When Mr Patel complained to Unite about the postings, Unite took the forum offline and released a statement that the allegations against Mr Patel were unfounded; but Unite failed to respond to Mr Patel’s request for the identification of those responsible.

The BASSA website was subject to terms of use, which warned users that their personal data might be disclosed subject to data protection and privacy law.

Mr Patel successfully applied to the High Court for a “Norwich Pharmacal” order, which required Unite to provide the identities, addresses and Internet Protocol addresses of the users responsible. Instead, Unite provided an expert’s report to show that the information requested had in fact been deleted. Mr Patel and his solicitors pushed Unite to make further efforts to recover the information, without success. Mr Patel therefore sought a further Norwich Pharmacal order for an independent expert to be given access to Unite’s database on the grounds that the continued failure to provide the information must be, at best, as a result of incompetence or technical ignorance. Unite objected to a further order on data protection grounds.

The High Court ruled that Unite had not provided sufficient evidence that it had carried out the reasonable search required by the first Norwich Pharmacal order, and Unite had not shown that it had actually followed up the information provided by Mr Patel in order to carry out that search. The High Court noted that the additional order that Mr Patel was asking for was intrusive, but that it was proportionate and necessary to give the order so that Unite would comply with Mr Patel’s information request. The High Court considered the fact that the website terms of use warned users that Unite might disclose a user’s identity, subject to data protection and privacy law, and that, without the order, those responsible would not be identified. Whilst the order was given by the High Court, it was strictly limited to an expert appointed jointly by both parties and only to the disclosure of the information which would identify those responsible, or which explained why identification was not possible.

In 2011, Samsung pursued injunctions against competitors in the manufacture of mobile devices for infringement of its patents. This was despite Samsung having given a commitment to the European Telecommunications Standards Institute (ETSI) in 1998 to license standard essential patents relating to European mobile telephone standards to its competitors on fair, reasonable and non-discriminatory terms.  According to the EC, Samsung’s pursuit of an injunction may be an abuse of its dominant market position under Article 102 of the Treaty on the Functioning of the European Union. European standards are agreed specifications imposed by the EC in order to ensure interoperability of products, and standard patents should be licensed on fair, reasonable and non-discriminatory terms.

The EC has said that Samsung was obliged to license the use of 3G mobile and wireless technology patents to its competitors on fair, reasonable and non-discriminatory terms but that, in trying to enforce its rights over those patents against its competitors in court, it may have breached those obligations.

The Red Tape Challenge is a website-based project aimed at identifying – and scrapping – unnecessary regulations. Over the past few months, the Government has been asking interested parties to submit a response on the website, suggesting which regulations across various sectors should be scrapped, merged with other regulations, simplified, or improved. The focus is now on company law regulations. Further details on the Red Tape Challenge are here.

The Department for Business, Innovation and Skills (BIS) has invited comments on how it might reduce the administrative burden placed on UK businesses, whilst continuing to provide adequate protection for creditors, customers and suppliers. It highlights approximately 120 pieces of company legislation for review, under four headings: The Workings of Companies and Partnerships; Accounts and Returns; Business Names; and Disclosing Information about your Business. Comments can be made here.

BIS has also published a Discussion Paper, Providing a flexible framework which allows companies to compete and grow, which seeks views on how the company law framework can be improved in all areas. The Discussion Paper poses a number of questions in relation to the possible improvement in the following further areas of company law. These include:

1. Company names. BIS asks for views on whether the law on company names causes problems and delay;

2. Company filings. BIS asks whether it would be beneficial to be able to file an annual return and accounts together and how the system should change to best accommodate that;

3. Rights to inspect company registers. BIS asks for suggestions to improve, in practice, how registers may be inspected;

4. Penalties and enforcement. BIS asks whether the existing UK system of setting of fines and penalties is the most appropriate method for achieving compliance with the law; and

5. Employee share schemes. BIS asks whether existing company law as regards the design and operation of company share ownership schemes requires amendment or simplification.

The Red Tape Challenge is focusing on company law until 16 February 2012, but comments on UK regulation can be made after this date (although it is not clear to what extent the Government will take account of comments it receives after 16 February.) The Discussion Paper does not specify a date by which the Government must receive responses to the specific questions posed.

As Paul Gershlick, head of the Pharmaceuticals and Life Sciences Sector at Matthew Arnold & Baldwin LLP, told Intellectual Property Magazine (here –  http://www.ipworld.com/ipwo/doc/view.htm?id=279786&searchCode=H): ”

“The AstraZeneca job cuts are a huge blow for R&D in the UK’s skilled pharmaceutical industry, but not surprising given the challenges that the industry is facing.  It is not just the current large-scale ending of blockbuster patents without adequate replacement new drugs to fill the revenue gap.  There are many other factors at play which are changing the industry’s landscape. 

“There are opportunities, though.  It is to be hoped that the UK’s unique trading, geographic, skills and NHS advantages in an increasingly globalised world will help to secure those opportunities.  A recent Government initiative to make good use of anonymised NHS data should therefore be welcomed.  In AstraZeneca’s case, it is good to see their recent announcement of creating partnership-type initiatives with other businesses, universities, governments and charities.”

Matthew Arnold & Baldwin LLP’s Pharmaceutical and Life Sciences Sector Group has been at the forefront of debate about the patent cliff and the other effects that are shaping the future of the pharma industry, having recently hosted a talk with the Watford Chamber of Commerce to 100 guests. At the talk, Professor Brian D Smith spoke about “The Future of Pharma” based on the book he recently wrote with the same name.  It follows three years of extensive interviews with leading industry players, and a deep analysis of the history and trends in the industry, outside social and technological influences, economics, management science and evolution theory.

