Act 1998 and at common law.  They could sue the person who breached their rights but he is serving a custodial sentence for his crimes. If they are to get any compensation they will have to claim it from their employer.

So why should Morrisons be liable?
Both Mr Justice Langstaff and the Court of Appeal held that Morrisons were liable for the misdeeds of its employee under a doctrine known as "vicarious liability". That has nothing to do with vicars.  "Vicarious" in this sense simply means "in place of".  It is a rule of law developed by the judges in a succession of cases that enables claimants who can't get damages from the person who harmed them to sue the wrongdoer's employer.

How does Vicarious Liability work?
The first thing to say is that employers are not liable for every misdeed that their employees may do.  If a member of staff robs a bank on his day off the bank cannot sue the bank robber's employer because that would be absurd.  But if the employee hurts someone while doing his job - say a delivery driver runs down a pedestrian while driving his van - then most people would say that the van owner (or rather its insurer) should pay.

In a previous case against Morrisons involving one of their petrol station attendants one of the Supreme Court justices set a simple two stage test:

• The first step is to ask "what functions or 'field of activities' have been entrusted by the employer to the employee, or, in everyday language, what was the nature of his job?" and
• The second is to consider whether there is a sufficient connection between the position in which the wrongdoer was employed and his wrongful conduct to make it right for the employer to be held liable for his wrongdoing.

The Court of Appeal and trial judge applied that test in this case.  The wrongdoer had been given the personal files together with instructions as to what to do with them in the course of his work as an internal auditor.  That was enough to make Morrisons vicariously liable.

That still seems a but hard on Morrisons

Maybe but the alternative was to leave the employees without a remedy.  The Supreme Court judge who set out the test said that the risk of an employee misusing his position is one of life's unavoidable facts.  The Court of Appeal said that the solution was to insure against that risk.  When you think of it, the position is no different from the position of a van owner who insures against accidents caused by his employees when carrying out their everyday tasks.

I believe that Data Protection Law changed on 25 May

That is correct.  The General Data Protection Regulation ("the GDPR") and the Data Protection Act 2018 came into force on that day.  The new Act repealed the Data Protection Act 1998.  However, the new legislation provides for claims against  data controllers. I blogged about the topic in Claims by Data Subjects against Data Controllers and Processors under the GDPR on 5 Jan 2018.  A claim on similar facts would probably be decided the same way under the new law.

Is this the Last Word on the Topic?

Not necessarily.   Radio reports said that Morrisons hopes to appeal to the Supreme Court.  Even if there is no appeal or the appeal fails it is possible that other courts will seek to distinguish or explain the decision in future cases.

Where can I find Further Information?

You can find lots of information on data protection law including the GDPR and the new Act in my data protection blog.   If you want to discuss this case or data protection generally call me on 020 7404 5252 during office hours or send me a message through my contact form.

Pennine Cloud's "Smart Holmfirth" Initiative

Author Michael Ely
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Jane Lambert

The government's industrial strategy is built on 5 foundations  one of which is "place".  In conjunction with the national strategy local areas are encouraged to develop their own local industrial strategies to "identify local strengths and challenges, future opportunities and the action needed to boost productivity, earning power and competitiveness."

In a press release published on the 17 Jan 2018 the Leeds City Region local economic partnership announced discussions with the West Yorkshire Combined Authority on a "New inclusive Industrial Strategy to put region at forefront of UK productivity and prosperity." The Leeds City Region covers a vast and diverse area from the Yorkshire Dales to Leeds and Bradford.  Each and every one of the districts of that City region has its own strengths and opportunities for which district strategies will be required.

One of the metropolitan districts of the Leeds City Region is Kirklees which includes small towns and villages in the rural Pennines as well as former mill towns.  It goes without saying that the needs of the rural communities are very different from urban ones.  Realizing that it is up to local communities to help themselves, Will Roebuck, a non-executive member of the Leeds City Region LEP with 25 years experience of information technology, telecommunications and media, has set up a company called the Pennine Cloud which describes itself as "the challenger and accelerator hub for business and community leaders and top managers working across the UK's Pennine region."

On Wednesday, 12 Sep 2018, the Pennine Cloud convened a meeting of representatives of local businesses and other organizations in Holmfirth Methodist Church on 12 Sept 2018 to discuss:

"How do we unlock the opportunities and benefits of the Leeds City Region's digital economy? Especially in rural areas, such as in the South Pennines and Holmfirth?"

The title of the meeting was "Smart Holmfirth' - Enabling Rural Digital Across The Leeds City Region" 

The agenda was as follows:

• 10:00 Understanding the new economic landscape (Will Roebuck)​
• 10:15 Leeds City Region Digital Framework (Sarah Bowes, Steve Moore)​
• 10:45 Brain storms (all)​
• 11:30 Refreshment stop ​
• 11.40 Calming the storms – key observations (all)
• 12.20 Making rain - action stations (Will Roebuck/Valda Smits)​
• 12.30 Filling station - working business lunch.

