You wouldn't use a wood to get out of a bunker: seeking and using IP advice

A Set of Clubs

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Jane Lambert

On 23 Feb 2016 the Intellectual Property Office ("IPO") updated its guidance Seeking intellectual property advice. In its passage on Invention Promotion Companies it warns:

"Some unreliable firms promise to evaluate your invention for a fee of a few hundred pounds. They then tell you that your invention has great market potential. They may offer to promote your invention to manufacturers if you pay a fee of several thousand pounds up front. Once you have paid up, they may do little or nothing for you."

"If an invention promotion firm approaches you", it urges, "take great care." Very good advice which us repeated frequently by patent offices, consumer protection organizations, inventors' clubs and IP professionals the world over.

Yet despite those warnings more and more people fall for the promises of such companies and find themselves seriously out of pocket as a result. "Why is that?" one might ask. Part of the answer is that innovation companies offer a simple solution to the question how do I get my new product or business to market without anyone else nicking my idea.

Unfortunately, protecting a new  idea long enough for it to make a reasonable return for its creators is not usually a straightforward matter because the law favours competition and freedom to carry on business. The world's very first intellectual property legislation, The Statute of Monopolies 1623, was in fact a statute to abolish monopolies and restraints of trade. Parliament recognized, however, that it is expensive and risky to develop new products and processes and that businesses need some respite from unbridled competition as an incentive to invest in new inventions.

For that reason there is no one stop intellectual property shop. You need all the professionals mentioned in the IPO's guidance to get the right legal protection for your business idea. 

You need a patent attorney to apply on your behalf for a British or European patent for your invention in the United Kingdom and he or she should also be able to help you get one for other countries. If you have a trade name or logo that needs protecting a trade mark attorney can make an application to the IPO or European Intellectual Property Office for British or European Union trade mark.  Patent and trade mark attorneys should also be able to help you get registered and registered Community designs from the IPO or EUIPO. 

If you need a licence from a third party to make a product, use a process or carry on business under a franchise a specialist solicitor or barrister can help you negotiate one. Such a solicitor or barrister can also draw up terms upon which others can use your invention, design or other intellectual asset.  If you believe that your intellectual property right has been infringed or if you are accused of infringing someone else's rights he or she should help you resolve your dispute satisfactorily.

Each of those professionals has his or her own special skills and training for a particular job. In that way thet are rather like the woods and irons in your golf bag. There was a time when you had to instruct a solicitor or patent or trade mark attorney in order to consult a barrister but you can now instruct many of them directly under the Public Access scheme. 

Instructing a public access barrister is often a good way of finding other professionals that you may need such as patent or trade mark attorneys, solicitors or foreign lawyers. Through our work we get to know a lot of those professionals and what they can do. Although there is now plenty of overlap between our work and the work of other professionals we have a professional duty to refer a client to a solicitor. patent or trade mark attorney or other intermediary if that is in the client's best interests. As our core work is advice on difficult points of law, drafting complex legal instruments and oral and written advocacy we tend to refer patent and trade mark prosecution to patent and trade mark attorneys and litigation to solicitors. Our relationship with those other professionals is in that regard rather like the relationship that subsists between a consultant surgeon or physician and general medical practitioner. 

I am often asked whether there is a duplication of effort or additional expense in instructing different professionals. Sometimes that happens where for example a litigator attempts to do work that is better left to an advocate but it should not. Indeed, it should actually save time and costs.

If you want to discuss this article or IP advice in general call me on 020 7404 5252 during office hours or send me a message through my contact form.

IP and Fashion Law

Jane Lambert at the Blackfriars, Novotel

(c) Gita Mistry 2015 All rights reserved

Last Thursday I conducted a day long seminar on Intellectual Property and the Fashion Industry at the Blackfriars Road Novotel. The above photographs shows me interacting with the audience.  I had 20 attendees drawn from law firms big and small, patent and trade mark agencies and in-house legal departments.

The course covered:

• Basic concepts and terminology
• Advising the designer
• Advising the manufacturer
• Advising the retailer
• Dispute resolution
• Counterfeiting and piracy
• Developing an IP strategy, and
• Applying what had been learned to everyday practice.

