Scotland’s attempt to transform itself into a high-value knowledge economy will fail unless the Scottish Executive commits to creating a more progressive justice system for intellectual property (IP).
This wake-up call has been issued by David Moreland, partner in Glasgow-based patent attorneys Marks & Clerk and Scottish chairman of the Chartered Institute of Patent Attorneys (CIPA).
Moreland warned that the failure of the Scottish Executive, led by first minister Jack McConnell and deputy first minister Nicol Stephen, to modernise the IP justice system North of the border is going to leave Scottish firms vulnerable, at a time when the global markets are becoming increasingly competitive.
Moreland said: “If we want to create a knowledge-based economy, with the high-value jobs here and the manufacturing being done elsewhere, then… we need an IP justice system to go along with that.”
“Unfortunately, it seems the Scottish Executive is not fully committed to creating one.”
In England, the government started permitting people other than barristers to represent clients in IP cases in the mid 1990s, breaking the closed shop. A patents county court was established in the early 1990s. These reforms made it possible for lower-value IP disputes to be settled comparatively swiftly and cheaply.
In Scotland, however, there has been no change. Sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) 1990 abolished the ban on non-lawyers applying for rights of audience in Scottish courtrooms. However, the sections were never acted upon, for reasons that remain unclear.
As a result, clients in IP disputes still have no choice of representation — they must use solicitors or advocates — and have no choice of forum. Cases must heard in the Court of Session in Edinburgh.
Moreland says the result is that only the very important cases come it to court, as it can take two to three years before a case is heard, cases themselves last two to three weeks and the costs are likely to exceed £100,000.
Moreland said: “This means that a great many smaller cases go down South. That is bad for the Scottish economy. It does not fit with the Scottish Executive’s desire to build a knowledge-based economy, nor does it fit with their desire for greater access to justice.”
Moreland does not believe that the changes proposed under the
Executive’s Legal Profession and Legal Aid (Scotland) Bill go far enough, as they only touch on the matter of representation. “It is one step instead of three. It allows a choice of representation but no more. There will be no new court and no specialist patent judge or judges. It’s still going to take a long time,” he said.
“The bill is primarily concerned with Legal Aid and the clauses on intellectual property representation in IP cases appears to have been stuck on almost as an afterthought.”
Moreland added: “Our other concern is if they are planning to enact that legislation in the spring, which is very close to the Holyrood elections in May. There’s a danger the whole thing could be put back, and if that does happen we’re unlikely to see anything for three or four years.”
“The Scottish Executive likes to claim this is the best small country in the world. We have the opportunity to be the best small country in the world from the IP perspective. But the Executive is failing to grasp this opportunity.”
This article was published in The Herald on 6 November 2006