I did not count them, but I estimate that there were over 30 individuals in the room seated around 5 or 6 tables each of which had a label.  Mine was "Infrastructure" and our table included representatives from Kirklees MDC, a local dairy products company, a retired gentleman who ran a coding club, a lady who ran a local community service organization and me. The labels of the other tables were "Tech", "Skills", "Traditional Business" and so on.

Will gave a full presentation and Sarah a shorter one.  Steve started to speak about funding and the various schemes that were available through the local authority and the LEP. He was immediately challenged by a member of the audience who complained that none of them was available to him or his business. Happily, he said he had obtained funding elsewhere.  A lively exchange followed which was ended when Will asked each of the tables to consider individually the questions that had been out to us.

After a lot of discussion each table nominated a foreman who read out its conclusions all of which seemed very pertinent to me.  We did not really get round to the "Calming storms" or "Making rain" discussions as such but I am not sure that matters.   I understand that Pennine Cloud will refer to our brainstorming in planning an industrial strategy for our area.   This will necessarily be a private sector initiative led by Will and Valda but there is nothing inherently wrong with that.

The only discussion of intellectual property was on the legal protection of big data.  However, I can foresee plenty of inventions and other intellectual assets resulting from this initiative with which I should be glad to assist.   Anyone wishing to discuss this article should call me on 020 7404 5252 or send me a message through my contact form.

IP Yorkshire Clinics

Barnsley Town Centre

Author Peter Beard

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Jane Lambert

On the second Tuesday of every month I hold an IP clinic at The Business Village in Barnsley.  Last Tuesday, I was consulted by two entrepreneurs who were setting up new businesses.  Their identity, businesses and ideas are, of course, confidential but I can mention some of the topics that we discussed without breaching anybody's confidence.

Non-Disclosure Agreements
The law on trade secrets changed on 9 June  when Directive (EU) 2016/943 ("the Trade Secrets Directive") came into force.  The government believes that our existing law already largely complies with the Trade Secrets Directive but it has had to issue The Trade Secrets (Enforcement, etc.) Regulations 2018 to implement the legislation.  I think The Trade Secrets Directive needs to be considered when drafting non-disclosure and other agreements (see Jane Lambert Checking your Confidentiality Clauses and Agreements for Compliance with the Trade Secrets Directive 27 June 2018 NIPC News).  Other articles readers may find useful include The Trade Secrets Directive 7 July 2016 NIPC Law, Transposing the Trade Secrets Directive into English Law: The Trade Secrets (Enforcement etc) Regulations 6 June 2018 NIPC Law and Transposing the Trade Secrets Directive into English Law: Confidentiality Agreements 5 Feb 2018 NIPC Law.

Enforcement
Another issue that arose directly out of the previous one is enforcement. It is one thing to get a signature on a non-disclosure agreement but it is quite another to hold the signatory to the agreement.  There are three things to be said. 

First, the Trade Secrets Directive makes it easier to sue.  At common law

"three elements are normally required if, apart from contract, a case of breach of confidence is to succeed.  First, the information itself, in the words of Lord Greene, M.R. in the Saltman case on page 215, must 'have the necessary quality of confidence about it' . Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it." (per Mr Justice Megarry in Coco v A.N. Clark (Engineers) Limited [1968] F.S.R. 415; [1969] R.P.C. 41.

Under the Trade Secrets Directive a claimant need prove only that the information meets all of the requirements of art 2 (1):

"(a)  it is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
(b) it has commercial value because it is secret;
(c) it has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret"

and that it was acquired unlawfully within the meaning of art 4 (2). that it was used or disclosed in breach of art 4 (3) or that it was acquired, used or disclosed in breach of art 4 (4) or (5). A breach of confidence at common law could also be an infringement of the Trade Secrets Directive but it is not necessary under the directive to prove that the information had the necessary quality of confidence about it or that it was imparted in circumstances importing an obligation of confidence and the mere acquisition of the information is actionable.

Secondly, businesses should always consider taking out intellectual property insurance whenever they create an intellectual property right  I have written a lot about IP insurance over the years and my latest article is IP Insurance: CIPA's paper  1 May 2016 NIPC Inventors Club.

The third point is that there is now an inexpensive forum for resolving intellectual property claims worth £10,000 or less. The procedure is much simpler and cheaper than in other courts and the costs that may be recovered from the losing party are limited to just a few hundred pounds.  Claimants cannot get interim injunctions in the small claims track but their actions usually come on for trial more quickly.   A claim for breach of confidence can be brought in this jurisdiction (see Jane Lambert Enforcing a Confidentiality Agreement in the Small Claims Track 9 March 2013).