Rather than read from notes and slides I taught the course by setting typical problems such as

"The day after a royal baby makes his or her first public appearance you want to sell a similar set of baby clothes. How would you set about doing that without being sued?"

and

"What provisions would you place in a contract with a supplier from Bangladesh?"

I got that idea from Ross Burrows of Burrows Law because that is how he taught the public access top-up and litigation courses which I took last year. He built on participants' knowledge and experience which he encouraged us to share.  I decided to do the same  next time I taught a CPD training course.

Preparing such courses requires a lot more work on the part of the trainer but it aids comprehension and retention.  The overwhelming response of the London group was very positive according to the feedback forms.

If you missed the course in London you can catch me in Leeds on 7 Oct 2015.  Quite apart from what you may learn from me on the course you can check out the exciting young designers at Lambert's Yard or the Textile Centre of Excellence in Huddersfield. Leeds is one of the major fashion centres outside London as you can see from this video of the recent Leodis Forum. You can book on-line or call MBL on 0161 793 0984. 

Oppositions in the IPO's Trade Marks Registry

Checkmate

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Jane Lambert

On Monday I discussed the different types of hearings that can take place in the Intellectual Property Office when there is an objection to an application to register a trade mark  (see If the examiner says "no" - ex parte hearings in the Trade Marks Registry 10 Aug 2015 London IP and Tech Law). If the examiner (the official who considers an application) objects to it the applicant can discuss it with a senior official known as a hearing officer. This is called an ex parte proceeding because only the applicant is involved. If a third party objects to an application a hearing officer will adjudicate the dispute between the person who opposes the application ("the opponent") and the applicant. Those proceedings are called  inter partes because they are between different parties.

How Opposition Proceedings arise

Those who might object to an application usually first learn of it when it is published in the Trade Marks Journal. Many trade mark proprietors instruct their attorneys to arrange for someone to monitor the Journal for applications for marks that are similar to their own registrations. Such monitoring is known as a "watch service". An objector may make written observations to the examiner as to whether a trade mark should be registered under s.38 (3) of the Trade Marks Act 1994 without becoming a party to inter partes proceedings with all the risk and expense that entails.  Before The Trade Marks (Relative Grounds) Order 2007 came into force, the examiner could take account of earlier registrations or other rights when deciding whether to grant an application. Now he or she can only bring the observations to the applicant's attention. If the applicant insists on proceeding the objector must oppose the application or stand aside.

Grounds of Objection

There are two sets of grounds upon which an opponent can object to a trade mark application:

• absolute grounds such as those that I discussed in Monday's article; and
• relative grounds: that is to say, the opponent has registered, or applied to register, a the same or similar trade mark for the same or similar goods or services in the UK, EU or a group of countries that includes the UK or EU under the Madrid Protocol or the opponent can prevent the use of the applicant's mark by bringing an action for passing off or infringement of copyright, registered design or some other intellectual property right.

Relative grounds of refusal are set out in s.5 of the Trade Marks Act 1993.

Pre-Action Negotiations

Although proceedings in the IPO are generally less expensive than proceedings in the courts the Registrar expects parties to try to settle their differences amicably.  Before taking proceedings, the opponent should explain his or her objection to the applicant in a letter before claim enclosing any relevant documentation relied upon and invite the applicant to withdraw his or her trade mark application or restrict the goods or services for which registration is sought. If the applicant does not want to do that he or she should explain why with reasons and evidence in a timely letter of response.  Once their differences have been identified, the parties or their professional representatives may try to resolve them through direct negotiation or mediation. Both the IPO and the WIPO offer specialist mediation services as do our chambers (see IP Mediation 22 May 2015 4-5 IP). Such negotiations or mediation have to proceed with alacrity as there is usually a 2 month time limit from publication in the Journal for an opposition to be lodged though that can be extended to 3 months if the opponent files a Notice of threatened opposition in Form TM7A.

Starting Proceedings

If the parties cannot resolve their differences amicably the opponent commences proceedings by lodgung a Notice of opposition and statement of grounds in Form TM7 and paying the appropriate fee.  The statement of grounds are the equivalent of particulars of claim in civil proceedings. At one time a statement of grounds resembled particulars of claim and had to be settled by the opponent's counsel or attorneys. Nowadays they are reduced to a questionnaire. The amount of the fee will depend on the ground upon which the opponent opposes the application. If it is on the ground that he or she has registered the same or similar mark for the same or similar goods under s.5 (1) of (2) the fee is only £100. If he or she opposes the application on some other ground the cost of the opposition increases to £200. If the Notice of opposition and statement of grounds are in order the IPO sends them to the applicant in accordance with rule 17 (8) of the Trade Marks Rules 2008.