Paul says: “The patent cliff is the hot topic.  But the picture also needs to bear in mind: (a) price erosion even for products IN patent as governments seek better value; (b) increased costs of bringing drugs to market; (c) a lack of real advance in “new” drugs; (d) a more risk averse market; (e) a more demanding and sceptical end consumer; (f) a less uniform customer market; (g) drugs being more specialised rather than blockbusters; (h) the impact of rapidly changing technology; (i) the pressure of falling share prices on R&D pots; (j) the impact of the “shift to the east” on established companies and markets. 

“Times are changing in the pharma industry and businesses need to adapt to survive.  AstraZeneca’s job cuts are just the latest evidence of that.”

In a reminder of the dangers of an aggressive marketing campaigns aimed at the trade marks of competitors, the Court of Appeal has allowed part of Specsavers’ appeal against the High Court ruling. The Court of Appeal has ruled that:

-          Asda’s cross-appeal over the use of the strapline “be a real spec saver at Asda” should be rejected because it took unfair advantage (under Article 9(1)(c) of the Community Trade Marks Regulation) without due cause of the distinctive character and use of Specsavers’ registered Community Trade Marks (CTMs).

-          Specsavers’ appeal that the strapline “spec saving at Asda” infringed its CTM should be upheld, also on the basis that it took unfair advantage under Article 9(1)(c).

-          Specsavers’ appeal under Article 9(1)(b) that the straplines and bespectacled logo used by Asda infringed its word and logo marks should be dismissed. For the appeal under Article 9(1)(b) to have succeeded, Specsavers would have had to show that the average consumer would have been likely to have been confused. Here, the overall marks gave a different impression to the average consumer. There was a difference between what the judge described as “living dangerously” and one who intended to confuse customers. This was more of a case here of unfairly taking advantage of the reputation of the brand owner’s mark (for which Specsavers succeeded under Article 9(1)(c)) rather than customers being confused.

-          A further query about a wordless logo mark should be referred to the European Court of Justice for clarification.

This ruling should come as a relief to brand-owners, who argued that the High Court interpreted the definition of “unfair advantage” too restrictively in delivering its initial ruling. The ruling of the Court of Appeal emphasised the importance of the market position held by Specsavers due to its brand and the fact that Asda had intended to target that market position in its advertising campaign. A winning result for the brand, although not everything is seen totally clearly yet until we get the ruling back from the European Court of Justice.

The FSA states in the guidance that it is concerned at the number of unfair clauses it comes across in consumer contracts, such as rights to unilaterally alter or terminate a contract, rights to transfer obligations under a contract and contractual terms that are not in plain English. Whilst the FSA’s guidance is intended only for firms regulated by the FSA, it is a useful reminder to everyone involved in commerce as to what unfair terms are and how businesses can avoid imposing an unfair term on a consumer. The FSA can take action against businesses registered with it for unfair contractual terms, for example by obtaining a court injunction to prevent an unfair term being used any further by the business. The Office of Fair Trading (OFT) can also take action in the wider market place against offending practices.

The FSA sets out that, if a business can specify a valid reason within the contract itself as to why terms might be unilaterally altered, the right to unilaterally alter the contract is less likely to be considered unfair. A right of alteration is unlikely to be valid if it is, for example, in the business’s absolute discretion or to cover “unexpected” costs. In addition, stating that the contract can be altered “for any valid reason” will not be enough. If a business does alter a term that has a significant impact on the consumer’s obligations under a contract, such as varying charges payable by the consumer, the consumer should be informed of the change as soon as possible and given the chance to terminate the contract with immediate effect, without charge or other “practical” barriers put in place by the business to prevent the contract coming to an end.

Similarly, in relation to the transfer of obligations to third parties, the business should make sure that the guarantees provided to the consumer by the third party are the same as or better than those offered by the business itself – they key is stability and certainty for the consumer. The guidance states that consumers should be adequately informed of any transfer in good time for the consumer to fully understand the impact on the contractual relationship.

Simon Weinberg, a solicitor in the Commercial/IP/IT team at Matthew Arnold & Baldwin and assistant editor of Upload-Commercial/IP/IT, commented, “This guidance, whilst useful, does not necessarily tell us anything new. It is an important reminder for businesses of the requirement to have contractual terms that do not unfairly prejudice the consumer. It is not just the risk of an injunction to prevent the future use of those terms that should be taken into consideration – in addition, businesses should remember the bad press that can come with an injunction and the knock-on effect on consumer goodwill to an offending business. At a time when margins are tight and goodwill is essential to survival in the marketplace, getting contractual terms in order is an easy way to avoid the risk of an FSA or an OFT investigation, and all the reputation damage that can come with it.”

The Court of Appeal has rejected an appeal against the decision of the High Court, on the grounds that the High Court’s findings were not based on any error of principle or perversity in factual findings, leaving no scope for a fresh evaluation by the Court of Appeal.

However, the Court of Appeal allowed a cross-appeal against the finding that the UK trade mark for the number 32 had not been infringed. The Court of Appeal ruled that the High Court had incorrectly assumed that, where a separate reputation had not been established by use of the trade mark, there could be no infringement under section 10(2) of the Trade Marks Act 1994; rather, the number 32 was a significant part of the trade marks that the High Court had ruled had been infringed, such that there was no basis for saying that the trade mark for the number 32 had not been infringed as well.

