Examination of witnesses
Mr Daniel Alexander QC, Ms Charlotte May QC and Mr Trevor Cook.
Q1 The Chairman: I welcome our witnesses today, who are all very distinguished lawyers. I would like to start this public session with what I have to say at each of these evidence sessions. As you know, the evidence is open to the public. A webcast of the session is made which goes out live and is subsequently accessible via the parliamentary website. You will receive a verbatim transcript of the evidence and that too goes on to the parliamentary website. It will be sent to you. Could you have a look at it for accuracy within a few days of this session and let us know if you feel that there is anything that does not reflect accurately what you have said? If there is anything that you would like to add by way of supplements, please take the opportunity to amplify any points that are made during your evidence. You can submit that in supplementary written evidence to us.
Welcome to all three of you. I shall go down the line, starting with Charlotte May, who is a distinguished QC? If you could tell us a bit about yourself and your practice, that would be very helpful.
Ms Charlotte May: I am an intellectual property practitioner. I do all types of intellectual property: patents, trademarks, copyright and designs. I am in a specialist IP chambers and I have been in practice since 1996.
Mr Daniel Alexander: I am also a specialist intellectual property barrister. I am currently chair of the Intellectual Property Bar Association, which is the association that represents barristers in the UK working in the field. I have a broad practice that covers a range of areas. I have some previous experience, as does Charlotte, of acting for the Government as one of the comptroller’s counsel, so I have been looking at some of the policy issues in this area as well.
Mr Trevor Cook: I am an English solicitor. I have practised in all fields of intellectual property since my admission as a solicitor back in 1977. In addition to my legal practice, I have written extensively on the subject of intellectual property, including several books. I am a partner in a law firm, but any views that I express today are my personal views. They are not necessarily those of my firm, its clients or any organisation with which I am associated.
Q2 The Chairman: I will ask a question to start off the session. Does Brexit pose any dangers to the protection of intellectual property rights in the United Kingdom? In the matters currently dealt with by EU law, are there any specific areas of concern for yourselves?
Mr Daniel Alexander: Broadly speaking, there are three areas that are worth looking at. The first is the issue of substantive intellectual property right protection. A number of intellectual property rights, including registered designs and registered trademarks, of which there are a very large number—1.7 million at the last count—are provided under EU law by EU regulation. Upon Brexit, unless otherwise provided for, those would go. That is a risk to all those rights in the United Kingdom, but it is being addressed by the Government through the proposed introduction of a parallel UK set of rights to replace those rights which would otherwise be effective throughout the EU.
The difficulty with the set of issues is that there is a remaining uncertainty as to the precise nature of the substitute rights, if I may use that term. Unfortunately, this is an area where the devil is in the detail. As you can imagine, if you are trying to take one country out of the EU for which there is a unitary system of rights, and you then say, “We are going to keep the existing rights as they are in the EU and we will have a parallel system that is supposed to mimic the existing rights”, there can be disputes as to what the criteria are for identity of reproduction of the rights in question.
The Government are addressing that issue. The UK IPO has done a lot of work on this area. From the professional perspective, we are impressed by the quality of work that the Civil Service is doing. It is right to acknowledge that it is really doing its best—in quite difficult circumstances because this is tricky stuff. Getting all the detail correct is hard work.
The second area is what might be called practical impacts. It relates to what might be called procedural rights related to intellectual property. I shall give the example of registered trademarks. At the moment, the idea of the system, which is a rather good system in principle, is that you can apply for a registered trademark that will be valid throughout the EU. Effectively, you can do one-stop court proceedings to obtain injunctive relief that is effective throughout the EU, if you are a trademark proprietor, and have your disputes resolved in one place. It is fair to say that the system, if not universally appreciated, is widely appreciated by industry and one that everyone wants to continue.
The corollary of that is that undertakings in this country have rights to pursue cases in the EUIPO at the moment and to use UK lawyers to do so. Upon Brexit, those rights are at risk. The EUIPO has said in its questions and answers that if you are a UK trademark attorney, for example, you do not have automatic rights to continue pursuing practices which in some cases have been continued for many years when representing clients in the EUIPO. That is inconvenient at the level of industry and causes real difficulties for the professional service organisations whose core business is likely to be undermined.
The third and final issue that is important and which the Committee should have an eye on, is what might be called the question of UK influence on IP. The IP system in Europe is working pretty well. No system is perfect or without its critics. Some people will say, “We prefer this court decision or that court decision”. That is an inevitable feature of any legal system. However, it is an efficient system and one that, completely independently of the EU, has been moving towards harmonisation partly as a result, for example, of judges talking to one another about the issues that they share. The UK has been absolutely at the heart of this. We have a judiciary in intellectual property in this country that is second to none. I nearly brought along some samples of its work just to show you what we are dealing with. If one thinks about technical patent cases, we have a senior patents judge who for some days will hear evidence from scientists of the highest calibre. Within a matter of a few weeks, effectively, a report 200 pages long will be produced—namely, a judgment—on the most detailed technical matters that is quite often referred to and relied on by judges throughout the world. That is the case in other areas of IP as well. It is partly the result of what might be called an IP ecosystem in this country that is enormously valuable and which as a result leads to quite a lot of people to do their European work through the UK.
That has another aspect as regards influence. The UK has been very beneficially influential in the development of intellectual property law through its involvement in the European Court of Justice. You will know from your other work that UK lawyers are generally regarded as quite engaged in those areas. In the legislative process, there has been an enormous amount of input which has resulted in a much better IP system for everyone.
That kind of influence is at risk. It is important for a number of reasons. First, one does not want that influence to go generally. The IP law in Europe will affect the UK and UK undertakings exporting to Europe and doing business generally. However, it will also have a repercussive effect because in one way or another EU law will remain influential in the UK. If I may put it like this, one wants to be stuck in there. One does not want to be withdrawn from a system that is likely to create influence. Those are the three areas to which the Committee might usefully devote some thinking.
The Chairman: I want to thank you for giving that description. This is the stuff that is invisible to the general public. A perception has developed over the years that somehow Britain has to receive passively all this law that comes as a great wash from Europe as though we have not been very active participants in its development. As you have just described, law is in fact something that Britain is exceptionally good at and our contribution has actually, if you like, raised the bar. Being part of the organic process of the development of law has been incredibly important, and not just in Europe. Because of our engagement with Europe, it has impacted on intellectual property law globally. Thank you for describing that so coherently because it is really important for those who are not involved in law to know about that part of our engagement in the development of law.
