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Showing posts from August, 2016

What IPR have in common with WMD

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Jane Lambert

I apologize in advance to those who will be offended by this post. I acknowledge that a photo of a mushroom cloud is pretty tasteless but it is sometimes necessary to shock in order to drive home a point. And my point is that an intellectual property right ("IPR") is a title to bring a law suit which, like weapons of mass destruction ("WMD"), has potency only if and to the extent that it is ever likely to be used.

The reason why doubt can arise as to whether an IPR will ever be used is that civil litigation is outrageously expensive.  In Ungar v Sugg (1899) 9 RPC 117 Lord Esher MR said:
"A man had better have his patent infringed, or have anything happen to him in this world, short of losing all his family by influenza, than have a dispute about a patent. His patent is swallowed up, and he is ruined." Despite cost capping in what is now the Intellectual Property Enterprise Court (see Jane Lambert New Patents County Court Rules31 Oct 2010 NIPC…

An IP Primer for Business Angels and Private Equity Investors

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Jane Lambert

In IP's not just for Big Brands and High Tech Businesses27 Aug 2016 I wrote:
"In my career at the Bar I have known far more businesses that have failed from having too much IP than too little. Some of those failures had been caused by patents that cost many thousands of pounds to obtain but could never be worked. Others by disputes that were abandoned because the rights owner (who in many cases had a strong claim) simply ran out of money." In many instances, such patents and other IP rights were sought to attract, or to fulfil a condition for, investment. While it is understandable that an angel or private equity investor should desire the most extensive legal protection possible for his or her investment a patent for an invention that may never be worked or any IP right that the business cannot afford to enforce would tend to make his or her investment less rather than more secure because the prosecution, maintenance and enforcement costs would affect the v…

IP's not just for Big Brands and High Tech Businesses

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Jane Lambert

At the beginning of the last century there was a bitter dispute between the Hotel Sacher and Demel over the right to sell the original Sacher cake (see the "Legal Issues" section of the article in Wikipedia). I have been instructed in similar disputes in England (see Fat Betty, Bettys & Taylor Group Ltd. v Cheese & Co.BLO/163/09 16 June 2009) and briefed and consulted by just about every type of business from architects to undertakers.

Every type of business owns at least some intellectual assets. It would not be able to function without them. And each and every one of those concerns relies on intellectual property law to remain in business. Starting at its most basic it will have its name and reputation. That may simply be the name of the owner or it may be a fancy name like The Golden Hind. Its products and services may have names and reputations too. Then there are the designs, formulae or recipes that give those products or services their distinctive…