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National Audit Office report: Implementing transparency

Implementing Transparency Report from the NAO

Data are of course massively important to business clients  making commercial decisions, and of course to the lawyers advising them. Data management is also a huge aspect of the academic and practitioner work in intellectual property.

According to the National Audit Office, “In some sectors, data that would better inform accountability or choice is either not held or not yet made available. For example, in social care, neither the Department of Health nor its funded bodies collect appropriate information on comparative costs and performance of providers of home care for adults. For local government services, the Government has discontinued established performance frameworks and the Local Government Association is developing a new approach to performance reporting.”

According to the aforementioned press release, Amyas Morse, head of the National Audit Office, said:

“Opening up access to public information has the potential to improve accountability and support public service improvement and economic growth. What the Government is lacking at the moment is a firm grasp of whether that potential is being realised. If transparency initiatives are to be more than aspirations, then Government needs to measure and monitor both their costs and benefits. This is vital for tracking success and learning what works.”

The Guardian has reported on the following aspects:

“Read between the lines of its report out today, Implementing Transparency, and you will see a government which has been chucking out tonnes of data, that no-one looks at and without a complete strategy. Oh and it’s cost an awful lot of money.”

Specifically, their recent article provides the following:

  • Government departments reckon on spending from £53,000 to £500,000 each year on just providing and publishing open data
  • was originally run by the Central Office of Information and received funding of £1.2m in 2010-11 from the Department for Business, Innovation and Skills. In 2011-12, the project was brought inside the Cabinet Office, and what the report calls “further engagement activity with stakeholders” increased the annual running costs to £2m
  • The police crime maps cost £300,000 to set up and have annual running costs of more than £150,000. The National Policing Improvement Agency has budgeted £216,000 in 2011-12 to further develop the site, including linking crime data to police and justice outcomes

This does not seem to be matched by public interest. For example, also according to that Guardian report:

“While has had more than 1.75m visits since it was launched in January 2010 (which is pretty much what the Datablog gets in a good month) most of its visitors leave from either the home page or the data page on the website. Page views for transparency data on the Ministry of Justice website represented just 0.02% of the overall site traffic from April to September 2011″

America Invents Act 2011 – a long way from Lincoln

The history of innovation in the US is formidable. Abraham Lincoln had an avid interest in cutting-edge technology. As an attorney, he represented railroads. During the Civil War, he frequented the telegraph office (which provided the instant-messaging of its day) for the latest news from the front, and was actively involved in directing troops. He encouraged weapons development and even tested some new rifles himself on the White House lawn. He is, in fact, the only US president to hold a patent (No. 6469, granted May 22, 1849). It was for a device to lift riverboats over shoals.

The US is very proud of its record on innovation, more than its history in innovation, some might say. In his 2011 State of the Union address, President Barack Obama, championing US innovation, research and development, called on Americans to “win the future“, This, he said, is “our generation’s Sputnik moment.”  The Senate approved a sweeping reform of the nation’s patent laws on Thursday, sending to Obama an Act that changes the system for determining priority for inventions at the patent office, and provides more financing for an agency beset by application backlogs and outdated computer systems.

State of the problems

It now takes, on average, two years to get a preliminary ruling on an application, and an additional year for final grant, according to the US patents office. The Internet age, furthermore, has created a surge in applications: in 1997, 2.25 patents were pending for every one issued, but by 2008 the rate had nearly tripled, to 6.6 patents pending for every one issued, according to patent office statistics. A backlog of about 700,000 applications is made worse by computer systems that are out of date, according to Gary F. Locke, the current US Scretary of Commerce.

The America Invents Act (formerly the Patent Reform Act of 2011)is the product of extensive consideration. For four Congresses, the US have worked on this. A principal justification for the impending changes to patent law is that they will promote technological progress in the United States (and thus create jobs).  It will possibly change America’s inventor-friendly patent system to favor whoever files for an application first. The House of Representatives passed their version of the Act on June 23, 2011 by a vote of 304-117. After rejecting proposed amendments to a bill approved by the House last June, the Senate voted 89 to 9 to pass the bill, completing an effort of at least six years to overhaul the patent office’s operations and the procedures by which patents can be challenged. The full text of the Act can be accessed here from JD Supra.

Some interesting key features of the new Act are as follow.

Changes to Novelty Rules

The shift to a first to file system is central to the America Invents Act.  This provision has the potential to encourage early disclosures of information by the inventor.  Although prima facie it appears to provide no more ability for inventors to engage in disclosures than the existing one-year statutory bar, under which an inventor was free to disclose whatever it wanted for the one-year period prior to filing, it perhaps may result in more disclosures than under the present structure.  A disclosure race may be encouraged. It is perhaps rather simpler to award patents to the first person that files an application, regardless of whether or not they are the original inventor.

The new Act arguably favours big corporations who can file patents as soon as they hear about a new invention. Several groups representing small businesses, entrepreneurs and early-stage investors have said that change puts small companies, which usually account for the bulk of new jobs, and individuals at a disadvantage to large companies that employ fleets of patent lawyers. Many large corporations — like General Electric, Caterpillar and IBM — supported the bill, which opponents suggested was evidence that the bill favors behemoths at the expense of the little guy.

Creation of a Prior User Defense

Even as the changes to the novelty rules seem to encourage early peripheral disclosures of technological information, at least for US-only inventors, the creation of a prior user defense pushes towards less disclosure. The types of inventions that the prior user defense most applies to are those with the capability of being protected through secrecy.  A prior user defense is less important for inventions whose workings are readily understandableM once they are placed on the market because these products already represent potentially invalidating prior art; thus, this type of defense is considered to have most relevance for non-self disclosing inventions, a category that includes many processes.

