Please find attached the link to a short lecture given by Lord Neuberger on Intellectual property themes related to English and European law.

Although the article would require a read of the cases referred to, some of the interesting comments include:

1. Paragraphs 4 to 10 is a very neat summary of basic elements of the UK Constitution and its relationship to Europe

2. Paragraphs 11 to 13 a toe in the water of the law of price-fixing and anti-competitive behaviour

3. Paragraphs 14 to 28 (Patents and Europe) sets out the policy aims and requirement of the UK Courts to absorb, follow and be enriched by the judicial reasoning of both the Enlarged Board of Appeal and the decisions of the Court of Justice of the European Union (the CJEU). Grounds for optimism in that regard are set out in paragraph 22 and reference to the case of Schutz v Werit [2013] 2 All ER 177, (the subject of a previous blog) in which the UK Supreme Court was greatly assisted by relatively parallel litigation involving the same litigating parties in the German Appeal Court (the Bundesgerichtshof) – Lord Neuberger cleverly concluding that this is a process of judicial decision-making, ‘a common law approach to life’ rather than following European civilian approaches with ‘masses of provisions’. An interesting way of looking at the jurisprudence.

4. Paragraphs 29 to 40: Trade Marks and Europe: I have never understood the judicial comment about the irrelevance of the Trade Marks Act 1994 as opposed to going straight to the Directive (Directive 89/104, now Regulation 2009/207) – but in light of the unequivocal explanation in paragraph 29 will now take the tip and do likewise. This section includes some useful explanation of the function of trade marks and the problems of interpreting decisions returning on reference from the CJEU, where it was unclear following reference (in cases such as L’Oreal v Bellure [2010] Bus LR 303, as to precisely ‘who has won?’ (see paragraphs 30 and 31).

5. Paragraphs 38 and 39: an entertaining and ‘scientific’ if not too serious discussion of the merits and demerits of single judgments from the CJEU (which is compulsory) and a common law system where multiple judgments (and the possibility of dissenting judgment) is possible.

The attached article seems to be as much intended to provoke discussion (in my view) about three huge subjects in intellectual property, and merits a close read, including some of the cases such as Norris v United States of America [2008] 1 AC 920 – time permitting.

the Link to the lecture:

Click to access speech-140401.pdf