Scotsman legal review: Intellectual property

Changes to patent system and possession of confidential material keep law firms busy

Wearable tech such as the Apple Watch is making life interesting for IP litigators. Picture: John Devlin
Wearable tech such as the Apple Watch is making life interesting for IP litigators. Picture: John Devlin

Trade secrets and the unitary patent have been the key talking points this year for intellectual property (IP) specialists in Scotland. Lawyers in the field reported an increase in cases involving confidential information being taken, either wittingly or unwittingly, from former employers, while the awaited introduction of the unitary patent signals a massive change to the existing system.

“Something we have seen a lot of in the last year or so in Scotland, and also UK wide, is employees moving around, changing employers, and quite a few instances of the employee either taking or being alleged to have taken confidential information from the old employer,” explains Jim Cormack, partner in IP at Pinsent Masons and solicitor advocate.

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“Data is so pervasive these days. It can be quite easy to leave with some of your old employer’s confidential information.

“We have had quite a few instances of usually acting for the employer who has been left but occasionally for the employee.

“That kind of IP work can also tie in with things like copyright infringement, for example if they have kept material that is copyright to the old employer.”

Gill Grassie, partner in Brodies’ IP team, agrees on this year’s two top themes.

“In terms of the Scottish economy we see trade secrets coming in a lot, for example in oil and gas disputes,” she says.

According to Grassie, the unitary patent system is coming on faster than predicted: “It’s just a massive change in the existing European patent system.

“I think a lot of companies are relatively unaware of it. For all patentees, large and small, they should be renewing their options before the Unitary Patent Court (UPC) comes into force, which could be as early as the start of 2017.

“In particular they need to decide whether they will opt out. If positive action is not taken to opt out, the default will be that their European patents will be opted into the new system and all of the consequences of that will apply.

“Patentees need to address the implications for them for the new UPC and take this seriously as the new system is the future in terms of EU-wide patent protection.

“As such, it would be advisable for them to renew all licence and other agreements relating to their patent portfolio to take account of the UPC.”

A number of businesses choose to protect their brands by way of registered trademarks.

Both Grassie and Cormack have noticed an increase in trademark work this year, which is viewed as a positive sign.

“Based on what we are seeing at the moment, I think there’s going to be more use of the Court of Session for patent and trade secret litigation,” says Grassie.

“We are also busy in terms of trademark cases, so again I see perhaps more use of the Court of Session in those cases.”

Cormack adds: “We have seen probably a positive sign in the sense that trading is up, people are jostling for position, potentially trying to sail as close as they can to their competitors or other people’s marks.

“People are trying to protect brand advantage by keeping people out from using a mark that is similar to them.”

In most cases, it seems, businesses are chancing their luck by coming as close as they can to copying someone else’s trademark without infringing it, if it is registered.

The third key area of activity for IP specialists is the constantly evolving technology industry. Last year’s big investment was cloud computing while this year’s equivalent is tipped to be big data (data sets so large or complex that traditional data processing applications are inadequate).

“There’s quite a lot of development in the technology sector so we are seeing quite a lot about wearable technology [such as the Apple Watch] and 3D printing,” says Joanna Boag-Thomson, partner at Shepherd & Wedderburn and specialist in intellectual property law.

“We are seeing a lot of patents going in around those. That’s going to make it interesting for IP litigators.

“Cloud computing is still a massive investment and opportunity and big data, I think, is a big opportunity for people. I think people are a bit afraid of big data, they see it as a threat, but I see it as an opportunity.

“The other thing that our clients are starting to look at is data protection elements. We are seeing a lot of focus by clients on technology solution for security, particularly where personal data is being held.”

A prime example of this kind of work is the Ashley Madison data leak which hit the headlines in August this year. Customer data stolen from Ashley Madison, a dating website for married people who want an affair, was published online. The notorious hack resulted in calls for companies to look very seriously at their data holdings.

Last year the Glasgow Commonwealth Games and the Ryder Cup attracted sponsorship opportunities and while 2015 has not seen such large scale events, Boag-Thomson says Scots are definitely upping their game when it comes to landing major competitions.

“There’s always sponsorship opportunities,” she says. “I think it’s quite interesting seeing the public sector trying to create them.”

Boag-Thomson cites VisitScotland’s Year of Food and Drink campaign, which has focused on promoting Scotland’s regional produce.

As we come towards the end the Year of Food and Drink, it is evident that protecting geographical indications, for example the Angus origins of the Arbroath smokie, is another area creating work for IP specialists.

“People are seeing a real value in protecting provenance of food and drink and particularly because there’s such a premium value of Scottish produce,” says Boag-Thomson.

• The Scotsman’s annual review of the legal world looks at some of the most active areas of legal practice in Scotland. Informed by comprehensive data published by Chambers and Partners and Legal 500, the articles give exclusive insight into the work of the more than 11,000 practicing solicitors and 463 practicing advocates.