Criminalizing Patent Infringement: Why it is a Bad Idea

Over the last few weeks an interesting debate has been conducted in IPRTalk on the anomalies and, in the view of some contributors, injustices of English patent law. Because of the moderator's bad manners (see "IPRTalk I give up" 13 Oct 2005) I had taken no further part in that discussion.

The debate was sparked by a post in chambers' other blog entitled "Porridge for Patent Inf ringers" on 22 Aug 2005 where I criticized proposals for a directive to criminalize all intellectual property infringements. Yesterday I came across a much more withering criticism by Prof. Ross Anderson of Cambridge University which I summarized in "Porridge for Patent Infringement? No 2". Essentially, the professor, who was speaking not just for himself but also for a think tank consisting of some pretty high-powered IP and constitutional law practitioners and scholars, argued that the proposal would be bad for the economy and bad for civil liberty.

My view is that he is right. Had IPRTalk not been so offensive I would have posted the note on the prof's evidence to the IPRTalk chatroom. Instead, I emailed it to Babic R Branko and John Mitchell who have up to now taken a different view. Branko's reaction was that the patent system as it stands, does not work for the creative, none of those people can make it work and they continue to be abused by infringement and that our society is losing vast sums to theft of IP. He also queried the prof's calculations relating to the Japanese study on UK loses (150 billion odd per annum), as compared to the gains.

My reply was as follows:

"I agree that the present system does not work. The solution is to make it work at least as well as it does in our major competitors, such as the Germany, Switzerland or the Netherlands in the EC where litigation costs are 20% what they are here, or in the USA where such costs are comparable but there is much less risk of paying the other side's costs and lawyers can accept instructions on a contingency fee.

My fear is that the directive - should it ever be adopted - will make matters even worse for British industry as a whole and for the SME and universities that I represent in particular. It would also hinder the development of pharmaceuticals, telecommunications, electronics and aerospace in countries like Brazil and India to the detriment not only of their industries but also of our consumers.

None of our major competitors outside Europe - the USA, Japan, China, Taiwan, South Korea, India or Brazil - have ever contemplated such legislation. Fortunately, if our governments are silly enough to adopt this measure there is always the WTO to put them right."

I think that it is possible to improve enforcement even within the present legal framework but it is essential for inventors, entrepreneurs and professionals to work together.