It is also hoped that the licence procedure will be simplified, with the creation of “unlimited music events bundles” for a flat annual fee and the simplification of how background music charges are assessed.

In a press release, the EC outlined the main changes that will be made to the data protection regime in the EU::

-          There will be one set of rules across the EU, rather than each EU Member State having its own rules.

-          The scope of the people caught by the data protection law will be increased. The rules will apply to data controllers who are not established within the EU if the data processing relates to offers of goods or services to data subjects within the EU or a monitoring of EU data subjects’ behaviour. Clearly, this is intended to cover large online players from the US such as Google.

-          In addition, what counts as personal data is being widened. Data will be personal data if it is not just data held by the data controller that can identify the individual but also data held by a third party which, in combination with the data held by the data controller, could identify. This could catch rights holders that hand over Internet Protocol addresses to Internet service providers for enforcement of copyright infringement under the Digital Economy Act 2010.

-          There will no longer be an obligation for organisations to notify (or register) all data protection activities to data protection regulators (such as the Information Commissioner’s Office (ICO) in the UK), but only data breaches will need to be notified; however, that will need to take place within 24 hours of becoming aware of the breach. Organisations will need to have continuous monitoring and reporting systems in place at all times. Security breaches must also be notified to data subjects “without undue delay”.

-          In place of general notification obligations, organisations will have to maintain documentation and records showing their processing activities, and be subject to strict audit requirements and produce that to the authorities on demand.

-          Data controllers will also have to comply with training requirements.

-          People will be able to access and transfer their own data more easily. They will have a right to be given their data in a convenient portable format such as a disk or MP3 file. They will also have a right to be told how long their data will be kept for.

-          Data subjects will have a right to be told where the data controller got their data from.

-          There will be a “right to be forgotten” where people will be able to delete their data if there are no grounds for it being retained. This will put a huge burden on Internet businesses in particular, which will have to do what they can to ensure links to the data is deleted by others even after they have deleted it.

-          Member State regulators, such as the ICO, will be strengthened to allow them to better enforce the rules, with possible fines of up to £1m or 2% of a company’s global turnover. The amount of the fine will depend on the nature, gravity and duration of the breach; whether the breach was deliberate or negligent; previous history of breaches; what security measures had been put in place; and the level of co-operation with the authorities.

-          All organisations will have to appoint data protection officers unless they have fewer than 250 employees, in which case they will be exempt from this requirement.

-          Clearer rules for the transfer of data across borders within multi-national organisations will be introduced. In addition, national data protection authorities will need to approve bespoke agreed clauses as an alternative to the standard contractual clauses for transfers between an organisation in one EU country and another organisation outside of the EU.

-          Any consent from a data subject will have to be explicit rather than implied. Any written consent such as a tick-box will need to be distinguishable from other consents. This would mark a change from current online acceptance practice.

-          Data access policies will have to be not only fair but also transparent.

-          The law will move from data being permitted if “not excessive” to effectively minimising the data as it will only be legitimate if the purpose cannot be fulfilled by processing non-personal data.

-          Data processors (people who process data on behalf of data controllers and do not take any decisions in respect of the data) are currently not subject to the data protection requirements. They are only caught under contract law when data controllers (as they are required to do) enter into a written agreement with the data processor to contain certain safeguards. That will change. Under the new regime, data processors will have specific direct obligations to maintain security of data under the law.

-          Data controllers will generally not be able to charge data subjects for data subject access requests.

The proposals will be sent to the European Parliament and the Council of Ministers for discussion, and will take effect two years after they have eventually been adopted.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “This proposed law makes depressing reading. The Commission has trumpeted the ease of cost to business, but such a statement totally ignores all the other increases in regulation that this law would introduce. On balance, this will involve much more red tape for business to have to comply with. At a time when SMEs need a helping hand to grow and help to rescue the EU’s economy, this development is not going to be welcomed. Instead of considering SMEs’s legitimate interests, the Commission seems to have been too focused on protecting EU citizens against big US Internet businesses.

“The one plus side is that the new data protection law will be implemented in one consistent way across the whole EU; the major downside, though, is that it will involve much stricter obligations than businesses currently face, including tougher internal programmes and records and quick reports to the regulators and data subjects of data breaches. And there will now be much bigger fines for breaches. Let’s hope some of the provisions are softened before the law is passed.”

The article looks at both the Government’s recent announcement that it intends to compel the courts to ensure that each parent is able to see their children regularly (or even equally) following a separation or divorce and the Norgrove report which advised against a presumption of equality for parents.

So who is right?

The Information Tribunal has disagreed with the Information Commissioner’s ruling, and ruled that, if the email still existed, it was still “held” and therefore the University should disclose the email or issue a valid refusal notice.

Whilst this ruling relates to the Environmental Information Regulations, it is based on the same principles as disclosures under the Freedom of Information Act 2000 and is an interesting precedent.

Whilst this ruling relates to the Environmental Information Regulations, it is based on the same principles as disclosures under the Freedom of Information Act 2000 and is an interesting precedent.

The Department for Business, Innovation and Skills (BIS) will fund mediation training for employees from a group of 24 SMEs in each pilot area later this year. A network of trained mediators will be available to provide mediation to other organisations in their respective network.

An open tender to deliver the mediation training for prospective candidates has been published on the Contracts Finder website. The 24 SMEs in each area will be identified and selected later in 2012, once the mediation training contract has been awarded.

It is hoped that the pilot scheme will help to resolve workplace disputes before they escalate and need to be resolved at an employment tribunal.

