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| By James Gillray Public Domain |
This morning the government published the Kalifa Review of UK Fintech. As I learnt my intellectual property law while working on the legal issues of chip and pin cards and finding ways to protect banking brands before service marks could be registered for VISA International in the 1980s and have followed the sector ever since FinTech is an area of law in which I feel entitled to claim expertise.
The report is 108 pages long in a magazine-style format. It makes findings that I would expect such as Brexit, covid and competition being threats to the UK's competitive position as well as recommendations that FinTech company founders should be allowed to retain shares with enhanced voting rights after flotation that I found surprising.
One issue that I have found to be problematic in practice but which Kalifa did not mention at all was the exclusion of "a scheme, rule or method for performing a mental act, playing a game or doing business, or a program for a computer" as such from patentability by s.1 (2) (c) of the Patents Act 1977. Because of uncertainty as to whether a patent will be granted and if granted whether revocation proceedings. inventors ten to rely on trade secrecy which discourages collaboration and innovation.
Although the performance of the UK FinTech industry compared favourably to those of other European countries there were no direct comparisons with the performance of the sector in countries outside Europe. There were, however, oblique references such as the greater percentage of initial public offerings on exchanges in the USA which suggested that the US FinTech industry was significantly more successful than the UK's. One anecdotal reason for the greater success of the US industry is the absence of any equivalent to s.1 (2) in the US Patent Act. Even without that exclusion, the Americans see quite capable of rejecting applications for patents that are not recognizable as inventions (see Bilski v. Kappos, 561 U.S. 593 (2010)).
This is no mere griping. Many of the most exciting developments in the technology have come from small businesses which are often one-man bands. In the early days, founders rely heavily on investment from angels or private equity investors and they nearly always insist on some paperwork from the Intellectual Property Office before they open their cheque books.
Despite these observations and reservations, the Kalifa report is well worth reading. Anyone wishing to discuss it with me may call me on +44 (0)20 7404 5252 or send me a message through my contact form.