Responding to the Application

The applicant usually has up to 2 months to respond to the opposition. If he or she wishes to do so, the applicant must file a Notice of defence and counterstatement in Form TM8. This is like a defence in civil proceedings. Its purpose is to identify the issues that are in dispute. Like the Notice of opposition and statement of grounds the Notice of defence and counterstatement is reduced to a questionnaire. No fee is charged for filing Form TM8.

Preliminary Indication

Once Form TM7 or TM8 have been filed the case will be referred to a hearing officer. If the opposition is based on an earlier registration or application to register under s.5 (1) or (2) of the Act the hearing officer may give a preliminary indication as to whether the application should proceed or be refused under s. 5 (1) or (2). The opponent or, as the case may be, applicant then has up to one month to decide whether to persevere with the opposition or application. If that party decides to do so, he or she must file a Form TM53 and serve it on the other party or parties. If he or she fails to do that in time, the opposition or, as the case may be, application will be deemed to have been withdrawn.

Evidence

If no preliminary indication is given or if a party files a Form TM53 the hearing officer will direct the parties to file the evidence upon which they rely. Usually that takes the form of written statements from each of the witnesses that a party wishes to call but it may also be in the form of a statutory declaration or affidavit. Witness statements set out the witness's testimony in numbered paragraphs and is verified by a statement of truth. If the other side wishes to cross examine that witness he or she verifies it with or without modification on affirmation or oath. The witness statement then stands as that witness's evidence in chief. If the witness wishes to refer to a document it is usual to exhibit a copy of the document to the witness statement.

Further Negotiations or Mediation

Negotiations to settle the opposition often resume or begin once the statements of case have been exchanged and the evidence has been filed and served. There is less time pressure at this stage and the parties can request extra time for negotiations or mediation.

Electing a Hearing

If the parties are unable to resolve their dispute either side may request a hearing or indicate that he or she is content for the hearing officer to decide the issues on the documents only. The incentive to dispense with a hearing is that the costs that the unsuccessful party will be ordered to pay under Tribunal Practice Notice 2/2000 are very much less than the costs that would be awarded after a full hearing. If neither party asks for a hearing the parties will be allowed to file written arguments in support of their case.

Skeleton Arguments

Shortly before the hearing the parties or their professional representatives are expected to exchange summaries of the arguments that they intend to make and references to the statutes, cases and text book passages upon which they rely and lodge copies of those documents with the hearing officer. Those summaries are known as "skeleton arguments". A party is usually allowed some latitude in amplifying, clarifying or otherwise modifying his or her skeleton once he or she is on his or her feet but he or she will not be allowed to take the other side by surprise.

Conduct of the Hearing

Hearings take place at the IPO's offices in Newport and London. Unless a witness has to be cross-examined the hearing officer may conduct the proceedings by video link or telephone. It is not uncommon for the parties or their representatives to be in London and the hearing officer to sit in Newport. The video transmission link between London and Newport is very high quality and tantamount to being in the same room.

The hearing is opened by the opponent who makes sure that the relevant materials are before the hearing officer and the other side. He or she identifies the issues to be decided, outlines his or her case and how he or she intends to prove it and the legal submissions upon which he or she relies. The opponent then calls his or her witnesses if any. After the witness has identified his or her evidence in chief he or she is cross-examined by the other side. The opponent may re-examine the witness on any point raised in cross-examination that needs to be explained or clarified.

Once the opponent has presented his or her case the applicant calls his or her witnesses or makes his or her submissions in reply. The opponent may cross-examine the applicant's witnesses on their statements and the applicant may re-examine them.

After the applicant has presented his or her submissions the opponent may reply to them.

The hearing officer concludes the hearing by indicating that he will deliver a written decision in due course. It usually follows a couple of months after the hearing.