Since coming to power, the Government has made it clear that it intends to create more opportunities for workplace disputes to be resolved outside the tribunals, and this pilot scheme is a further step in this direction. In November 2011, the Government published its official response to its Resolving Workplace Disputes consultation on reforming the employment tribunal system and announced that it intended to introduce a requirement for all potential tribunal claims to be lodged with Acas, so that parties have the opportunity to resolve their dispute through early conciliation. Click here for more details.

The pilots will run for 12 months and, if successful, the Government may introduce similar schemes in other parts of the country.

From 1 October 2012, and depending on the size of the PAYE scheme, employers will have to enrol eligible employees automatically into a qualifying workplace pension scheme or the National Employment Savings Trust (NEST). Employers will also have to make mandatory contributions.

Under the scheme, employers will be given a “staging date” from which they must auto-enrol eligible employees if they are using a defined-contribution scheme or NEST as their qualifying workplace pension scheme.

On 25 January 2012, the Government published a revised auto-enrolment staging timetable. Click here to see the new timetable. The publication of the new timetable follows the Government’s announcement in November 2011 that small businesses with fewer than 50 employees would begin auto-enrolment in May 2015, instead of April 2014. (Click here for further details.) Under the revised timetable, there will be no change to the staging dates of employers with 250 or more employees. All existing businesses will have enrolled their staff by April 2017, followed by all new employers by February 2018.

The Pensions Regulator has published some useful information on auto-enrolment on its website. Click here.

If you have any concerns about how auto-enrolment will affect your business, please contact me at michael.delaney@mablaw.com.

The Court of Appeal reversed the decision of the PCC on the grounds that the PCC had made two errors in light of the prior art:

1. The PCC had failed to identify the correct differences between the prior art and the claims made.
2. The PCC had failed to address whether the differences between the prior art and the claims made amounted to steps that would have been obvious to a person skilled in the art without any knowledge of the alleged invention, or whether those steps required a degree of invention.

The Government’s actions are intended to take effect later this year, and will implement the Consumer Rights Directive, which was approved by the European Union in October last year.

One high-profile change to the industry is the patent cliff (the sudden falling off of many patents that will stifle big pharma’s revenues that they can use to invest in R&D in new drugs).  But there are many more challenges and changes.  It is hard to over-state the social and technological changes in the environment, and like any evolution the result will be a different-looking industry to what we are faced with today.  Industry players will have to change to meet the challenges and opportunities arising out of the different environment, some new players may emerge and and some may cease to exist.  But ignoring the changes could lead to current industry players ending up the same way as the dinosaurs.

Professor Smith combined research, clear intelligence and thought with a very practical and down-to-earth analysis, coming from years of experience of working in the industry.

It was also a great event to run with the Watford Chamber of Commerce.  With its excellent transport links and commitment to moving to the future with the £1.5bn Health Campus within the town, Watford and its surrounding areas are blessed with a significant number of businesses in the pharma sector. 

Paul Gershlick, Head of Pharmaceuticals and Life Sciences at MAB, comments: “We were delighted to have someone of the calibre of Professor Smith speak. He is a recognised leader in his field.  There was a lively Q&A session afterwards. It was also great to see the amount of excellent networking that took place.  Many of our clients and contacts made new connections on the day and the feedback received from the 100 attendees was generally excellent. 

“Our motto in the Pharmaceuticals and Life Sciences Sector group at MAB is “Bringing excellence to life, together”.  From the success of yesterday’s event, we hope we have lived up to that.”

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “This shows an interesting strategy in its fight to stamp out bribery. Despite the bribes having taken place in another country, this still fell within the SFO’s remit. Innocent people should still do their due diligence on the foreign businesses in which they invest, and they should try to make sure that the business is conducted properly. Otherwise, they can face clawback for dividends paid out to them despite not being at fault or having any knowledge of the issue.”

How the plans will work in practice is unclear, especially given that the Government’s plans involve handing down more power for control of budgets locally, as the medical practitioner has been held out as having better expertise to decide what to spend the medical budget on.

Paul Gershlick, a Partner and Head of Pharmaceuticals and Life Sciences at Matthew Arnold & Baldwin LLP, comments: “Something that may soon alleviate the unfairness of the postcode lottery is the Patent Cliff – under which many blockbusting drugs are about to come off patent and be open to competition by much cheaper generic equivalents. Lipitor, for example, has already recently come off patent.”

In November 2011, the transport Minister Norman Baker launched the ‘Anywhere Working’ consortium, with its purpose being to enable employers to understand the benefits of flexible working. The consortium aims to help organisations achieve greater productivity, reduce employee stress and absenteeism, and reduce carbon emissions generated by business travel.

The Anywhere Working consortium is backed by big businesses (including Business in the Community, Microsoft, Nokia, Nuffield, Vodafone and Regus) and The Trades Union Congress.

On 16 January 2012, the consortium set up a new portal (click here) which contains a number of resources for employers and employees, including training, guidance, case studies and product offers. Organisations can also use the portal’s Savings Calculator to measure how much time, money and carbon energy they can save by working more flexibly.

The consortium is holding an ‘Anywhere Working Week’, beginning on 27 February 2012, and will provide additional guidance to organisations to help them learn more about flexible working and how it can benefit them and their workforce.

The EU Parental Leave Directive, which comes into force on 8 March 2012, increases the minimum parental leave provision from three to four months. Although member states should implement the Directive by 8 March 2012, member states can take an extra year for implementation if required.

BIS has said that it will utilise the additional year’s grace and will implement the changes in March 2013.