Ms Charlotte May: It is important to understand that the view that Daniel is expressing is not just the view of the lawyers, but the view of everybody involved in intellectual property in the UK—primarily the rights holders. Obviously, we in the profession get access to the rights holders. There are a number of different institutions that represent their interests: CITMA, CIPA and so forth. We can provide you with a number of documents in which they have indicated the views of the various bodies that they represent: the rights holders and the actual users. It is really important to understand that the consistent message that we receive is about the inherent benefit and value of the IP system as it currently is, how engaged users are with the process, how it works very well for them as it stands and how concerned they are about the practical impacts for them when things change.
There are a number of issues in that. One is the uncertainty, which obviously affects all aspects of Brexit. The Intellectual Property Office is doing its best to try to keep an open dialogue with what is going on, but the devil is in the detail and we do not have that detail yet. Uncertainty is a big issue. Cost is another big issue. Once Brexit happens, there will be a division of rights. All the existing EU-only rights can be carried on in the UK only if they turn into UK rights. Lots of them are registered rights so there will have to be a registration or renewal process. There will be more paperwork and more cost from engaging lawyers and so forth.
As Daniel has pointed out, there is also the extra cost and risk of having UK lawyers dealing only with UK rights, but having to engage separately with an EU lawyer to do everything in the EU space. Until now, users of the system have had one lawyer, quite often a UK lawyer, to do the whole exercise for them across the whole of the EU. Currently, there is a one-stop-shop for having a proper IP strategy and for having a lawyer help you as a business with your trademark portfolio and your patent portfolio—indeed, your whole rights portfolio which interacts with every aspect of your business. These are serious practical consequences of Brexit for businesses which they will have to engage with and get their heads around. It is important to understand that it is not just the lawyers who are affected by this.
The Chairman: It is the clients.
Ms Charlotte May: It is the clients.
The Chairman: The small businesses, as well as the big businesses.
Ms Charlotte May: Absolutely.
The Chairman: For those who are listening, it would be helpful to know that although intellectual property sounds very grand, we are talking here about inventions or ideas that people have had. They then set up businesses around them to make sure that those ideas are not stolen.
Ms Charlotte May: Absolutely.
The Chairman: Can you give examples of the sorts of things you deal with?
Ms Charlotte May: Yes. It is easiest to start with trademarks. Trademarks protect the name of a business. Every business has a name. It will want to stop other businesses, particularly businesses trading in the same or similar areas of goods or services, using a name that is either the same or confusingly similar because that can draw business away from it as a provider. The idea of having a legal system to protect your business name is relatively straightforward and most businesses get that.
Let us think next about a website. Most businesses have a website. The domain of the website—the www dot name—is also protectable within the trademark space. On top of that, you have the content of the website. You have spent time and money designing your website. You have paid someone for that process. The last thing that you want to do is allow a business competitor to copy and use what is on your website. Then you are into a copyright situation because, as a business, you are likely to own the script on your website. Your business may pertain to selling a product that is protectable in the form of a patent. Patents protect inventions: novel and non-obvious contributions to the technical space. That can be anything from a pharmaceutical to a computer program, in certain circumstances, or a mobile phone.
The Chairman: It can be a beauty product.
Ms Charlotte May: It can indeed be a beauty product.
The Chairman: It can be a clothing design.
Ms Charlotte May: Yes, or the clip on a belt used for hiking. There are all sorts of different technical spaces in which patents engage. They are really meaningful for business because they protect that innovation. They protect the time and money invested in coming up with that idea and monetising that idea through design, development, sale and so forth. The patent gives the inventor a monopoly for a fixed period of time. The point of the patent is that it is the quid pro quo for disclosing the invention and improving the stock of knowledge of the trade.
Q3 Baroness Shackleton of Belgravia: Thank you for that; it was extremely helpful. You talk about enshrining the patent law in our legislation. It is probably a bit like family law, which is where I practise. Without reciprocity it is pretty useless because you cannot enforce it. I agree with Mr Alexander. In the division in which I practise, a lot of it happens between the judges; it is about them picking up the telephone because they have mutual interests. That is hugely valuable and has been developed and honed over a number of years. Do you have any idea how this is going on the other side of the fence or, like family lawyers, are you in the dark as to how it is working from the European angle?
Ms Charlotte May: Do you mean at the judicial level?
Baroness Shackleton of Belgravia: Yes. It is all very well to say, “We will take all the laws and enshrine them in ours”. However, when we come to enforce them, there will be difficulties unless they believe that they are bound by the same agreements. We could be enforcing laws in this country according to European law without any reciprocity at all. They may choose to ignore what we are doing here or not to enforce it.
Ms Charlotte May: I am not sure that I can answer the question but I will try my best. The starting point is that our judges are highly respected and revered by their brother judges in other member states. Secondly, to an extent the feeling is mutual. There is significant respect across the judiciary in the European space. The judges meet and discuss ideas. There are a number of annual European meets in the patent space and the trademark space. There has been a significant level of collaboration up to now because they are exchanging ideas and are all working on the same law. I do not know whether or not that will continue.
Mr Trevor Cook: I would like to elaborate on that. Intellectual property is perhaps a little different from other areas of law in that it is so much a creature of international conventions. So many standards are established by international conventions, particularly in the area of patents, where we are subject to the European Patent Convention, which includes all the EU member states and a lot of non-EU member states. That imposes certain norms.
Within that framework, the judges are very astute about considering one another’s judgments. Indeed, in the German courts there is now almost a specific practice that when you are litigating a parallel patent in Europe, you have to take some account of any decisions elsewhere in Europe. It is a general practice in Europe in patent litigation that if you reach a decision that is different from that of another court, which can be because you have different evidence before you and different experts, you give reasons why you are doing so. There is a framework of respect, as Charlotte has explained.
The Chairman: We have a lot of ground to cover, but I want to ask you a question before we move on. Are you sanguine about how this is developing or do you have anxieties about how we are moving forward?
Mr Trevor Cook: I endorse all the points that Daniel and Charlotte have made, but there are two points that I would like to flag up. One is really an elaboration of Daniel’s third point about influence. It is the whole question of the Unified Patent Court. I know that that is a matter of concern to the Committee as well.
The Chairman: Very much so.
Mr Trevor Cook: I hope that we will come to this separately, but it is very important that the UK remains part of that and actively takes steps to do so rather than assuming that everything will work out some way down the road.