Costs

The hearing officer has power to order the unsuccessful party to contribute to the successful party's costs. The principles on which he or she makes such an award are set out in TPN 2/2000 (which I mentioned above) and TPN 4/2007. Unless a party has conducted his or her case so unreasonably or behaved so badly that the other side has incurred costs unnecessarily the hearing officer will award costs on a fixed scale. They are never more than a fraction of the actual costs incurred. A few hundred pounds for a decision on the documents and a few thousand if there has been a contested hearing.

Appeal

As in ex parte proceedings the unsuccessful party has a right of appeal either to the Appointed Person or the court. The advantage of appealing to the Appointed Person is that the costs are limited to those awarded by the hearing officer. The disadvantage is that his or her decision cannot be appealed except, perhaps, by judicial review. The costs of an unsuccessful appeal to the Chancery Division in England or Northern Ireland (Court of Session in Scotland) are higher but there is always the chance to appealing to the Court of Appeal or even the Supreme Court. Permission is not required to appeal either to the Appointed Person or court.

Representation

Parties may represent themselves before hearing officers or they may instruct patent or trade mark attorneys, solicitor advocates or counsel. As trade mark law is complex and technical it is often to a party's advantage to instruct an attorney or specialist counsel or advocate. It is now possible and often advantageous for applicants or opponents to instruct a barrister to settle Forms TM7 or TM8, advise on evidence, settle witness statements or represent them before a hearing officer in a procedural or full hearing without also instructing an attorney or solicitor and many choose to do so.  It is also possible that your attorney or solicitor may wish to instruct me or some other counsel on such matters. If you want to consult me on any of those matters call me during office hours on 020 7404 5252 or use my contact form.

Further Reading

If you wish to act for yourself you should familiarize yourself with the Trade Marks Act 1994, the Trade Marks Rules 2008 and the Tribunal Practice Notices. I mentioned the IPO's very helpful guidance on Trade mark disputes resolution: hearings on Monday and you can get further guidance in the last chapter of the Trade Marks Manual. Finally, you should never forget that the 1994 Act implements an EU directive which has been interpreted and applied by the Court of Justice of the European Union and General Court and the courts of each of the EU member states. You will be able to access the directive and other legislation and some of that case law through the website of OHIM (Office for Harmonization in the Internal Market), the Community trade marks and designs registry.

If the examiner says "no" - ex parte hearings in the Trade Marks Registry

Jane Lambert

According to the Intellectual Property Office's Facts and Figures for 2012 and 2013, the IPO received 41,524 trade mark applications in 2013 and granted 35,256 in that period. Clearly, most trade mark applications go through without any problem but there are some that do not either because the examiner (the IPO official who considers trade mark applications) objects to an application or a third party decides to oppose it.

Hearing 

In either case, there may be a hearing before an official representing the Head of the IPO (referred to as "the Registrar" rather than "the Comptroller" in trade mark matters) who is known as a "hearing officer". A hearing to consider an examiner's objection is known as an ex parte hearing because only the applicant for the trade mark attends the hearing.  A hearing to resolve an opposition is an example of an inter partes hearing because both the trade mark applicant and the opponent take part. The rest of this article will be on ex parte hearings.

Why might an examiner say "no"

Any sign may be registered as a trade mark so long as it can be represented graphically and can distinguish goods or services of one undertaking from those of other undertakings. Graphical representation means some form of writing whether in letters, numerals or both. Most signs that can be recognized by the senses can be represented graphically but there is one great exception. Nobody has yet found a way of expressing in writing a smell. In addition, there are some signs that are not registrable for various other reasons. For instance, a sign may be devoid of any distinctive character or it may consist of or contain a protected national or international emblem such as the royal coat of arms or Olympic rings. The grounds upon which an examiner may object to an application are sometimes called "absolute grounds of refusal" and these are set out in sections 3 and 4 of the Trade Marks Act 1994.

What happens if the examiner objects

If it appears to the examiner that the requirements for registration are not met, he or she has to inform the applicant and give him or her an opportunity, within such period as the examiner may specify, to make representations or to amend the application. If the applicant is represented by a trade mark attorney or other professional intermediary there is usually an exchange of correspondence which often results in a solution that meets the examiner's concern. If those concerns are not met within the prescribed time, the examiner has to refuse the application under s.37 (4).