Collaboration Agreements
Another connected topic concerns joint ventures. Who is entitled to apply for a patent, register a design or assert a copyright when two or more businesses work together.  There has been a lot of discussion on this topic lately and the Intellectual Property Office has held consultations on the topic in London, Birmingham and Manchester. I attended the one in Manchester and blogged about it in IPO Consultation - Business to Business Collaboration Agreements 23 July 2018 IP Northwest.  The IPO plans to set up a working party to consider model agreements on the lines of the Lambert Toolkit but it will be some time before those agreements are published if, indeed, they ever are.  For that reason, I gave a number of tips in Business to Business Collaboration Agreements 4 Aug 2018 NIPC Law.

Design
In almost every clinic there is a client who wants  to know about design protection in this country and overseas.   I usually mention unregistered design right, registered designs  unregistered Community designs, registered Community designs and copyrights.  One big change in design law has been the UK's accession to the Hague Agreement Concerning the International Registration of Industrial Designs on 13 March 2018 (see The Hague Notification No. 133 Hague Agreement Concerning the International Registration of Industrial Designs Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs Ratification by the United Kingdom of Great Britain and Northern Ireland on the WIPO website). British accession enables designers to apply for protection in all the countries of the Hague Agreement with a single application. Contracting parties include Canada, France, Germany, Russia, South Korea, the USA and the EU.

Accessing the Clinic
If you need advice or assistance on intellectual property or technology law the first step is to complete the following form below.  You do not have to be in Yorkshire to use the clinic.   I will try to advise you by email or telephone.  If you need to consult another professional I will tell you how to find an instruct one.  If I have worked successfully with a patent or trade mark attorney, solicitor or other professional in the past I may mention his or her name.   If you need an appointment with me I can see you in Yorkshire or London.

If you want to discuss this article call me on 020 7404 5252 or send me a message through my contact form.

Fill out my online form.

NorthernMAX Demo Day

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Jane Lambert

I mentioned the launch of the NorthernMAX health accelerator programme in  Northern Max - a new Healthcare Accelerator in Bradford 12 Jan 2018. That programme ends on 29 March 2018.  I was lucky enough to attend a demo day on Thursday, 22 March 2018 at which several of the participants presented their businesses.

The event took place in the reception area of the Digital Exchange in Little Germany.  Each of the businesses on the programme was allocated space for a stand in the reception area or adjoining side rooms. Doors opened to visitors at 10:00 and the first hour was used for introductions, demonstrations and general discussions over coffee.

At about 11:00 Tom Strodtbeck invited visitors to take a seat and listen to short presentations from the participating companies.  All the ideas were interesting and they were very varied.  Some businesses such as V & V innovations had developed apparatus for diagnosis. Others like John Baruch's Mulberrybush had devised systems for facilitating social care. Most of the products were for healthcare or social care but one of them used data from sensors to gaie early warning of flooding.  I had expected the presenters to be very young men and women straight out of medical or graduate school.  I was pleased to find that they were of all ages and backgrounds.

The presentations ended at 12:30 when a light lunch was served.  I spoke to Tom Strodbeck and Amanda Lennon about the programme and met as many participants as possible. All seemed to be very satisfied with the programme as I had expected  them to be.

At 13:00 we were invited to resume our seats for two short talks from Paul Jones, chief technical officer of BUPA and Taz Aldawould chief executive of DocAbode who had secured funding for his project.

I attended the event to listen and learn rather than to promote my services but I was glad that several of the participants were aware of the need for legal protection for their innovation and creativity. One or two of them requested my business card asked me a lot of general questions on intellectual property.

Should anyone wish to discuss this article he or she should call me on 020 7404 5252 during usual office hours or message me through my contact form.

Northern Max - a new Healthcare Accelerator in Bradford

Bradford Royal Infirmary

Author David Spencer

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Jane Lambert

In Accelerators and Incubators in the Leeds City Region 22 April 2017 IP Yorkshire I wrote:

"Both accelerators and incubators help to launch fledgling businesses. Accelerators offer structured development and training with opportunities to attract funding for the most attractive businesses. Incubators are more like serviced offices with mentoring and other forms of business and technical support thrown in."

When I penned that article there were only four accelerators and all of them were in Leeds. I can now report the launch of a new one in Bradford for the healthcare industry called Northern Max. It came to my attention through a posting on the Yorkshire Business Desk: SMEs and start-ups embark on programme to bring innovative health solutions to market 12 Jan 2018

Northern Max describes itself as "a market-access focused 12-week accelerator programme that has been funded by City of Bradford Metropolitan District Council and AD:Venture."  AD:Venture supports start-ups and young business in their first 3 years of trading,within the Leeds City Region. Such support consists of "a tailored mix of practical advice, coaching, outcome focused events, academic support, incubation work space, finance brokerage, low rate loans and help".