My second point is not an immediate consequence of Brexit or something that happens on Brexit day, so to speak, but is one of the longer-term consequences. There is now discussion about entering into free trade agreements with various other countries, as we will have to do. One of the free trade agreements under consideration, because it is already there and provides us with the opportunity just to join without having to negotiate very much, is what is now the CPTPP: the Pacific agreement, whose members include Australia, Japan and so on. There is already talk of joining that, but there are inconsistencies between its provisions and, in the area of patents, for example, the provisions of the European Patent Convention. It might mean that, were we to join the CPTPP, we would seriously have to consider our position under the convention. I am fearful that in the longer term, there is a real threat to the coherence of the UK intellectual property framework as we work through the consequences of Brexit.
Q4 Lord Polak: I am not a lawyer, and a lot of people watching this are not lawyers either. They were told, as we all were, that we would be able to make our own rules and run everything ourselves, but clearly it is not so simple. You have all talked about risks and uncertainty, but we are uncertain in many areas. Daniel said that the Government seem to have got this one or that they are beginning to understand it and are working hard. Is it not true that we will find solutions to these things? That is what you do and what businesspeople do. You will find the solutions and the answers, although it may be a bit rocky. Putting that aside, are there any positives to Brexit from an intellectual property law point of view going forward?
Mr Daniel Alexander: Should I deal with that? I can then come on to the next question on opportunities which to a degree relates to this. There are several answers to the question. First, Trevor has mentioned the international harmonisation framework. One thing that is important to realise in intellectual property is that, quite independently of our membership of the EU, we are part of an intellectual property system that essentially has been harmonised in a number of areas since the end of the 19th century. In patents, the European Patent Convention, although it is European, is not an EU instrument. It is something that has provided one-stop-shopping for patent protection which is very important for industries that are important to this country. It is important not only for rights owners but also for potential users because the system that checks whether the rights are valid is just as important as granting those rights. In the field of design, similarly, there are constraints.
Although it is right to say that if one leaves the EU opportunities will open up in the sense that there is a freedom to do things that otherwise would not exist, it is very important not to exaggerate the nature of those freedoms. Part of the reason for that is because although no one is going to say that there will be disasters on a national scale as a result of leaving the EU regimes, it is important to be realistic about what one can expect by way of the benefits from doing so. This is not an area where the Government have identified any things that they want to do with respect to the IP system that they are being prevented from doing as a result of the current system. That is because the current system is really good and because the UK has been absolutely at the heart of creating it in a number of ways. For example, Charlotte, who was the comptroller’s counsel, would be before the European Court of Justice, which is much maligned in some quarters. It is not perfect but it is a jolly good court that does a lot of difficult things in difficult circumstances. Charlotte would be fighting the UK’s corner and, partly because she is a good advocate, very often succeeding in getting the UK’s point of view across in important cases where the legislation is loose. That is a really important aspect of the UK’s work.
I come on to the specific opportunities. Let me give you some examples of things that have been mentioned as opportunities. One might say that if we are out of the EU-designed system, there will be an opportunity to provide a single unified UK design right. There are undoubtedly some benefits which might result from that. The design right protection system is quite a complicated one and potentially a range of rights protect industrial designs in particular. It is not an ideal system. However, independently of Brexit, this is not something people have really been agitating for. No cost-benefit analysis has been done to say, “Okay, we want to move to this system”.
The second issue, which is very important for the pharmaceutical industry, is supplementary protection certificates. This is getting into the very nerdy weeds of patent law. Essentially, supplementary protection is a period of extended protection to take account of regulatory delays in getting pharmaceuticals on to the market. This is unbelievably important for the industry in this country, but it is also important for the health services which want to take advantage of generic medicines coming in at an earlier stage. One is dealing with a complex balance of rights that is currently governed by EU law.
No one would say that it is an ideal system, but I can tell you that as soon as you start messing around with the system, very strong interests will come along and say, “Wait a moment. We want this and we do not want that”. Let me give a concrete example. Switzerland has the “freedom” to have a completely different SPC system. What has it decided to do? It has reproduced the EU system, so this is another area of theoretical freedom.
The third example is the reform of copyright law. The copyright Act has become a little baggy, it is fair to say. There is a very good paper written by a Cambridge professor and one senior patents judge saying that this provides an opportunity. Yes, it does, but a whole lot of other problems emerge as soon as you start to open the can. Again, it is not something for which there is a great groundswell. If it were an area where you could say, “There is a great pressure to do this and we are prevented from doing it by membership of the EU”, I would get the point, but that is not the point; it is actually the reverse.
Finally, the really huge area is exhaustion of rights. Again, this is a fairly nerdy area. At the moment, as you know, if you put products on the market in the EEA the intellectual property right is exhausted. That is a matter of EU law. The Government have said that they intend to preserve that position, at least until there has been a consultation period. If you change that to provide for an international exhaustion regime, it would mean, for example, that if goods subject to an international property right are put on the market anywhere in the world, they could be parallel-imported into the United Kingdom which would affect the price of products in the United Kingdom. You can imagine that there are some industries that might say, “I’m not sure that I am so happy about that”. Conversely, if you say, “No, we are going to the other extreme. We will provide a national exhaustion regime”, so that rights are exhausted only if you put goods on the market in the United Kingdom, there will be others who will say, “Wait a moment. You are not doing that without a fight”.
There are all these cans of worms, as they might be called, that freedom opens. It is unclear, certainly in the discussions we have had, that any of them are desired, let alone desirable. One has to be careful with the rhetoric that one sometimes hears about there being the freedom to do X or Y. Trevor has mentioned the example of the CPTPP. Could the price of entering the CPTPP be abandoning the European Patent Convention? My goodness. The patent convention is not an EU convention, it is the foundation of European patent law. It is like saying, “We will withdraw from the European Convention on Human Rights so that we can do a deal with Japan on some trade”. Yes, it is an opportunity, one could say—
The Chairman: But is it one that we would value?
Mr Daniel Alexander: Don’t even think about going there. I am not saying that this is something that is seriously under consideration. One has to be much more analytic with respect to the issues of opportunity than some have been.
Q5 Lord Lester of Herne Hill: Many years ago I took a case for a Mr Matthews in which we convinced the Strasbourg court that a freedom pass was private property and therefore he could not be discriminated against. In several of the points that you have made, you have all said that legal uncertainty is a major problem. Let us suppose that Brexit happens exactly as the Government wish. Will Article 1 of the first protocol to the European Convention on Human Rights and its guarantee be used in order to cure the uncertainty problem or is that not something within your landscape?