The Hearing

If the application is refused the applicant's only recourse is to request a hearing before a hearing officer. Although this is a judicial proceeding and governed by law it takes the form of a referral to a senior official. Often the only persons present are the applicant or his representative and the hearing officer.  Such hearings can take place at the IPO's premises in Newport, by video conference or even by telephone. Applicants can also ask for a decision to be made on the basis of written representations. An applicant may represent him or herself or instruct an attorney to appear on his or her behalf. If a difficult point of law is involved the applicant may want to instruct a barrister.

Appeal

If the applicant fails to persuade the hearing officer he or she may appeal to the High Court or a lawyer appointed by the Lord Chancellor under s.77 (1) of the Trade Marks Act 1994 known as the "Appointed Person". If the applicant appeals to the court the Registrar is entitled to appear by counsel in which case the applicant risks paying the Registrar's costs if the appeal is unsuccessful.

Further Information

The IPO has published some very helpful guidance in Trade mark disputes resolution: hearings 20 May 2014.

Should anyone wish to discuss this article or trade mark law in general, he or she should call me during office hours on 020 7404 5252 or send complete my contact form.

London Technology Week, 15-21 June 2015

Jane Lambert

London Technology Week is a week long festival of seminars, workshops, screenings, parties, meetings and other events to celebrate London's pre-eminence as a centre of technology.  The video that I have embedded above shows what happened last year. The events page shows what will happen this year. You will find some very big names such as Goldman Sachs, Bloomberg, London & Partners, Catapult Future Cities, InnovateUK and NESTA.

Intellectual property, data protection and other areas of technology law will be discussed and some of the largest law firms and patent agencies will be there. I shall be attending the festival and speaking on how to avoid and resolve IP and technology law disputes.  I shall publish more details later.

If anyone wants to discuss this article, call me on 020 7404 5252 during normal office hours or get in touch through my contact form.

Representation in the IPEC Small Claims Track

Royal Courts of Justice

Photo Wikipedia

Jane Lambert

In July 2014 the HM Courts and Tribunal Service published its Guide to the Intellectual Property Enterprise Court Small Claims Track  I have written a lot of articles and given a lot of presentations about that court and its predecessor, the Patents County Court, over the last two years and you will find links to those articles at Patents County Court - the New Small Claims Track Rules 20 Sept 2012.

In this article I will discuss the anomaly that while anyone in the world can appear at a hearing on behalf of a party in the small claims track in most causes of action only a solicitor or other authorized litigator or the party itself can file claim forms or statements of case in that track.  That restriction excludes patent and trade mark attorneys who are not authorized to conduct litigation by the Intellectual Property Regulation Board (see Rights to conduct Litigation and Advocacy). I will also consider whether the right of lay representatives to appear as advocates before the Patents County Court continues to apply to proceedings before the Intellectual Property Enterprise Court ("IPEC") small claims track.

S.12 (1) of the Legal Services Act 2007 includes "the exercise of a right of audience" and "the conduct of litigation" in the list of reserved legal activities.  S.13 (2) of the same Act restricts reserved legal activities to persons who are authorized in relation to the relevant activity ("authorized persons") and persons who are exempted in relation to that activity ("exempt persons").  It is an offence under s.14 (1) for anyone other than an authorized person or an exempt person to carry on a reserved legal activity.

Paragraph 3 (1) of Schedule 2 to the Act defines a "right if audience" as "the right to appear before and address a court, including the right to call and examine witnesses".  In other words the sort of work that barristers do.  Paragraph 4 (1) defines "the “conduct of litigation” as

"(a) the issuing of proceedings before any court in England and Wales,
(b) the commencement, prosecution and defence of such proceedings, and
(c) the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions)."

These are activities traditionally conducted by solicitors.  Activities in relation to litigation such as drafting statements of case and conducting correspondence are not mentioned in the Schedule.

Schedule 3 to the 2007 Act provides a set of rules to determine whether a person is an exempt person in relation to a reserved legal activity.   Paragraph 1 (3) (b) provides that a person is an exempt person if "he has a right of audience before that court in relation to those proceedings granted by or under any enactment."  Paragraph 2 (3) (b) makes similar provision in relation to the conduct of litigation.

