Oddfellow 22nd September 2016

Tony McStea

Bubendorf 22 September 2016

Well, a lot of effluent has flowed under the bridge since last I wrote, so here I am again, faithfully augmenting that flow.

So, what has happened? Well, the big news is Brexit and a universal head-scratching as to why the British are so keen to emulate lemmings. It appears to be the same phenomenon that gave rise to the Trump phenomenon, a feeling among ordinary folk that their supposed betters don’t give a fig about them, leading to the desire to strike back somehow, any how. Apparently, the day after the referendum, the most frequently-posed searches on Google UK were “What does leaving the EU mean?” and even “What is the EU?” There’s no doubt that you can solve your rising damp problem by burning down your house, but it does introduce other problems. The British can console themselves with the thought that the burnt smell is better than that old musty smell, even if they now need an umbrella when they sit in the lounge.

Of course, it has major repercussions in the IP world. It has meant that we have seen the near-arrival of the European Unitary Patent/Unified Patent Court, followed by its possible departure. (With the Netherlands’ recent ratification and Germany’s and Italy’s well on the way, the magic take-off number 13 will soon be reached, and all that would be missing is the UK). You’ve probably read a million commentaries as to What It All Means, but one thing’s for sure, it means the end of the road for Givaudan so far as the EUP/UPC is concerned. Givaudan may be the world’s biggest flavor and fragrance company, but it picks and chooses its EP validation countries with great care, typically CH, DE, FR, GB, NL, sometimes ES and/or IT. This is typical of many SMEs. CH was never going to be part of the EUP, so its renewal fees were always going to be on top of the EUP’s. Now the UK’s fees are also going to be extra. So, the total cost of EUP+CH+GB exceeds the cost of the current EP bundle system and we get less flexibility, so why fork out all that extra money for a whole bunch of countries that we don’t want?

Theoretically the UK could still ratify the EUP/UPC (it’s most of the way there), but I suspect that ratification comes ‘way down Westminster’s to-do list. Besides, why ratify an agreement for a body that you’ve just decided to leave? And if the UK doesn’t ratify, the Agreement will have to be renegotiated, because London is specifically written in as one of the Central Division’s courts, critically the one that handles chemistry and pharma. It could throw the whole thing open to renegotiation (and perhaps give A Certain State a chance to toss more spaniards in the works). This, plus the absence from the deal of Europe’s second-biggest economy could mean the end of the EUP/UPC idea for another 40 years, perhaps forever. Many of the big multi-office firms were gearing up to handle an increase in national applications (the only way to avoid the UPC, which will ultimately be responsible for all European Patents, unitary and otherwise). Perhaps they don’t need to bother.

One of the funny aspects is that, if the EUP/UPC does come about, UK patent attorneys will be able to represent clients before the UPC, because they can still represent before the EPO, but UK lawyers won’t. However, the multi-office firms have a way out. Because of the reciprocal rights conferred on UK lawyers in Ireland, the UK lawyers can use Ireland as a flag of convenience and operate out of one of their continental offices.

In a recent development, CIPA has solicited the opinion of a QC who is an expert in constitutional and EU law. This opinion says that it is still possible for the UK to participate in the UPC even after Brexit, and that the problems are political rather than legal. Personally, I would have thought that this fact would be the coup de grâce for the whole thing. And the opinion makes clear that (a) there are a lot of new hoops to jump through, and (b) it will depend on cooperation from the other UPC states.

My native Ireland is my personal big bugbear about the whole Brexit business. Brexit will put the UK in violation of the Good Friday Agreement that brought peace to Northern Ireland after years of conflict and unnecessary death and destruction. As both Ireland and the UK were EU members, the border between north and south became a mere administrative division, like the border between Victoria and NSW. Suddenly it may become a real border again, with border controls. More significantly perhaps, it’s a step away from the aspirations of the nationalist/republican tribe in the north. The war could start again. And of course it imposes a tremendous burden on Ireland, which, while desiring reunification, wants three-quarters of a million unwilling Unionists like it wants a hole in the head.