Mr Daniel Alexander: I am glad that you have asked that question, as they say. Actually, it very much is. Let us take the most concrete example: registered trademarks and registered designs. Some 1.7 million are currently registered and effective in the UK. On Brexit, they will disappear. You might think that A1P1 has something to say about whether you can just do that, but the Government are on the case. They are making arrangements to ensure that there are at least parallel rights. Indeed, that is provided for in the draft withdrawal agreement. I think that it will happen even if there is no withdrawal agreement.
That may be the case. You referred to the freedom pass being potentially protectable. Think about rights of professional access to institutions. There is case law which you will know better than I do in relation to that. You might say that this is an issue where not just the UK but the EU ought to be co-operating to ensure that what might be called valuable trading licences are not lost. It is an area of some complexity, as you will know, in relation to the scope of application of A1P1 and the exceptions to it. Both Trevor and Charlotte have made the point that the difficulty with intellectual property law is that you are dealing not just with a regulatory regime but with a regime that confers rights of private property which are then protectable by other regimes. One cannot ignore that. The wider point you make is that it is another indication of the constraints that exist on freedom of action on the part of any Government in this respect, just as there are constraints that operate in a number of areas within the Committee’s purview.
Ms Charlotte May: There is no doubt that the UK Intellectual Property Office is very alive to this issue. In the technical notices it has published it outlines how it sees the situation in a no-deal scenario. It does its best to try to react to the situation of automatic loss of rights because all the EU-only orientated rights disappear on the day on which Brexit happens. The IPO is alive to that problem and its general plan is to create UK equivalence.
All of that is fine as far as it goes. However, as we have said already, the problem is that to a large extent, the devil is in the detail. Take the trademark situation by way of example because it is conceptually quite easy to get your head around. You apply for a Community or an EU trademark. It is one trademark that covers the whole EU space. There is an obligation on you to use that trademark. If you do not use it, it becomes vulnerable to attack. It will be liable to be revoked for non-use if you do not use it within five years of registration. The case law has developed such that you do not have to use it in every member state in order to have used it for the purposes of meeting the requirements of the legislation. As long as you use it on a sufficiently meaningful scale, by reference to the nature of the goods or services in respect of which the mark has been registered, you are deemed to have used it, so you keep it alive for the purposes of registration.
There is an issue here when Brexit happens. Let us say that you are primarily a UK company but that you have a portfolio of EU trademarks because you have some level of trade across the EU. However, you started in the UK and are slowly migrating outwards. In that situation, your use is predominantly in the UK, so you have no difficulty maintaining the registration of your new UK right that will appear after Brexit, but you query whether or not your use in the UK will be sufficient to maintain what will be left of your EU trademark, which will be EU 27 rather than EU 28. That is a whole area of law which will be up for debate many times over in the years post Brexit. Nobody knows the answer to that in the no-deal scenario. If there is a deal, no doubt some form of reciprocity will come about through that. Reciprocity is very important in respect of a lot of intellectual property.
Another example relates to digital communication and broadcasts. As things stand at the moment, when you make a satellite broadcast, you need clearance from the country from which you are broadcasting. You are then deemed to have clearance all across the EU so you do not have to go through the process of getting licences in every member state in respect of the copyright content of your broadcast. Once we leave the EU, that will not apply to us any more. If you are a UK broadcaster broadcasting from the UK but via satellite so that your broadcasts can be picked up by other member states, you will face a difficulty because you will have to look at getting separate licences in every other member state. The UK can do so much, but only so much. The A1P1 issue is going to be a real issue.
It cuts both ways. I go back to the trademark situation. Let us say that you are a French business with a European trademark and suddenly the UK bit of that trademark becomes a UK mark and your business is primarily in France. You might want to expand into the UK at some point in the future, but you are not doing enough business in the UK to keep your UK mark alive. You are potentially losing a right there. As I said, the devil is in the detail, and the detail is complicated.
Lord Lester of Herne Hill: For the benefit of our viewers and listeners, can we explain that when you say A1P1, you mean Article 1 of the first protocol to the European Convention on Human Rights which guarantees the right to the peaceful enjoyment of possessions?
Ms Charlotte May: Absolutely.
Lord Cromwell: I am glad that you got on to the no-deal technical notices, because the question that I had for you was about exactly that. To me, the tenor of the notices is almost that there is nothing to see here. We will remain in membership of the key treaties, there will be continued recognition, and on this subject, as on so many that we have had in front of this Committee, everything will be taken care of, in this case by a shiny new set of trademarks rights and designs. We have heard that the civil servants are working very hard on this so we need not worry. Equally, you have given us a very insightful view of the difficulties, risks and costs, with the devil being in the detail. What is your view of the Government’s plans in this area? Is enough time, resource and understanding being deployed or, to quote Mr Cook, is everything going to work out in some way further down the road? Is that the attitude being taken? What is the reality? Is there nothing to see here?
Mr Trevor Cook: As Daniel has said, conceptually the technical notices are sound. We are talking about a situation in which the Government recognise that in the case of a no-deal Brexit, they will have to convert EU rights in designs and trademarks, plant variety rights and geographical indications into national rights. With trademarks and designs, conceptually this is relatively easy, subject to the issues that Charlotte has mentioned. However, we have not seen the precise detail of how this will take place and it is not very far away now. There is a separate notice out in relation to plant variety rights. There is a separate notice from Defra out in relation to geographical indications, but it is much more vague about the sort of system that it is going to establish to allow for the continued protection of geographical indications in this country.
Lord Cromwell: I am trying to strike a balance between, “It’ll be all right on the night”, and, “We are working terribly hard on this, but you can’t see it yet”. Which is it?
Mr Daniel Alexander: Let me deal with the point about there being nothing to see here. One can take it in separate areas. Let us take trademarks. As Trevor quite rightly said, in relation to substantive trademarks there is an attempt to replicate. We have dealt with the issues that create difficulties in trying to replicate. Those are non-eradicable difficulties. The Government can work as hard as they like on these issues, and they are doing so, but the issues of uncertainty on that point will remain. They are not mentioned in the technical notice, but they are there.
Let me give another example of there being nothing to see here. The technical notice says, “UK withdrawal is expected to have consequences on the rights of UK businesses, organisations and representatives to represent themselves and on their choice of representatives”. You think, “Okay, that is a bit anodyne. There is nothing to see here”. However, the reports on these matters by the Chartered Institute of Patent Attorneys and the Chartered Institute of Trade Mark Attorneys, which we can supply you with, say that this will have a very major impact on businesses and their clients. It is one thing to say, “These notices are written in suitably flat terminology”. No criticism can be made of that, but it is very important to get under the skin of what is actually going on here.