S.11 (1) of the Courts and Legal Services Act 1990 provides:

"The Lord Chancellor may, with the concurrence of the Lord Chief Justice, by order provide that there shall be no restriction on the persons who may exercise rights of audience, or rights to conduct litigation, in relation to proceedings in a county court of such a kind as may be specified in the order."

The only order under that section that I have been able to find is  The Lay Representatives (Rights of Audience) Order 1999 SI 1999 No. 1225. Art 3 (1) of the Order provides:

"Subject to paragraph (2), any person may exercise rights of audience in proceedings dealt with as a small claim in accordance with rules of court."

However, paragraph (2) of the article states that:

"A lay representative may not exercise any right of audience:–
(a) where his client does not attend the hearing;
(b) at any stage after judgment; or
(c) on any appeal brought against any decision made by the district judge in the proceedings."

This is reflected by paragraph 3.2 (1) of the Practice Direction 27 - Small Claims Track:

"A party may present his own case at a hearing or a lawyer or lay representative may present it for him."

"Lawyer" is defined by paragraph 3.1 (1) (a) as "a barrister, a solicitor or a legal executive employed by a solicitor" but not a patent or trade mark attorney and a "lay representative" which would include such an attorney as "any other person".

While the Patents County Court existed there can be no doubt that lay representatives could rely on The Lay Representatives (Rights of Audience) Order 1999 to appear as advocates before the small claims track. However, it is uncertain that they can still do so before the small claims track of IPEC because s.11 of the Courts and Legal Services Act 1990 which was the statute under which the 1999 Order was made applies only to proceedings in the county courts and  IPEC is now part of the Chancery Division (see Jane Lambert "What does the Intellectual Property Enterprise Court mean for Litigants in the North West?" 12 Oct 2013 IP North West). Paragraph 63.27 (4) provides that Part 27 (small claims track) shall apply to claims allocated to the small claims track in the Intellectual Property Enterprise Court with certain modifications none of which addresses paragraph 3.2 of the Part 27 Practice Direction.

Although the District Judge can always hear a lay representative in a specific case she does not appear to be obliged to do. Further, there appears to be no right for anyone other than a solicitor or other authorized litigator (which can nowadays include certain counsel and patent and trade mark attorneys) to file, prosecute or defend such proceedings. Should anyone wish to discuss this article or IP Litigation in general he or she should call me on 020 7404 5252 during normal office hours or message me through my contact form.

Festival of Business

Chiswell Street Brewery

Photo Wikipedia

Yesterday I attended the Daily Telegraph Festival of Business at The Brewery in Chiswell Street. It was the third time I had attended the event. In 2011 and 2012 the event was held at G-MEX in Manchester which is my home town. Last year the event moved to London and I followed it down to the capital.

The format was the same as in previous years. There were four keynote speakers and two breakout sessions. Each delegate was issued with a tablet computer for the day which had to be returned at the end. These took the place of bags and bumf which I for one like to read on the way back home. They also replaced a note pad which would have been fine except that my tablet had a German keyboard which is slightly different from the QWERTY layout making it impossible to type quickly. The tablet was also the only way the audience could communicate with the chair in plenary sessions which made it very difficult to ask questions from the floor.

As I had a meeting earlier in the day I missed the first two keynote speeches and the first breakout session. According to the agenda, Nigel Wilson, chief executive of the Legal and General Group, spoke about The Changing Shape of the UK, and Sir Charlie Mayfield of the John Lewis Partnership discussed The Changing Workplace.  I was able to read Dr Wilson's slides on the tablet but not not Sir Charlie's.

I did, however, attend a wide ranging and fascinating discussion between Sir Martin Sorrell and Roger Bootle which covered the economy, the EU and a list of what the speakers called "black swans" or potentially destabilizing events such as ISIS and the recent pro-democracy demonstrations in Hong Kong. Both seemed to think that the economic outlook for the UK was rosy despite the sluggish performance of much of the rest of Europe, Japan and many other countries. It was a view shared incidentally by most of the audience in a snap poll. I'm not so sure that that they are right.  It is the view of a London audience and London has done OK over the last few years. I doubt if it would have been shared to the same extent in other parts of the country. Secondly, the strength of the recovery in the UK seems to be driven by short term factors like house prices and restocking. I don't see how the recovery can possibly be sustained if Europe is stagnant and China is slowing down. Moreover British productivity has declined n relation to our competitors. I found the optimism in the auditorium overdone almost to the point of complacency,