To find out what is changing in employment law in 2012, please click here.

Despite the exact photos being different, the judge ruled that New English Teas’ subsequent photo had infringed what he called the copyright in Temple Island’s “photographic work”. He described this as being the precise motif, the angle of shot, the light and shade, illumination and adaptation by digital manipulation after the event. It was more than being in the right place at the right time, as thought and effort had gone into creating the exact combination of features in a certain way which had made the photo look attractive. Whether it is copied in each case is a matter of fact, but in this case the judge decided that there was sufficient similarity. Although he said he struggled with the decision, he dismissed the argument that the ruling would give one person exclusivity over certain landmarks – it all came down to the way they were represented in a particular aesthetic way.

When the government announced this change in October 2011, it did not confirm whether it would affect existing employees (who may already have qualified for unfair dismissal rights) or just new joiners.

The Department for Business, Innovation and Skills (BIS) has now confirmed that the regulations that will implement the change will, subject to Parliamentary approval, state that the new two-year qualifying period will only apply to employees whose employment begins on or after 6 April 2012. Employees who are already in employment before that date will retain the current one-year qualifying period.

The Government estimates that the change will save businesses £6m per year, with a reduction of 2,000 unfair dismissal claims per year.

For further details of other employment law changes taking place in 2012, please click here.

The Government is asking for opinions on regulations that affect the private rented sector, social housing, construction, and the building regulations. Full details are here.

In the Government’s press release on the issue, Communities Minister Baroness Hanham said:

“For years builders, businesses, landlords and residents have had to navigate an increasingly complicated set of rules and regulations to do things by the book. Now we’re giving them the chance to tell us what they would like us to change so that building a new home or property is a smoother ride.”

Interested parties have four more weeks to put forward their views and this can be done on the Red tape challenge website. This website has full details of the challenge and you can also read the opinions of those who have already commented (and respond to those comments if you so wish.)

Many of these volunteers will be employees, so, in order to minimise the impact their absence may have on workplace productivity, Acas has advised employers to start talking to them now so suitable arrangements can be made.

To help employers, Acas has issued new guidance on employers’ legal obligations to employees who wish to fulfil their volunteering commitments. This provides advice on the following key questions which will inevitably arise during discussions between an employer and employee:

1. Three of my staff have got volunteer positions at the Olympics. I can only let one go. What’s the best way of handling this?

2. I have a member of staff who has got a volunteer place at the Olympics. Do they need to use their own holiday?

3. I have a member of staff who has got a volunteer place at the Olympics. Am I expected to pay for them while they volunteer?

To read this guidance (and answers to the above questions), please click here.

One opportunity has been seized by big Pharma company, Bristol-Myers Squibb, through its recent acquisition of Inhibitex, a biopharmaceutical company, at a cost of US$2.5 billion. Inhibitex is currently developing a promising new hepatitis C drug, which though currently only in Phase II development has shown great potential. With over 150 million people worldwide suffering from hepatitis C and over 75% of liver disease being attributed to the illness, producing an effective drug to combat or manage the disease is foremost in the mind of the Pharma industry today; and Bristol-Myers Squibb is not alone. Only last November, Gilead Sciences, Inc agreed to pay US$11 billion for Pharmasset, Inc, another company refocusing on the development of further hepatitis C treatments and with Merck, Vertex and Johnson & Johnson also rumoured to be targeting the hepatitis C market, we can see that big Pharma are on the hunt.

Laura Mole, a member of MAB’s Pharmaceutical and Life Sciences Sector team says, “This latest acquisition by Bristol-Myers Squibb is living proof that the industry is changing and big Pharma are almost panic buying in order to build and diversify their portfolios. This is shown by the acquisition of not only market ready products but also drugs still in the development stages. It is clear that with the Patent Cliff threatening, and with Bristol-Myers Squibb itself to fall victim with its soon-to-expire patent protection on blockbuster drug Plavix, any opportunity to grow and protect will be taken. Small/mid sized Pharma had better be ready for the bidding war to come.”

In AstraZeneca’s case, it has established the Science and Technology Integration Office, which will develop collaborative projects with other businesses, universities, governments and charities. AstraZeneca is continuing with its quest to find “the next big thing” with innovation but through cheaper means – effectively building its links with outside providers of research and development.  Meanwhile, some others in the industry such as GSK, the UK’s biggest pharma company, are looking to mitigate against the dangers by diversifying their operations.

AstraZeneca has already signed a deal last month with the Medical Research Council, under which academics can investigate the use of 22 of AstraZeneca’s clinical compounds in treating diseases. AstraZeneca has also recently entered into an agreement with IMS Health, to use IMS Health’s data to assess how well its drugs respond to patients, so as to be able to prove their value-for-money and usefulness to the customers.

The loss of patents comes against a backdrop of attacks on the prices paid by public health systems for drugs in the face of the debt crisis. With harder regulatory burdens to get any new drugs to pass clinical trials and fewer blockbuster possibilities, pharma companies are affected whichever way you turn.

Paul Gershlick, a Partner and Head of Pharmaceuticals and Life Sciences at Matthew Arnold & Baldwin LLP, predicts: “The combined effects of the patent cliff and other factors are going to force the pharma industry into change.  Things cannot continue to go on the way they are currently doing. It is of great concern that this survey shows that most people think that the industry is not adapting fast enough to the external factors affecting it. If the industry does not change quicker, this will have catastrophic effects on the companies that invest in developing and producing the new drugs that improve people’s health.”