Take the example that Charlotte has given. There is nothing to see in the copyright notice. However, let us look at the list of things that will be impacted because they will no longer be subject to European clearance. Take a look at the notices issued by the EU itself which say, “Don’t even imagine that you are going to get unitary clearance in respect of broadcasting rights of the kind we are talking about”. Take a look at the materials issued by the EUIPO in relation to some of the points. It is just not right to say that there is nothing to see; there is a great deal to see, but quite a lot of it is not obviously visible from the notices.
Lord Cromwell: That is my point. Is it really being gripped or not?
Mr Daniel Alexander: My sense is that the issues which are capable of bring gripped—those which are exclusively within the power of the United Kingdom to do unilaterally such as providing its own unilateral regime—are being worked on intensively. Whether that will result in a regime that everyone recognises as being adequate is another question. However, another aspect of this is equally important. There are two sides to this: the UK and the EU on the other side. In my view, it is just as important that the EU institutions engage on this issue to ensure continuity, maximum certainty and maximum clarity. One thing that is vital and which has been done successfully over the years is a very good dialogue between the administrations of intellectual property rights. The UK IPO has a good relationship with the EUIPO and so on. It is important that the Government encourage such co-operation to try to ensure that these sorts of things can happen as smoothly as possible. One of the worries that I have, not with the Civil Service’s approach but more with the approach of the Government, is that they are not focused on what might be called micro-diplomacy at the technocratic level. That would say, “Right, if we are leaving the EU it is more important that we engage with these institutions to ensure that there is continuity, not less important”.
Baroness Shackleton of Belgravia: We hear today that the pharmaceutical industry is terrified of the consequences of leaving with a no-deal Brexit. Do you have any views on that? We have heard your general views about leaving with no deal and how unfortunate that would be, but this morning I heard on the radio about how it may affect research and indeed science generally. Instead of being leaders, we would be followers or non-participants.
Mr Trevor Cook: From the point of view of the intellectual property framework, we are rather limited in the levers that we can apply. We have talked about the supplementary protection certificate regime, which is a major incentive system for pharmaceuticals. We are not talking about the regulatory framework today, but you may be looking at that in other areas and talking to the Medicines and Healthcare products Regulatory Agency. Within the regulatory framework there are major incentive regimes in relation to pharmaceuticals such as data exclusivity. I think that there are technical notices about that. I do not know what the position is on orphan drug exclusivity or things like that in relation to Brexit and I do not think that anything has come out about that. Incentive regimes of that sort have to be put in place and got right, but we should be mindful of the fact that Switzerland has a very successful pharmaceutical industry and is not part of the EU or the EEA. Therefore, this is doable.
The Chairman: So we might end up with some sort of Swiss model. I am anxious to take us on because some people will have to leave.
Q6 Lord Anderson of Swansea: Understandably, intellectual property and our future relationships post Brexit did not play a leading part in the referendum campaign or in the Government White Paper that followed, which was very thin in respect of intellectual property. If you were writing the relevant parts of that White Paper, what sort of deal would you like to see achieved post Brexit?
The Chairman: I know that you could have a discourse of great length on this, but it requires an advocate’s pithiness. Is there a sensible deal that you would negotiate, Ms May?
Ms Charlotte May: We should maintain the status quo as best we can and stay as close as possible to the current system. As Daniel said at the beginning, intellectual property is quite unique, even in the legal world. It works incredibly well and in broad terms nothing is wrong with the system. Although there are details that people gripe about, when stakeholders, users and professionals are faced with the alternative, which is disrupting the system, they would rather keep it as it is. Because IP is unique and relatively technical, there ought to be a way conceptually of being able to keep it as it is without it somehow getting too difficult from a political perspective. It is conceptually easier to hive it off as a world of its own.
Mr Trevor Cook: You asked about what would be good in an agreement. One of the most important things would be continued rights for professional representatives on each side to be able to represent their clients with the other: a mutual recognition of professional representatives.
The Chairman: A mutual recognition of professional status and professionalism.
Baroness Shackleton of Belgravia: Along with rights of audience.
Mr Trevor Cook: Rights of audience and rights of representation, yes.
Lord Cashman: As you know, I was not going to intervene in this debate because I am a rights holder.
The Chairman: We may all be rights holders, for all we know.
Lord Cashman: I am agitated to intervene because of the issue that Mr Cook has just mentioned. We have had a wide-ranging discussion about replicating systems and what we would go at if we were to start afresh. Surely, regardless of what we put in place, unless we have mutual recognition of judgments and a mutual form of adjudication such as the European Court of Justice, any system that we propose must be inferior.
Mr Daniel Alexander: The reality with IP is that there are a very large number of ways of skinning the cat. Different rights regimes provide slightly different benefits and costs for different players in the ecosystem. It is very difficult to say that any one system is perfect. I do not think that anyone would say that our system is perfect, but it is jolly good. However, one has to remember that it is not just jolly good as a system, it is good at dealing with changes in the system. When a change in the law is proposed, the UK IPO does very comprehensive consultation and an economic analysis of what the changes should be so that everyone can see what the benefits are. Unfortunately, with the Brexit approach, all of that has gone out of the window. You do not see detailed consultations asking, “What should we do?” That is why many people say that the best thing is just to continue as we are until the case for change in relation to specific areas is made in the normal professional and governmental way. That is the way in which it is always done in this country and it is the way it is done in the EU.
Mr Trevor Cook: The further point I would come back to, which is not quite about maintaining the status quo, is the question of the Unified Patent Court. We are very close to having that in place. It would be tragic if the UK were not to engage in the coming negotiations to ensure that it remains a part of that.
The Chairman: We will turn to the unified court in a moment. I will bring you in because I know that it is something you feel very strongly about. Everyone is content, so I will bring in the Earl of Kinnoull.
Q7 Earl of Kinnoull: I want briefly to ask about the Brussels I Regulation (recast), which, for the benefit of those who are watching the regulation, deals inter alia with the recognition and enforcement of judgments. It also has provisions that deal with intellectual property rights. Can you give us a few brief points on what impact it would have if the regulation did not make it through in any deal and therefore we lost the benefit of it? The Committee has been thinking about the Lugano convention, so it would help us if you could say whether it would be helpful to us to accede to it quickly.
Mr Trevor Cook: I am not sure that we would be able to accede to the Lugano convention quickly. The EU is a party to the convention so it would have to agree to that.
The Earl of Kinnoull: We are in a very high state of knowledge about how you do that. The question is more to do with whether it would be helpful if we were inside the convention.