One of the factors  that is bound to put a break on investment in this country in my humble opinion is uncertainty over our continued membership of the EU. The disruption that would be caused were we to leave would be far reaching. Take intellectual property for example. British businesses have enjoyed the benefits of uniform trade mark protection enforceable throughout the 28 member states in the British courts for 20 years and design registration for well over 15 and the European Patent Office will soon be able to grant unitary patents for nearly all the EU member states. All of that and very much more would be lost on a British exist. Sir Martin was aware of that disruption and warned of the risk to inward investment.  Roger Bootle was much more equivocal. If we could get rid of anthems and the notion of ever closer union then it might be worth staying, he argued, but if (as is probable) we can't he would campaign for us to leave.

Although I was with Sir Martin on Europe he made one remark that I could not understand at all. He said that indemnities against intellectual property infringement were a major menace to businesses because it put them at the mercy of patent trolls.  "Patent trolls" is a nickname for "non-practising entities" (that is to say businesses that hold patents but do not work them). They are a problem in the USA because patent specifications do not have to be published before grant and there is no possibility of recovering costs from an unsuccessful claimant but not here. In this country an NPE would probably be required to give security for costs and in any case it is possible to insure against patent infringement claims in any country.

Sir Martin classed these indemnities with late payment of bills which seemed to be an increasing problem. A poll was taken as to whether late payment was a problem for delegates in the room.  On that point there was overwhelming agreement.

The second keynote speech that I attended was on technology.  Tim Steiner of Ocado led the discussion and he was accompanied on the stage by Phil Jones, Managing Director, Brother UK, Kathryn Parsons, Founder and Co-CEO, Decoded and Chris Poad, Director, Seller Services at Amazon UK. Referring to the Global Innovation Index 2014, Mr Jones said that the UK was the second most innovative nation in the world. He omitted to say that the criteria for the index is very broad and contains factors such as "institutions" and "economic sustainability" that are only remotely connected with developing new technology or that the UK ranks below not just the USA, China and Japan in the number of European patent applications or even countries of similar size such as Germany, France and South Korea but also the Netherlands with one third of our population or Switzerland with one eighth. I challenged that assertion with an intervention through my tablet but the chair chose to ignore it.

Another issue that I challenged was on the participation of women in computing. Kathryn Parsons was congratulated for being the only woman on the panel. It was inferred that she was somehow facilitating female participation in IT. In fact there was far greater female participation in the early days of computing when women programmed in object code for LEO and Dame Steve Shirley established F International which was overwhelmingly female. Again. I tried to make that point through my tablet but was ignored by the moderator.

The one breakout session that I managed to attend was Financing Growth. I had originally intended to go to the Google Clinic which I had enjoyed in Manchester but I bumped into futurologist Tom Cheeswright who had given a very good talk at Start Smart in Salford the previous Friday. He was on his way to the funding seminar so I tagged along with him.  There were presentations from two business leaders who had raised funding one through some kind of bond which was offered to the company's and James Meekings of the Funding Circle. The chap who had raised money by his bond issue seemed to criticize the regulatory structure in this country which prompted an intervention from me that the provisions regulating public offerings in the Companies Act 2006 and the Stock Exchange rules were there fir a reason and that there was a risk that uncontrolled public offerings might turn into a bubble like tulips and stocks in the South Sea Company 

Overall I enjoyed the day though perhaps not as much as in previous years.  When the event was in Manchester it was held at G-MEX which is a converted mainline railway terminus with plenty of space.  The Brewery is much smaller.  Some would say it was more intimate. Others would call it cramped.  The only way to reach The Porter Tun, the main auditorium, was by means of a single staircase or a single lift and both were congested at times. Last year the main speaker was the Chancellor of the Exchequer and while there was nothing wrong with this year's keynote speakers they did not carry quite the same cachet. Another way in which the event could be improved would be by losing the tablets. They were an amusing novelty 3 years ago but now they get in the way of communication.

If anyone wants to read another account of yesterday's events and watch some videos there is a Festival of Business page on the Daily Telegraph website.