Paul Gershlick, Head of Pharmaceuticals and Life Sciences at Partner at Matthew Arnold & Baldwin LLP and a data protection law specialist, comments: “We need to understand the facts as the ICO sees them and then make a judgement, but such a large fine seems harsh given that the hospital appear to have been the victim and no data actually got into the public domain through the hospital’s action with the police when the items appeared on eBay. This action signals the tough intentions of the UK’s data protection regulator in dealing with data security breaches involving people’s health data.”

The look and feel of an App is created not just by the content, but also by the functionality and the functioning of the App in the hands of the public. 

Pop ups and words, direct connect to stream video links, cross-referencing and other mechanisms all add to the overall effect and impact of the App, which, so far as the public is concerned, is what really matters.

A recent case in which the Advocate General has given his opinion in the same vein as the English Courts will both make protection of functionality more difficult and in some ways the position easier for App designers.

Essentially the Advocate General in the case of SAS v WPL has said that the language and functionalities of a computer programmer are not eligible for copyright protection.  This follows on from previous English law cases such as Nova v Mazooma.

So how can you protect the look and feel of an App?  Clearly the content will be subject to copyright and possibly, if the design is very similar, there may be a degree of passing off.  The fact is, with functionality, if what you are doing is not patentable, there may be very little you can do to protect your wizzy idea. You can try and make sure that the person for who you design the App doesn’t get any rights to whatever it is you have done, but the App designers are still going to have to be quite careful to make sure that nothing they want to replicate in other Apps by way of functionality is accidentally handed over to a single client, as otherwise things are difficult. 

In fact this problem extends across into all kinds of spheres. The problem is that these days by contacting the right website somewhere in Asia, you can get a source code written for practically any functionality if you can identify exactly what is the functionality you want.  Very often identifying that functionality and the way in which things work must be analysed is the true value of a company.

Let’s give an example. Let us suppose that we have a company that has made a breakthrough in, say, a voiceover internet protocol using mobiles. It’s just spent 4 years and a lot of shareholders’ money developing a pass through to where it knows how everything works, has to work and works in the way in which the public wants. Some senior members of staff then rip it off by taking the analysis of functionality and asking somebody else to write a source code to replicate that. The answer in that case is not breach of the law of copyright nor infringement of patent,  but the good old fashioned law of confidence based on the employment relationships involved.

And that brings me to how App designers and producers and those dealing in discussing with them need to protect ideas. Although probably the best we can do to help you is to ensure that what you do talk about is subject to the law of confidence and the confidentiality provisions in your contacts and standard form agreements rely on the protection to the registered credentials.

In the meantime, with so many companies’ assets really held in the form of knowledge and know-how, the legal and business communities should really be looking at how existing structures or new structures can be adapted to give greater protection in the digital environment.

The Commission has for some time been looking at trying to encourage further uses for the concept of e-money, so as to improve the development of inter alia the internet based economy.  Its answers to questions, however, (there was another one back on the 25 November) have an arcane ring to them and the one that prompted this note is positively opaque. I wouldn’t say that the answers to these questions are actually making it any easier for people to get into the business.

Today’s question and answer relate to NFC stickers. This is not, as some might imagine, some form of promotional advice to do with American football; it is to do with Near Field Communication and is basically RFID combined with authorisation procedures relating to e-money and its use.

The situation set up by the question is a very basic one – a payer with a device that has an NFC sticker on it goes into a shop and the shop reads the sticker, contacts the person with whom the shopper has made a deposit, accesses the necessary credit balance, authorises as if it were a payment to itself and hands over the goods. Payment comes from a central “fund” rather than a single payer’s designated account, but in a sense mimics the way in which electronic money issuances have been going on in Europe for some considerable time. That is to say, in the early days electronic money was issued usually by authorising a central fund owned by the issuer to make a payment following a payment in by the user. 

The answer as to whether or not this constitutes the issue of electronic money given by the Commission is simply to say: read the rules and come to your own conclusions. This is because the rules are designed to be flexible and not stifle technological development, whilst at the same time leaving a degree of latitude for interpretation of the rules at a country by country level. 

The second part of the question was when would this kind of transaction not be caught by the Electronic Money Issuance Rules. Here the Commission, in a roundabout way, gives a more straightforward answer. 

It basically quotes the well known exceptions to the need for e-money issuance in relation to, for example, communications operators to do what looks like e-money issuance for provision of services by themselves. Using powers of deduction, however, the answer to the second part of the question is you can deduce that the Commission thinks that it is probably more likely than not the exceptions have to apply to exempt the service and, therefore, the transaction is prima facie caught by the Rules.  A problem for those developing e-services, perhaps using newish technology, is the ease with which one can be caught by the e-money regime and then left struggling in the UK to use the small e-money issuer “get out of gaol card”. 

The fact is, however, that the European authorities are very nervous about the public being ripped off or scanned by what looks like e-money issuance schemes, and at the moment that fear drives them to be relatively conservative. 

What that should drive is the innovation in this area by those who don’t otherwise need further authorisation (such as the banks and those who are in charge and truly in charge of the technology, i.e. the mobile network operators.) Both these institutions probably have other things on their mind at the moment, but it does seem that they are being given a substantial opportunity, particularly in the case of banks who can continue to develop further services so they can remain the leading financial payment mechanism providers.

What I doubt will happen is that they will be left alone forever and they are frankly going to have to start demonstrating innovations in this area or risk the Commission making it easier for others to become e-money service operators in this area.

Statistics have revealed that depression affects approximately one in six people (and is more common in women) and it is therefore vital that employers take the necessary action to assist employees who are suffering from stress and depression, and avoid inadvertently breaking the law.