On the other side of the North Channel, the Jocks aren’t happy, they having voted solidly to stay in the EU, but are now being dragged out of it by perfidious Albion. And getting into the EU as an independent country is problematic because the Spanish, not wanting a bad example for the Catalans and the Basques, will certainly veto it. See? And all you in Oz have to worry about is hung parliaments! Perhaps all parliaments should be hung on a regular basis, pour encourager les autres, as Voltaire famously said.

It all reminds me of a lecture of a Patent Office guy seconded to PNG to help establish the then-new PNG trade marks system. He said that the appropriate pidgin word for much of what was going on there was “buggerup”. I can think of no better word to describe Brexit and its consequences.

On a personal level, the only person I know who welcomed Brexit was our elder daughter, simply because she was about to embark on a Masters in Science Communication at Imperial College London and her potential accommodation and university fees dropped by 10% the day after the vote. She wanted the pound to drop to parity with the Swiss franc (it dropped from 1.42 to 1.27), but I can’t imagine the Bank of England allowing that. The wee one of the family now flies seriously large aeroplanes for a living and loves it. She turns 31 in October but could still pass for much younger. We went to the pictures a few weeks ago. The cashier took one look at her and asked, “Student?” She assures me that passengers do not jump off the plane screaming, “Help! There’s a child loose in the cockpit!” Being asked for proof of age in all sorts of places bothers her; I’ve offered to take the problem off her hands any time she wants to pass it over.

The Givaudan department is in the throes of change. Givaudan has moved into the cosmetics business with the purchase of a number of small companies and we’re adjusting to this new world. In addition, there’s a new management structure that is seeking to improve innovation, including open innovation. Open innovation might be fine for the giants of this world, where inventors with ideas beat a path to their door in the hope of having their bright ideas commercialised, but Givaudan? It might be the biggest and most successful in the flavor and fragrance field, but it’s still small beer. The whole thing is just a concept at the moment, and we’ll have to see what the ramifications will be for the patent department. One thing seems certain; more work, which is fine, so far as Teemacs is concerned.

In Switzerland, when a new building is proposed, they put up tall sticks to show you where the new building will be, including an angled stick at the top to indicate the angle of the roof. When it comes to a multi-storey building, the “sticks” are substantial steel lattice structures tethered with steel guys and concrete blocks. These have just appeared in the Givaudan car park, towering over the 5-storey lab block. So, the long-proposed Big Move to Kemptthal is really on. It was supposed to have happened in 2009. The lab block, built in earlier times when nobody thought about environmental concerns, is hopelessly energy-inefficient and the expense of bringing it up to the latest Swiss safety standards would have been prohibitive. Some years ago, Givaudan acquired the Maggi site at Kemptthal from Nestlé, and it was decided that the new state-of-the-art lab would be there. However, the financial crash intervened and the idea was put off, and then off again. Finally, it was decided to do it and the winner of an architectural competition decided what it would be like. We got the word recently that the Admin block across the way will move to Kemptthal in summer 2017. Not sure when the lab (i.e. us) will follow, but late 2018 looks likely. There will then rise on the site new multi-storey edifices of unknown purpose. The flavour factory, warehouse and distribution centre on the other side of the Glatt (the site is bisected by this river) will remain, to stink out the neighbourhood for many happy years to come. And, if I’m spared, I’ll have a slightly longer trip to Givaudan.

Many of the chaps and chapesses of CIPA take themselves terribly seriously. “But seriously,” an old Sandoz colleague would say, “we Chartered Patent Agents are the best patent agents, aren’t we?” So, it must have been with horror that the old boys observed the rise of Andrea Brewster to the Presidency of CIPA. Andrea, one of the founding principals of West Country firm Greaves Brewster with Carol Greaves (an old pal from the days of ICI Plant Protection Jealott’s Hill, now Syngenta), has a nice, irreverent sense of humour, and she poked gentle fun at the whole business of being a Council Member and then Vice-President of CIPA in a column in the CIPA Journal called “The Not-so-secret Diary”. This was fine until she became President, and then apparently she met considerable resistance from the old guard, harrumph, harrumph, when she tried to continue it as President. So, to keep the peace, she stopped. Now that her Presidential term has concluded, she has resumed it as a blog. Check it out at:


I think you’ll like it.

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