Wishful Thinking by Wishart MP as IP Bill passes third reading - misinformed MPs and BBC

The Intellectual Property Bill passed its Report Stage and Third Reading in the House of Commons on Wednesday, 12 March 2014.  This much was generally reported.  However, there has rather little detailed coverage of where that leaves the current status of the Bill.  This moggy is more used to dealing with legislative instruments in their final form than the intricacies of the interim procedures as to how they are amended en route, but by making Merpel skulk around the pages of the Parliament website, it appears as follows.

As this Kat understands it, the amendments to the Bill that were passed at the Third Reading are given here, and they appear to be the amendments listed under A in this Kat's previous report of the IP Bill (here).  These are a tightening of the proposed new qualification requirements for UK Unregistered Design Right, and a tightening of the intentionality requirement for criminal sanctions to apply for infringement by copying of registered designs.

The debate at Report Stage can be found here, and the following debate at Third Reading can be found here.

It will be seen that a number of other amendments were proposed at the Report Stage, but none seems to have been accepted (other than the two just mentioned).  The one that aroused the interest, and then ire, of this Kat was the following:

(3A) In making an order under this section which confers jurisdiction on a court, removes jurisdiction from a court or varies the jurisdiction of a court, the Secretary of State shall—
(a) ensure he takes into account the views of—
(i) HM Courts and Tribunals Service;
(ii) the Scottish Courts Services;
(iii) the Northern Ireland Courts and Tribunals Service; and
(iv) any other appropriate body;
and
(b) where the number of patent cases is such as to meet the requirements as set out in Article 7 of the Agreement on a Unified Patent Court, to confer local divisional court jurisdiction on—
(i) in England and Wales, the High Court;
(ii) in Scotland, the Court of Session; and
(iii) in Northern Ireland, the High Court.

This was put forward by Pete Wishart, the MP for Perth and North Perthshire.  It is an attempt, among other things, to ensure that The Court of Session in Scotland becomes designated as a local division of the Unified Patent Court (UPC).

The IPKat is perhaps not as angry
as after this unfortunate haircut

Readers who are familiar with the UPC will see immediately that this is drivel, in particular the second part (b).  The local divisions of the UPC are not designated national courts, but entirely new and independent courts, part of the new UPC structure, which is a transnational court.  It is completely impossible for "local divisional court jurisdiction" to be conferred on the Court of Session, or even the High Court of England and Wales, for that matter.

But the thing is that Mr Wishart already knew this.  At the Committee stage in January he prattled about this:

Clause 17 makes provision to confer, remove or vary the jurisdiction of a court in relation to dealing with the new unified patent court, giving the ability of the new jurisdictions to look over European patents and for the opting-out of the new regime. I think we all support the creation of a new unified patent court; in fact, some of us have been arguing for it for a long time. However, there are big issues for Scotland, because it could prevent Scotland from looking at the whole issue of patents. For decades, if not centuries, the Edinburgh Court of Session has had the ability and power to look after patents in Scotland. Scotland is a distinct legal jurisdiction; we have our own Scots law. With the new unified patent court, we may lose that ability to rule on patents. The UK Government will become one of the direct patent courts: they will be in London, Paris and Munich—all we need is New York for the pop song. London, of course, will be able to get one of the new unified patent courts. [Merpel notes that Mr Wishart cunningly avoids any mention of how many patent cases per year are actually heard in Scotland - she heard reports that the answer is around 2]

The UK as a member state has the opportunity to designate four other divisional courts. All we are asking of the Minister is to ensure that the Edinburgh Court of Session is included, so that we do not lose the centuries of experience of looking at Scots patents that we have built up in Scotland. If we do not do that, it will have a massive impact on Scots inventors and creators. Scotland practically invented the modern world—everything from tarmacadam to television, from Dolly the sheep to the Higgs bosun came from Scottish inventors or were made in Scotland—and here we are at the point of losing our ability to deal with patents, which would be patently absurd. [Merpel does not for one second doubt about the inventiveness of the Scottish, which is legendary]

We have so many IP-rich businesses in Scotland and so many sectors, including life sciences, renewables, particularly in the oil and gas sector. We need the ability for patents to be heard in Scotland. I can only imagine the cost and inconvenience for Scottish businesses if they had to travel to other jurisdictions to seek satisfaction in the courts with regard to patents. That is an inconvenience that small businesses can ill afford. [This would be persuasive if it were not contradicted by how few cases are actually heard in Scotland, Merpel cannot help but notice again]

I do not think the Government meant to exclude Scotland when considering the divisional courts of the unified patent court [And in fact, as pointed out by the IPKat below, the Government has consistently stated that it is very happy to consider locating a local division in Scotland]. I think that, as with most things to do with Scotland, the Government just did not think about it. That is the theme of Westminster rule when it comes to Scotland. If we were a sole member of the European Union—which we would be—we would be able to do this anyway. The Minister has an opportunity to contribute to the constitutional debate and put aside any fears for the entire legal establishment in Scotland. He will have seen the letters from the Law Society of Scotland and the Faculty of Advocates in Edinburgh. James Wolfe, vice-dean of the Faculty of Advocates said: 

“A divisional court of the UPC should be established in Scotland. Failure to establish such a court in Scotland would disadvantage Scottish-based businesses, would lead to an erosion of expertise in Scotland and would have an adverse impact on the Scottish economy.” 

The Minister has an opportunity to put this right and contribute to the constitutional debate in his inimical style. I hope the matter is resolved on the basis of the whole of the legal community of Scotland. [On this point, the IPKat will take up the matter below]

And he was quite correctly told by Mr David Willetts (Minister for Universities and Science):

The concern of the hon. Member for Perth and North Perthshire is about where local divisional jurisdiction should function. It is not the case that the national court of the host state has unified patent court jurisdiction conferred upon it. It may be possible for divisions of the unified patent court to share premises with national courts, but the unified patent court will be an international court with international legal personality, separate from the UK courts. The UK courts will, of course, still have jurisdiction over national patents. 

So why on earth was this amendment even introduced at the Report stage, when it is quite simply legally impossible?  And, even worse, why is Mr Wishart now reported as saying that his campaign has been successful, when actually it appears that it has not?  The BBC reported yesterday that:

There will be up to four divisional courts in the UK - but there were originally no plans to have one in Scotland.
The Law Society of Scotland and the Faculty of Advocates had urged UK ministers to step in and change the law.
That has now happened, with Scotland's Court of Session being appointed as a venue for these claims, provided there is enough demand.

What actually happened is that Mr Willetts stated:

the Government will look favourably at any proposal to site a local division wherever there is a business need, and a local division can be located in Scotland should there be enough cases to support one. I said on Second Reading that it was very possible that there could be one in Scotland, and I stand by that.

In other words, a local division could be located anywhere that there was need, including Scotland, as has always been the case.  It won't be the Court of Session; the amendment was not passed, and the Government's position is exactly as it was in January.

This Kat weeps that hogwash and misinformation is spread by our elected representatives, and then reported uncritically by our respected news services.

More angry cats on the BBC here