Elimination of Best Most Requirement

Section 15 of H.R. 1249 effectively eliminates the best mode requirement by amending the list of invalidity defense to exclude best mode  While the best mode requirement remains in 35. U.S.C. 112, and thus theoretically could be used by a patent examiner to reject an application, failure to disclose best mode may also not be a basis for holding a patent unenforceable any longer.

Post-grant review

The Act currently contains a provision for an eight-year period of postgrant review of patents already issued. The measure was specifically aimed at so-called business method patents, which provide protection for a unique method of performing a task. The measure was, in fact, heavily favoured by the banking industry, which has been beset by patent infringement suits over things like electronic imaging of paper checks.





The next London #tweetup

People will remember that I enjoyed very much the last legal #tweetup that I attended. The next ‘do’ will be at The Old Bank Of England, 194 Fleet Street, London, UK. London TweetingLegals (organised everytime successfully by Shireen Smith of Azrightspersonal website of Shireen) is a regular meet-up in the capital to connect lawyers and related professionals, and law bloggers together. Azrights was set up to provide good value Intellectual Property (IP) focused, IT, and Internet law services of high-quality. It is dedicated to providing the innovations the market needs. These are indeed challenging times for professional legal services firms, and the alternative business structures, and the stakeholders within them, as well as, of course, clients, customers, and the general public.

Shireen has a very relevant post here, how lawyers should perhaps position themselves in the new deregulated market.

Are lawyers getting it right giving free advice to prospective clients to impress them with their lawyering skills

For more information contact Shireen Smith, of Azrights,

To come along, please go to this page. The event is on September 26th, roughly between 6.30 and 9 p.m.


Competition: markets, marketing and the law

We will be playing these videos during our meeting of the BPP Legal Awareness Society. There will also be a short presentation on media pluralism.


Lotus or no Lotus?

Group Lotus Plc & Anor v 1 Malaysia Racing Team SDN BHD & Ors [2011] EWHC 1366 (Ch) (27 May 2011)

Neutral Citation Number: [2011] EWHC 1366 (Ch

The judgment is available here.

After weeks of deliberation, the High Court in London ruled yesterday that two apparently different ‘Lotus’ teams could continue to race in the sport.

In a detailed judgment, Mr Justice Peter Smith ruled that Team Lotus had the right to race in F1 as “Team Lotus” – and that the car manufacturer “Group Lotus” had the right to use the Lotus name in association with another racing team. That meant they could continue to run in their classic black-and-gold livery with Renault, as they have done so far this year, in the Lotus Renault GP team. The court ruled also that Team Lotus, a ‘new’ Anglo-Malaysian outfit created to enter F1 in 2010 as Lotus Racing, had breached a licensing agreement with Group Lotus last year.

Under this ruling, “Team Lotus” has the right to continue to race in Formula One under the name Team Lotus, but the effect of the judgment is that only “Group Lotus” can use the name ‘Lotus’ on its own in F1. “Group Lotus” is concerned that this aspect of the judgment will cause confusion in the eyes of spectators and the wider public. Accordingly, “Group Lotus” is seeking leave to appeal so that the right to use the Lotus brand in Formula 1 is clarified once and for all in the interests of the sport and the fans.

The issue over the racing colours arises from the decision of “Group Lotus” to paint its cars in the “iconic” black and gold. Last year, the Lotus Racing cars were what might be called “traditional” Lotus colours of green and yellow. There are thus currently two sets (four in total) of cars entered into F1 proposing to or already racing with the name Lotus incorporated in their name. The major issue therefore is whether or not two sets of Lotus cars can legitimately race in F1 under a name incorporating Lotus in some way and use the Lotus Roundel. The organisers of F1 do not apparently regard it as a problem.

Central to the case is the perceived goodwill, by fans and customers, towards the brand of “Lotus”, as it is popularly understood.

Para 156

GL was formed to manufacture and sell sports cars in 1958. It directly has done nothing else. Colin Chapman started life racing cars. He also manufactured racing cars and sold them to Privateers. In the early to mid 1950s he started racing under the name “Team Lotus”. By 1961 and with the incorporation of TLL a decision was made clearly to compete in F1. Thereafter the Team Lotus raced cars; it did not manufacture them. It is clear that the goods and services that TLL sold when it went into the F1 business were the benefits that might accrue to being associated with a successful team. GL appreciated those benefits and paid for them []. Sponsors appreciated them and will have paid for them. Success breeds spin offs. The racing public likes to buy goods and memorabilia associated with successful F1 cars. This has over the years become a significant part of the income for F1 racers. “The public” thereby identified is not the same as the public at large nor is it necessarily in my view the same as the public who might like to watch F1 racing on television. Equally the public from the point of view of GL’s sales of Lotus sports cars is the public who primarily wish to buy its products i.e. Lotus sports cars. Some members of the public will undoubtedly be attracted because of the association with Team Lotus. It will be thought that if GL is associated with successful racing cars they might be expected to produce successful sports cars. There will be people who buy Lotus sports cars who have no interest in F1 racing. They simply buy Lotus sports cars in preference to other sports cars.

Mr Justice Peter Smith ruled that “Team Lotus” had to pay damages to “Group Lotus” for the breach of their licensing agreement. According to the judgment, it appears that the common practice of referring to “Team Lotus” as “Lotus”, in a second reference, and “Lotus Renault”, as Renault, may have to end. Finally, “Group Lotus” announced yesterday that they are seeking leave to appeal because they believe the judgment will cause confusion in the eyes of spectators and television viewers.

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