Mr Trevor Cook: Yes. The Lugano convention replicates many aspects of the Brussels I regulation. Of course, it includes non-EU countries such as the EEA countries, and in particular Switzerland. From that point of view, it would be a good framework to follow. In relation to the enforcement of intellectual property rights, we do not see so much application of the Brussels I regulation in practice. Indeed, the only specific reference to intellectual property in the Brussels I regulation says that it does not apply to issues of validity of intellectual property rights. When you come to infringement issues, because rights tend to be enforced nationally in the location of the infringer, it is less important than perhaps it is in the context of contractual disputes where it becomes very important and where I would urge the Committee to consider alternatives such as the Hague choice of court convention whose members include the EU and Denmark, which not treated as part of the EU in such matters. It would be open to accession by the UK. That would allow for the mutual recognition of judgments in relation to contractual matters such as IP licensing.
Mr Daniel Alexander: It is an extremely good question. As Trevor has said, the jurisdictional provisions in the Brussels I regulation tend to have relatively limited impact as regards their practical use in intellectual property litigation in the UK. Part of the reason why it is a very difficult question is this: if one abandons the Brussels I regulation, the question is what would spring up in its place? The answer becomes a complicated question on the conflict of laws because the “common law” of conflict of laws relating to jurisdiction then effectively replaces it. The difficulty then is determining what the common law that is replacing the Brussels I regulation is, in an environment where the regulation has had an impact on the approach that one should take to jurisdiction on these issues more generally. It is a difficult question.
The jurisprudence in this area includes some from the Supreme Court, in the Lucasfilm case in relation to jurisdiction. I will not weary you with that now, but it is probably a topic for a rather good PhD thesis on the conflict of laws. I say that seriously because a very lengthy book by two professors deals with the question of conflict of laws in IP, even ignoring Brexit, that runs to 400 pages or so of detailed text. I do not think that I can do the analysis justice now. If the Committee is interested, we could supplement what we say with a short note or preferably a recommendation that the Committee may want to commission some work from an academic on this specific issue.
The Chairman: Perhaps one of the authors of the great tome to which you refer.
Mr Daniel Alexander: Yes. They have written on some of the Brexit issues as well. We can draw that to your attention.
Baroness Ludford: I would like to ask you about geographical indications—the system of protecting Melton Mowbray pork pies, Stilton, Yorkshire rhubarb and so on. The Government’s White Paper states that the UK will establish its own scheme that, “will provide a clear and simple set of rules on GIs, and continuous protection for UK GIs in the UK”. Is this sufficient, and if not, what else will be needed? What happens to the protection of West Country farmhouse cheddar in France, where they are quite fond of “Le Chester”, or they used to be when I was young? How can a system just in the UK have any relevance in the rest of Europe? I happen to be rather fond of these protections. The UK was fairly slow to take them up, but I think they have proved significant and popular as regards issues of local identity.
Mr Daniel Alexander: The answer is: “Bonne question”, but we do not know.
Ms Charlotte May: We do not know.
Mr Daniel Alexander: That is a very big issue because although the UK can come up with its own regime of protection, it does not have any control over what the EU does with respect to geographical indications in the longer term. It is quite difficult to predict exactly how that protection will go and what the reciprocity regime will be.
Baroness Ludford: I have seen a reference to a sticking point being the UK recognition of EU GIs, but I have not seen any reference to EU recognition of UK GIs. They are the two sides of the coin.
Ms Charlotte May: It obviously depends on whether there is a deal. The no-deal situation in respect of GIs will look very different. If there is a deal, one would hope and assume that the deal involves reciprocity, which would be a fundamental part of the deal. We have already touched on reciprocity and it is very important in respect of all aspects of IP, not just GIs. If there is no deal, as Daniel says, the problem is that the UK can control only UK law. It creates both a risk and an opportunity. Arguably, there is an opportunity to have a UK situation where, for example, UK manufacturers can start to manufacture products and give them a name that is otherwise protected as a GI in other member states. A cheesemaker could start making Cambozola without difficulty, but equally if UK law were to go in that direction, there would be retaliation and your Melton Mowbray will no longer be respected in Europe. The difficulty that I suspect we will have is that in the no-deal scenario we are not going to want to upset things too much because if we open up the GI space in our own jurisdiction, there will be consequences for us in terms of lack of recognition or respect in relation to how our UK-orientated GI products are dealt with in the EU.
Baroness Ludford: Presumably, there is another dimension to this because if we want a US trade deal, the US is very hostile to GIs.
Ms Charlotte May: It is indeed.
Baroness Ludford: I would guess that this comes into the equation.
Ms Charlotte May QC: Yes, but then you have to work out what is more important.
Baroness Ludford: I know what I think is more important.
Mr Trevor Cook: I was about to make exactly the same point as Baroness Ludford concluded with. In looking at this, one has also to be mindful of the issues down the road in free trade agreements. If you look at the most recent free trade agreement between the United States, Mexico and Canada, most of the protocols are concerned with opt-outs of one sort or another in relation to geographical indications.
The Chairman: Thank you, Baroness Ludford, for that question. It is one in which I am sure the general public will be interested.
Q8 Baroness Neuberger: You have more or less answered this, but the Government’s White Paper specifically mentions five EU agencies that they wish to seek membership of after we leave. The EUIPO is not one of them. I would like to know whether you think it should be, but I rather get the impression that you do.
Mr Daniel Alexander: I think the fair answer is that it does not matter what we think because we are just lawyers, if I may put it like that.
Baroness Neuberger: Actually, it may matter because you are assisting us.
Mr Daniel Alexander: We can say this, and you may say, “Well, they would say that”. What I find more significant is that shortly before Christmas last year, there was a paper done partly with lawyers but also with the involvement of the IP Federation, which represents rights owners. The preferred approach from the real users of the system was that we should try to remain within the system. It is fair to say that that raises legal issues as to whether it is possible to remain in the system if one is not a member state of the EU. Those are not straightforward legal questions. It also raises, in fairness, political questions because the EUIPO system is governed by EU law; there are appeals ultimately to the General Court and on points of law to the European Court of Justice. But it is significant that the users are not troubled by that.
The other significant thing, which Charlotte touched on, is that the area of intellectual property might be regarded as a relatively politically irrelevant technical area. It is rare to see people who are concerned about membership of the EU express concern about it because of a judgment of the Court of Justice in a trademark matter or a particular view that has been taken in relation to registered designs. Partly because of that, people think that this is a system that in the interests of literally everyone—not just in the UK but users in the EU—would be advantageously continued. That is not something that the Government have been working on, at least not obviously, but it is important to say that that is actually desired. If that is not the option which is taken, people ought to be working towards the closest replicate to that option.