The accelerator programme started on 8 Jan 2018 at the Digital Exchange in Little Germany. Businesses participating in the programme will have an opportunity to:

• validate their technology and business models;
• create and test minimum viable products; and
• be introduced to potential customers, funders and investors.

They should leave with a clear understanding of growth strategy, funding options and market opportunities. At least some should have secured some sort of funding and all will have tested their assumptions in live NHS and care settings, and pitched to potential customers and investors.  The programme will be provided by Innov8tive Minds and the Digital Health Enterprise Zone ("DHEZ").

Neither the The Business Desk article nor the announcements on the AD:Venture or the DHEZ websites state whether participating businesses will be made aware of the dangers of inadvertently infringing other businesses' patents, trade marks or other intellectual property rights or of competitors exploiting their intellectual assets through failing to protect then properly, If they have not been alerted to those dangers, they should be.

Happily, the Intellectual Property Office ("IPO") has recently updated its IP Basics guidance.  The best time to start thinking about these matters is when writing a business plan.  As the IPO notes:

" Your business builds goodwill and recognition through your brand, product or service. This value builds up over time and becomes integral linked to your business’s IP assets. If used well, IP can offer a solid platform for any business to grow. How you plan, manage and protect your ideas should be a crucial feature in your business planning. What seems unimportant today could be worth millions of pounds in the future, if protected."

Businesses on the Northern Max programme can find additional information on how to incorporate IP into their business plans in Jane Lambert Putting IP at the Heart of Your Business Plan 2 Jan 2015 NIPC News and Jane Lambert Why every business plan should take account of intellectual property 3 April 2016 NIPC News,

In Getting Help, the IPO advises that the British Library Business and IP Centre supports entrepreneurs, inventors and small businesses and will also give advice on creating a business plan. The British Library works with a number of public libraries around the country to provide similar advice locally at Business and IP Centres. The nearest Centre to Bradford is at Leeds Central Library.

Sometimes businesses need specialist professional advice and it is there that enormous care should be taken. Businesses requiring patents should consult a patent attorney and those needing trade marks a trade mark attorney. Law firms that are members of the Intellectual Property Lawyers Association can advise on licensing, joint ventures, funding and other business transactions, They can also assist parties to resolve infringement and other disputes.  Barristers who subscribe to the Intellectual Property Bar Association support patent and trade mark attorneys and solicitors by advising on difficult points of law, drafting complex legal instruments and presenting cases before judges and hearing officers much in the way that consultant physicians and surgeons support GPs in medicine (see Jane Lambert IP Services from Barristers 6 April 2013 NIPC News).

I wish Innov8tive Minds, DHEZ, participating businesses and everyone involved in the Northern Max project every success.  Should any of them wish to discuss this article or IP generally they should call me on 020 7404 5252 during office hours or send me a message through my contact page.

Agricultural Innovation in Yorkshire - Protecting New Plant and Seed Varieties

Farmland in East Yorkshire

Jonathan Fry

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Jane Lambert

I learned today from The Business Desk Yorkshire that Yorkshire has a small but growing science park specializing in agri-food innovation. The National Agri-Food Innovation Campus ("NFIC") occupies an 80-acre site at Sand Hutton near York. According to the occupants page of its website it has attracted 14 tenants including 4 government agencies and a firm of patent attorneys.

In this country, investment in developing new varieties of plants is protected by the Plant Varieties Act 1997 and Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (“the Community plant variety regulation”).  The UK is also party to the International Convention for the Protection of New Varieties of Plants which protects investment new plant varieties internationally. I have written a number of articles on this legislation all of which can be accessed from my Plant Breeders' Right page.

S.6 (1) of the 1997 Act provides:

"Plant breeders’ rights shall have effect to entitle the holder to prevent anyone doing any of the following acts as respects the propagating material of the protected variety without his authority, namely—
(a) production or reproduction (multiplication),
(b) conditioning for the purpose of propagation,
(c) offering for sale,
(d) selling or other marketing,
(e) exporting,
(f) importing,
(g) stocking for any of the purposes mentioned in paragraphs (a) to (f) above, and
(h) any other act prescribed for the purposes of this provision."

Actions to restrain infringement or to recover damages for past infringements of those rights must be brought in the Patents Court or the Intellectual Property Enterprise Court (see CPR 63.2 (1) (b) (iii). These rights can be assigned, licensed or charged just like any other intellectual property right.

Anyone wishing to discuss this article or plant breeders' rights in general should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.