To read the full article, please click here. You may need to register to read the article in full.

If you would like to discuss the issue of depression in the workplace and what your legal rights and/or obligations are, please contact me at rebecca.fox@mablaw.com.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: “This case shows the need for organisations to have clear IT and Internet usage policies. Organisations should also make sure that those policies have been updated since the increased use of business and personal social networking sites.”

The ICO sets out a plan of 5 Es: eduate, empower, engage, enable and enforce. It is not purely about enforcement as it wants to educate and help too, but that is clearly the end result if there are problems. It wants to target its limited resources to the areas in which it perceives are the greatest need to act to protect individuals. It will consider the volume, nature and sensitivity of the data and the number of people affected. Ultimately, it will consider what is in the public interest.

The ICO wants to ensure that its activities are conducted transparently, proportionately, consistently, targeted and in an accountable way. It also wants to see a high proportion of the public aware of their privacy rights and how to enforce them.

The Information Rights Strategy can be found here: http://www.ico.gov.uk/about_us/plans_and_priorities/information_rights_strategy.aspx.

The High Court had initially ruled that WPL had copied one of SAS’s programming manuals. However, in respect of the other allegations, the Court was of the view that there was no copyright infringement, based on previous English court cases of easyJet v Navitaire and Nova v Mazooma. However, it decided to make a reference to the European Court of Justice for a definitive ruling on the European Union’s position on the extent of copyright protection in software programming language, programming interfaces and the functionality within the software.

The European Court of Justice’s advisor has now given his opinion. Advocate General Bot has followed the High Court’s ruling. He said that the language and functionalities of a computer program were not eligible for copyright protection. They amounted to ideas without concrete expression. Functionality was the set of possibilities offered by a computer system. It is the service that the user expects from it. For example, in a program for airline tickets, this included finding the flight, checking availability, booking a seat, registering details, paying and editing. The list of possible functionalities was finite. However, the means of achieving the concrete expression of those functionalities is eligible for protection.

We will now await several months for the decision of the European Court of Justice. The Advocate General’s opinion is not binding, but is usually followed by the court.

The note provides an overview of what Build Now, Pay Later is, the advantages it brings to housebuilders, and the terms which government departments will ask developers to bid on when they are disposing of their land.

The Build Now, Pay Later scheme is intended to make it easier for developers to manage their development cash flow, as they do not have to pay upfront for the government-owned land. Housebuilders will pay for the land after they have started work on the new homes, meaning that they can start building immediately.

The scheme has been launched in conjunction with the Government’s decision to release public sector land for housebuilding, with the aim of building 100,000 new homes by 2015. The need for new homes is urgent, as recent figures have revealed that housebuilding is now at its lowest levels since the 1920s (click here for more details.)

In its note, the Government has admitted that Build Now, Pay Later is not appropriate for all sites, and will tend to be more beneficial on larger more complicated sites which will require significant capital investment to unlock.

There are two Build Now, Pay Later models: Phased Payments and Risk Sharing.

The Phased Payments model is where the land value or base price is apportioned across a number of phases with specified dates for when payments will be made. The housebuilder bears less initial risk, as payments are linked to completed or sold phases. The timing of payments and percentage of land value paid on completion of each phase can be varied to suit the risk characteristics of the site.

The Risk Sharing model allows housebuilders to share the risk and reward from the movement in house prices and the subsequent revenue generated. However, the risk of fluctuations in development costs will be borne by the housebuilder.

Increasing housebuilding is one of the Government’s key objectives in its Growth Review, and it is also hoped that the Build Now, Pay Later will create and sustain thousands of jobs in the construction sector.

The guidance advocates a cookie audit to identify the cookies used, distinguishing between session, persistent and third party cookies, look at how privacy-intrusive each cookie is and how clear information is provided to users.

The ICO has also given further guidance on obtaining consent. It says that website operators should have minimal use of cookies until users have consented. Implied consent is not a viable option at the moment, but as users become more aware of cookies, that could be used. It also advocates contractual obligations between third parties and website owners governing the collection of consent for the third party cookies.

The ICO’s report and the guidance can be found here:  http://www.ico.gov.uk/news/latest_news/2011/must-try-harder-on-cookies-compliance-says-ico-13122011.aspx.

Viagogo – the website – had objected to the hand over, saying that to do so would be disproportionate and infringe its users’ data protection rights. The Court of Appeal disagreed. The rights had to be balanced and the RFU was entitled to know about who was infringing its contract terms. The Court of Appeal therefore ruled that it was right to grant the RFU a “Norwich Pharmacal Order” against Viagogo to reveal the data. Whether or not the England rugby body used that data to take action against the sellers or the people who had provided the tickets to the sellers was irrelevant to the ruling.

Paul Gershlick, a Partner and Head of Pharmaceuticals and Life Sciences at Matthew Arnold & Baldwin LLP, comments: “According to evidence from the BioIndustry Association, the UK share of clinical trials has fallen from 6% to 2% in the last decade. The UK also went from the fourth largest location for clinical trials in 2006 to twelfth just two years later. The UK has a long history of being a global leader in developing new pharmaceutical products. A lot of jobs and expertise have been based here as a result. Anything the Government can do to make drug discovery conditions better so as to reverse the declining trend and make the UK a more enticing place to discover new drugs has to be a good thing.”