Lord Lester of Herne Hill: I do not understand the Government’s criteria for deciding whether to go back into an EU agency or not. Do you understand the criteria?
Mr Trevor Cook: I am not sure I understand the criteria, but I can perhaps understand why the Government are not considering some sort of relationship with the EUIPO. The EUIPO, despite its name, is primarily concerned with managing registration systems at the EU level for trademarks and designs. If we are no longer part of a unitary trademark or a Community design, there is very little sense to it.
Q9 Lord Judd: The EUIPO currently has in place a number of agreements with third countries that seek to combat counterfeiting. Should the UK seek to replicate these agreements if we leave the EU? In that connection, how long would the process of having specific arrangements in place take, and what the hell happens in the interim?
Mr Trevor Cook: The agreements the EUIPO has with third countries in relation to counterfeiting are primarily of an information-sharing nature. They do not impose obligations and so on. But you should also be aware that the UK IPO is actively doing things in this area already. It has a range of IP attachés in places such as China, India and Brazil who are intended to assist UK businesses in those countries and will concern themselves in matters of counterfeiting. I would have thought the way forward would be to build on the existing framework that the UK IPO already has in place and to develop it rather than trying to replicate the information-sharing agreements which the EUIPO has.
Lord Judd: How would that happen if the Government, for what I must say seem to be emotional or prejudicial reasons, are determined not to join the EUIPO?
Mr Trevor Cook: The UK IPO has relationships with other intellectual property offices elsewhere in the world. You may call them agreements between the EUIPO and these other intellectual property offices; they may in fact be relationships. The UK IPO already has parallel relationships which could be built on and developed. I would have thought that that is a more reasonable evolution.
Lord Judd: Earlier you made a strong point about how hard the Civil Service is trying to make the best of a bad job. Do you have an impression that it is doing any serious work yet in this sphere?
Mr Trevor Cook: I must admit that I have not seen any notices in relation to that from the UK IPO, but they have this framework and have had it in place for a number of years now. They promote it generally but they have not been promoting it in the context of what they are going to do about it after Brexit. That is a fair concern.
The Chairman: Thank you very much, Mr Cook. I see you have received a note, but I suspect you have covered the ground. I am very anxious that we have enough time to deal with the business of the Unified Patent Court. Lord Wasserman has a question in relation to that.
Q10 Lord Wasserman: What do you think will be the future of the Unified Patent Court—this brilliant idea of a new site at Aldgate and the announcement that we will have a division within it? Do you think anything will come of it if there is no deal? Indeed, do you think anything of it will come of it even if there is a deal?
Mr Daniel Alexander: There is a general hope that something will come of it, but there are also issues that one has to be realistic about. There is a move, which lies behind the UPC, towards much greater harmonisation in Europe to provide one-stop shopping for litigation and to reduce potential conflicts in judgments. That is widely welcomed by industry. It is fair to say that it is not universally welcomed, but there is a real will from the users’ community to set this up and get it going. It may be that you have not visited the UPC building in London. The idea of the structure is that there are London, French and German central aspects, the London one to be devoted primarily to pharmaceuticals and biotech, thus building on an absolute core strength of the country. I think it is also widely recognised that for matters to proceed in the UK, and particularly to stay in the UPC after Brexit, there will need to be some amendments to the rules and possibly amendments to the UPC agreement depending on the view that you take of it, because on one view it is limited to member states of the EU.
There is another issue that is the subject of a lot of debate at the moment, which is the legality under EU law of the United Kingdom’s continued participation in the UPC. For the particularly interested among you, a very lengthy paper from the Max Planck Institute in Germany deals with the constitutional issues of continued membership. A not quite so lengthy paper from another academic deals with the other issues, and there is in the academosphere, if I can call it that, a diversity of views. It would be unfair to suggest that the legal issues will be completely plain sailing as regards the UK’s continued membership. But many people say, “Where there’s a will, there’s a way”, and ultimately they ought not to be the obstacle.
The real issue is that even if the member states agree between themselves that the UK should continue as a member, there is an institution that has a say in legality, which is the European Court of Justice. We cannot completely predict what the outcome of such issues may be. The prevailing view is that it would be possible, but there are residual uncertainties on that front.
Mr Trevor Cook: I would back that up and say that a unified patent court for Europe, open to membership of any European Patent Convention member state and not just the EU, has been an aim for generations—ever since the European Patent Convention was signed in 1973. We now have it within our grasp and we should do everything we can to take that opportunity. It would be tragic for industry, for UK influence and for UK practitioners for us not to do that.
The Chairman: I can guess, Mr Cook, that your life in the law has been partly about wanting to see this come into being and that it would be a rather sad thing for it not to come to pass.
Mr Trevor Cook: It has certainly paralleled me.
Lord Judd: I am a complete layman with not a shred of legal experience in my background. Could you reassure us about what will actually happen in the interregnum should Britain decide to leave?
Ms Charlotte May: Do you mean in relation to the UPC specifically or to IP more generally?
The Chairman: How the interests of intellectual property will be looked after in the interregnum. After March, as we go forward in any kind of interregnum period, where will resolution take place of disputes over intellectual property?
Ms Charlotte May: UK intellectual property rights will still be litigated and decided upon in the UK. To that extent, nothing will change. The UK Intellectual Property Office will carry on being the granting body with respect to registered rights and our highly revered judiciary and legal system will carry on as is. Where things will start to change is the nature of the rights that the UK courts are grappling with, because they will no longer be grappling with EU rights. They will no longer sit as an EU trademark court and as an EU Community designs court. They will no longer be able to grant pan-European relief in respect of infringements that they can currently do specifically for trademarks—
The Chairman: It is very important for laypersons to understand this. Currently, if you are someone with an issue around intellectual property affecting other parts of Europe, you can go to a British court and get a resolution that will be recognised in other parts of Europe. That is how it works.
Ms Charlotte May: It slightly depends on the particular right that you are engaging in. Any lawyers listening would be upset with an answer that was just simply, “Yes”, because it is not quite that simple.
The Chairman: But by and large.
Ms Charlotte May: Yes, by and large.
The Chairman: People think that our issues are dealt with in our courts, but what happens when it is anything connected to Europe? Because of the arrangements that have been developed over a long period there is mutual recognition at the moment, which is one of the things that people are anxious will disappear.
