Thursday, 5 July 2012

Red Buses and Tree Surgeons - Birss holds forth in the North

Funny how unrelated things connect in the mind.  An email earlier in the day from my good friend and former pupil Alex Khan who has recently been in Dubai prompted me to take a shufti at my article on the LES Arab Countries in NIPC Gulf. I clicked the link to LES Britain and Ireland and found that that
"HHJ Birss, will be visiting Manchester to share with us his experiences of presiding over the Patents County Court and to explain how the reformed court can, and has, made IP litigation affordable to SME's. HHJ Birss will also give an insight on how to get the most out of litigation in the Patents County Court and how he has kept the court operating to short time frames." (LES North West Group Meeting, 4 July 2012 18:30 to 22:00)
That was at 17:10 of 4 July when hardly anybody in Manchester could be expected to answer their phone but I caught Sara Baines on her mobile and secured myself a place.

After changing quickly out of my scruffy trackies into a cocktail dress and daubing on some makeup, I zoomed across the Pennines to the Manchester Mal where I was directed to what could well have been a film set for the Black Hole of Kolkata. There I found a horde of sweaty solicitors and panting patent agents in a darkened room gasping for a drink and a queue at the bar as long as the Manchester ship canal served by one desultory barman.

I never did make it to the bar but I encountered some old acquaintances - Susan Hall from Cobbetts, Liz Ward from Leeds, Anne Lacaze from Harrison IP, Damian Bailey from Kuits, the lady whom the late Barry Quest referred to as the "Damsel called Amsel" and, of course, His Honour Judge Birss QC himself.   I also met some new folk such as Belinda Isaac who had gamely trekked up from Oxford and Harrison Chang of Appleyards who sat next to me at dinner.

Eventually and almost imperceptibly the crush began to decant and a line of hotplates came into view.  There was evidence that some kind of starter had been served but all that I could find by the time I reached the head of the queue was a concoction that resembled chicken cacciatore and rice and a mysterious vegetarian option.   I grabbed the former which turned out to be not too bad.   Half way through the meal Anne Lacaze (who is French and must therefore know everything there is to know about food) emerged with some luscious looking salmon so I went where she had emerged and helped myself to a morsel.  Very nice it was too.  Pudding consisted of a selection of goodies but by the time I had made it to the counter there was nothing left but a scoop of fruit salad.   Showing the persistence of her profession, private eye Nicola Amsel sussed out some more and we each returned with a dish of brownies and cake which, again, was pretty good.

Then the judge got up to speak.   Disarmingly he told us that this was a "knock the judge back time".  We could ask him anything.  "Even about red buses and whether I know the difference between idea and expression" he said glaring at me.   "Don't knock it" I thought, "my case note on Temple Islandwhich has attracted 8,366 hits and counting, has got us both into Wikipedia.

He spoke about Section V of CPR Part 63 and the Part 63 Practice Direction and stressing that his case management powers were powers that judges already enjoyed and could be used in any other case by any other court.  The court was getting busy, he said, with nearly 300 cases since he had taken charge.  If the costs cap made it harder to charge for individual cases the increased volume of cases would more than compensate.

He discussed some of the cases that had come before him which would never have been litigated before such as Redwood Tree Services v Apsley  [2011] EWPCC 14 and Hoffman v DARE  [2012] EWPCC 2 (see "Damages for Infringement of Copyright in Photographs: Hoffmann v Drug Abuse Resistance" IP/IT Update 25 Jan 2012).  And, of course, Temple Island again with yet another glare in my direction.


As the judge had observed that nobody had actually asked him a question, I started the ball rolling by raising my fear that the new small claims jurisdiction would be used by photo libraries and porn film distributors against file sharers rather than SME (see "The New Small IP Claims Jurisdiction" IP/IT Update 25 March 2012). In reply, Judge Birss QC confirmed that the new track would launch in October 2012, that the rules would be the same as for the existing small claims track, that the Ministry of Justice would not be resourcing it and that they did not expect much to come if it.  If anyone did try to abuse it "well, we would have to do something about that wouldn't we".   I felt reassured.


Liz Ward asked about preliminary opinions to which the judge said that it seemed a good idea at the time.  He also talked about some of the orders that he had made such as "each party can file anything they like" and then "file  anything they like in reply".  A kaleidoscope approach to case management which obviously works well.  A solicitor from Clarke Wilmott who asked why the forms provided for 42 days to reply was invited to come down to London to change them all.  A patent agent from Withers who asked why the forms did not allow for "patent attorney litigator" was invited to do the same.  Altogether it was a very good discussion.

The formal part of the evening ended at 22:00 but we milled about for much longer.   Liz Ward, who is lovely, complimented me on my appearance which was the nicest thing anyone had said to me all week.  I circulated round the room greeting fellow old timers such as Moakesie, meeting new folk such as the hero of Media CAT who had left Ralli for Kuits and remembering absent friends such as Colin Hoffmann of Kuits, Robert Roper of Cobbetts and Bill Downie of Wilson Gunn M'Caw.

A very good evening indeed and if anyone wants to reminisce he or she can call me on 0161 850 0080 or use my contact form. He or she can also contact me through Facebook, Linkedin, twitter or Xing.