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| Granary Wharf, Leeds Author Mark Stevenson Licence CC BY-SA 2.0 Source Wikimedia Commons |
As I said in Yorkshire IP Practitioners' TIPSY Night Out on 15 March 2024, TIPSY stands for The Intellectual Property Society of Yorkshire. Every so often, it holds a dinner at the Double Tree Hilton in Leeds to which a retired or serving judge or barrister is invited to give a talk. I try to support those dinners because the organizer, Andrew Clay, is a fellow St Andrean (see Clay in St Andrews, 15 April 2025, NIPC News).
Those dinners are not cheap. On Thursday, 26 Feb 2026, for example, attendees were charged £75 each for an indifferent 3-course dinner with wine for those of us who weren't driving and tap water for those of us who were. To that amount I had to add the cost of driving from home to Wakefield, parking at Wakefield Westgate station and the return rail journey from Wakefield to Leeds. Peanuts, perhaps, for the law firms and patent and trade mark agencies who sent their assistants and trainees en masse, but a fair wack for a sole practitioner, which probably explains why I am the only barrister to attend these functions.
The speaker on 26 Feb 2026 was Sir Robin Jacob, the Sir Hugh Laddie Professor of Intellectual Property Law, Director of the Institute of Brand and Innovation Law and former Lord Justice of Appeal. He is one of the most distinguished legal scholars of our day. I appeared before him several times when he sat in the High Court. While arguing a case in his court was not the easiest experience of my life, I learned a lot from it.
However, I had spent a day in his presence last November when he moderated the second day of CTC Legal's Second London IP Conference which included a session in which I spoke. Having seen him recently, I had not intended to come to his dinner before 11 Feb 2026. The event that changed my mind was the Supreme Court's judgment in Emotional Perception AI Ltd. v Comptroller General of Patents, Designs and Trade Marks [2026] UKSC 3. That decision reversed nearly 20 years of case law based on the Court of Appeal's judgment in Aerotel Ltd. v Telco Holdings Ltd and others Rev 1 and Macrossan v The Comptroller General of Patents, Designs and Trade Marks [2007] BusLR 634, [2007] Bus LR 634, [2006] Info TLR 215, [2007] 1 All ER 225, [2007] RPC 7, [2006] EWCA Civ 1371 which Sir Robin had delivered. Having written Emotional Perception AI Ltd v Comptroller in the Supreme Court 12 Feb 2026 NIPC Law and How will the Emotional Perception Case affect Inventors in the UK? 18 Feb 2026, NIPC Inventors' Club, I was looking forward to hearing what Sir Robin would have to say about the topic.
Unlike other speakers who spend the night in Leeds before returning to London, Sir Robin went home that same evening. That left relatively little time for his talk or questions. He started by listing the different intellectual property rights that can subsist in a product design and considering whether more than one right can subsist in a design concurrently. He discussed the evolution of design law from King Features Syndicate Inc. v Kleeman (O. & M.) Ltd, [1941] A.C. 417 | [1941] 2 All E.R. 403 | [1941] 5 WLUK 46 to British Leyland Motor Corp and others v Armstrong Patents Company Ltd and others 1986] AC 577, [1986] UKHL 7, [1986] FSR 221, [1986] 2 WLR 400, [1986] ECC 534, (1986) 5 Tr LR 97, [1986] 1 All ER 850, [1986] RPC 279.
When he finished his speech, he offered to take questions on design or any other topic. Someone on our table asked Sir Robin whether he thought that Emotional Perception was correctly decided. There was only one answer that Sir Robin could give to that question, which was "yes". Had I been invited to ask a question, I would have asked whether there would be a new methodology for examining software-implemented inventions to replace the Aerotel approach with regard to excluded matter and the Windsurfing/Pozzoli approach on obviousness.
I also had a question on design. When Parliament abolished the protection of functional designs by treating design documents as original artistic works through passing the Copyright, Designs and Patents Act 1988, the legislatures of other Commonwealth common law jurisdictions did the same. However, while none of them established unregistered design right on the lines of Part III of the 1988 Act as a means of protecting functional designs, many of them introduced innovation or short-term patents or utility models instead. That option had been considered but rejected by the Whitford Committee and had been discussed in both green and white papers. My question would have been whether we had been right to introduce a new type of intellectual property based on a prohibition of copying, and if not, whether there was a case for introducing utility models now.
About three other attendees managed to catch Andrew's eye. One asked Sir Robin about patents for inventions made by computers. Sir Robin suggested a solution along the lines of s.9 (3) of the Copyright, Designs and Patents Act 1988. Having spent the better part of £100 on bruschetta that was difficult to chew, a chunk of chicken, a cube of mash, two straggly beans and a fruit crumble washed down by tap water and a mug of coffee, I was disappointed not to have been allowed to ask a question. However, I accept that time was short and that Andrew did his best to fit in as many questions as possible. The chap who did ask a question about Emotional Perception was very well informed about the case, and he shared some very interesting ideas and information about it with me, which was the very next best thing to putting a question to Sir Robin.
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