Mr Daniel Alexander: Could I qualify that a little? The issue is not quite so much mutual recognition as the extraterritorial effect of some of the decisions of a single court. For example, with a European trademark or registered design you can get an injunction that is effective throughout the EU. If you are suing on a UK-only trademark, you can only get an injunction that is effective in the UK. That contrasts with the position with patents. Patents, once they take effect, do so as national rights. The idea of the UPC and indeed the unitary patent is to put the patent system into a position much more similar to the registered trademark system in this respect. You will be able to go to a single court with a single appellate structure and get a judgment that is effective throughout the EU. At the moment, if you have a patent, even a “European patent”, you have to sue in the UK, Germany, Holland and France for relief in those countries, with a few exceptions.
The Chairman: How do you response to those who say, “We want our judges making decisions on things affecting us and we don’t want any foreign judges involved. We want to bring all of this home”? What do you say to them?
Mr Daniel Alexander: That is actually a very serious argument, but it has a number of answers. Let us take the European Patent Convention, which again is not an EU body, that sits in Munich deciding on the validity of European patents for the whole of Europe. The tribunals there are composed of, inter alia, English judges in the boards of appeal and in the opposition divisions. That has been in operation for 40 years and there are no plans to abandon it. Everyone is happy with the system of centralised opposition and so forth. When it comes to decisions of the European Court of Justice, there are issues of what might be called judicial legitimacy making decisions from foreign courts, but again I think it is important not to exaggerate that. There are a whole lot of international bodies such as the Court of Human Rights which have an impact in the United Kingdom. The WTO panels have an impact as to what the United Kingdom can do by way of trade.
The Chairman: The International Court of Justice.
Mr Daniel Alexander: The International Court of Justice, the International Tribunal for the Law of the Sea and so on. A very wide range of bodies, including private arbitration panels, have an impact on the United Kingdom. The issue of ensuring judicial legitimacy in respect of decision-making, particularly in technical areas, is not a question of looking at the colour of the judges’ passports. The question in technical areas is: is the decision-making taking place in the optimal way? I used to do quite a lot of work in the European Patent Office. The most revered judge in the Board of Appeal there was a German judge, Dr Ursula Kinkeldey. She was a force of nature and anyone would say, “I will have my case decided by her because she is bound to get it right”. Did it matter that she was a German citizen? Absolutely not. It mattered that she was a very good judge with an unbelievably good grip of the science.
Lord Cromwell: To go to Lord Judd’s question about, if I may quote him, “What the hell happens in the meantime?”, given that the meantime could be quite a long time. From what you are saying, it is all about an informal co-operation between expert practitioners who respect one another, which is very similar to the witness statements we have had from trading standards people, for example. Is that really what is going to happen in the interim until maybe in a generation’s time somebody says, “This EU thing—maybe we should think about joining”?
Mr Daniel Alexander: You are absolutely right to raise that. In fact, if one thinks about what the EU has done, it has in some ways fostered these kinds of co-operative relationships between people making in some respects technical decisions in an optimal way. I am not trying to say that there are not political aspects involved. One might think, “Okay, what can we do with a Brexit interregnum?” Should we be saying, “Let’s try to ramp up some of the aspects of co-operation that take place at an informal level but which have been really influential”? Let me take one example. Lord Hoffmann was one of the most revered judges in commercial and patent law. He gave a leading judgment in relation to the scope of patent protection which subsequently was widely followed by other European countries. What did he do with the draft of that judgment before he issued it? This is public knowledge because he has written about this. He sent a copy to the President of the German Supreme Court. Why? Because he was concerned that he should be getting input to ensure that nothing was seriously out of kilter between the UK and Germany. The Germans reciprocate in that, and indeed to some extent their law is an adaptation of an aspect of United Kingdom law.
You might say that you should have a system of what might be called soft harmonisation where people say, “What we need to do is look at each other’s work—not to be bound by each other’s work strictly but to take it into account—and follow it where appropriate, and the United Kingdom Government should continue to foster that with respect to European partners”. That is one way of mitigating some of the issues that a very hard disconnect may result in.
Q11 Lord Lester of Herne Hill: I am reminded of the Bangalore Principles and the way they developed, but my question is this. The slogan “British rights should be decided by British courts” is simple and easy to understand, but is it not a hopeless idea because inevitably, for the reasons that you have given, there will be extraterritorial effects that will lead to satellite litigation in other countries? We may think that British rights can be decided in British courts, but what happens if a satellite case is brought in, say, the Irish Republic or in any other member state?
Mr Daniel Alexander: Let us think about the slogan: “British science should be done by British scientists”. How nonsensical would that be if we bear in mind Sir Paul Nurse’s interview this morning. If one thinks about intellectual property in broad terms, we are the creative industries’ infrastructure. The creative industries are not national now. Science is not national either in terms of its content or the physical location of where it is done. On the idea that one focuses on nationality rather than the underlying technical issues, while in certain international spheres I can see that there is a need to have one’s own person on the tribunal, in this context it is very difficult to see what the rationale is for that.
Baroness Shackleton of Belgravia: It is not about identity.
Mr Daniel Alexander: It is not about identity, but that raises a very important point that we have discussed. It is important that the UK voice is heard by those tribunals. To withdraw from that attempt to influence them in appropriate cases is just as poor in this field as it would be in human rights litigation, environmental protection, family law or whichever field you choose to consider.
Ms Charlotte May: I also think that the concept of British courts deciding British issues does not fit very well with modern business. A lot of modern business is European or global. There is no physical barrier around the UK where all IP activity stops. It comes back to the point we have discussed already about how all the users we speak to, the businesses, the rights holders, the stakeholders in this, do not want some kind of physical barrier around the UK because it affects what it is they are trying to do at the commercial level on a wider scale, and it comes back to why they want to carry on having UK lawyers representing them in these other jurisdictions and why they want to have a global strategy in respect of their IP. It is the same point: it is not something which is defined by nationality or country; it is bigger than that.
The Chairman: This has been a really rich and fruitful session of evidence and you have helped the Committee enormously. I cannot thank you enough. It has been an important session and you have been wonderful witnesses.
Mr Daniel Alexander: Thank you very much for inviting us. If there are particular issues that you would like us to deal with in writing, we will be happy to supply further notes. There are a couple of wonderful articles written on this area that I may supply to your clerk which provide a very good summary of the issues. They are just a few pages. One is impressive logic written by a judge, and you may find those helpful in your deliberations.
The Chairman: I am sure we will. Thank you very much for that offer.