The ruling is an important reminder that exit provisions in agreements are not something to worry about later; rather, they are just as important as those provisions of an agreement which are intended to have immediate effect. If exit provisions have not been agreed, the party receiving the services is at serious risk of being without those services for a period of time until another provider is found, with potentially catastrophic impacts on its business. Similarly, the service provider may suddenly be without a revenue stream without any form of transition period to balance the impact.

The ruling also shows the importance of not just having exit provisions within an agreement, but to make sure that those provisions set out the requirement for an exit plan which clearly defines what happens to the services on termination – in an IT contract, for example, this should include the specific hardware and software that is needed, the level of support and maintenance that will be provided, how long the transition services will be provided for and how much those transition services will cost.

When a person dies “intestate” (i.e. dies without leaving a valid Will that disposes of the deceased’s estate), the distribution of that person’s assets (or “estate”) among surviving family members is governed by the intestacy rules. However, the intestacy rules, which date back to 1925, have not been comprehensively reviewed for more than 20 years and the Inheritance (Provision for Family and Dependants) Act 1975 has not been vigorously reviewed since it was enacted, although it does now cover cohabitants, civil partners and same-sex cohabitants.

The Law Commission’s recommendations are included in two draft Bills: The draft Inheritance and Trustees’ Powers Bill and the draft Inheritance (Cohabitants) Bill.

The draft Inheritance and Trustees’ Powers Bill includes provisions that would do the following:  

1. Ensure that the assets of a married couple or a couple in a civil partnership will pass on intestacy to the surviving spouse in all cases where there are no children or other descendants;

2. Amend the legal rules which currently disadvantage unmarried fathers when a child dies intestate;

3. Simplify the sharing of assets on intestacy where the deceased person was survived by a spouse and children or other descendants;

4. Protect children, who lose a parent, from the risk of losing an inheritance from that parent if they are adopted after the parent’s death;

5. Remove obstacles to family provision claims by dependants of the deceased and anyone treated by the deceased as a child of his or her family outside the context of a marriage or civil partnership;

6. Permit a claim for family provision in certain circumstances where the deceased died “domiciled” outside of England and Wales, but left property and family members or dependants in the UK; and

7. Give all trustees more flexible statutory powers over the trust’s income and capital (subject to any express provisions in the trust instrument.)

The draft Inheritance (Cohabitants) Bill gives certain unmarried partners who have lived together for five years the right to inherit on each other’s death in the event that one of them dies intestate. In instances where the couple have a child together, this entitlement to inherit would accrue after just two years’ cohabitation, provided that the child was living with the couple when the deceased died. An application to the Court under the Inheritance (Provision for Family and Dependants) Act 1975 would therefore not be required.

This change, if implemented, would give unmarried couples similar rights to married couples in instances when one person dies without leaving a Will. With an estimated 2.3m unmarried couples living together (a figure expected to rise to 3.8m by 2033), the recommendations reflect the fact that cohabitation is much more prevalent in the UK than it was 25 years ago.

However, there is of course one easy solution to the problems of intestacy: make a Will and ensure that it is regularly updated.

The HBF’s New Housing Pipeline Q3 2011 report also said that planning permission was granted for only 29,059 homes across England in the same period – a 50 per cent drop in the average number of home approvals in 2006 and 2007.

The report went on to state that the number of homes being built is now lower than at any time since the 1920s and called on the Government to continue with its proposed planning reforms in order to address the current housing crisis.

However, the Government’s planning reforms may be facing a serious challenge. In its review of the draft National Planning Policy Framework (NAPF) this week, the parliamentary Communities and Local Government Committee said that the Government’s proposals to reform the planning system should be re-written to give greater protection to the environment and to ensure that developers build on brownfield land and within town centres. The Committee also said that an adequate definition of “sustainable development” was missing from the proposals and put forward its own alternative definition. Full details of the Committee’s report are here.

The Committee claimed that the default answer of “yes” in the planning reforms, which gives the go-ahead to development unless the adverse effects “significantly and demonstrably” outweigh the benefits, should be removed as it could lead to poorly planned, unsustainable development.

The Government has said that it will “carefully consider” the new definition of sustainable development offered by the Committee, so we shall see what happens.

The Government is due to implement its final version of the NAPF in early 2012.

Obtaining an all-encompassing antiviral drug is the holy grail.  There are anti-biotics to kill with bacterial infections, but they do not work on viruses.  Existing antivirals are used for specific viruses to try to contain them – so there is an antiviral for HIV but that does not work on other viruses; and there is another antiviral that has had success in stopping flu but not other viruses.

Todd Rider, a research scientist at the Massachusetts Institute of Technology claims that Draco has passed certain test on human tissue and mice.  However, some people want to see more proof as Rider’s work needs to be thoroughly evaluated by his peers.

The Court agreed with Hodgson’s claim. Although a lot in the script was independent of Hodgson’s book, there was striking similarities, such as the football chant used at the beginning and about 50% of the dramatic events were similar. Taken as a whole, the similarities were too close to be explained in any other way, and as a matter of quality and not just quantity too much of the book had been copied, directly or indirectly. The Court ruled that there had been infringement.

Paul Gershlick, a Partner and Head of the Pharmaceutical and Life Sciences sector at Matthew Arnold & Baldwin LLP, says, “It is absolutely crucial to protect patient data. However, privacy groups again appear to be pursuing a single concern agenda – ie privacy. What about improving patient care and improving or saving lives? Instead of criticising the Government’s healthcare data strategy for being pursued too fast, people worried about privacy should instead be working with the Government to make sure the privacy safeguards are in place so that the health benefits can be achieved as soon as possible. The longer any delays take, the fewer number of people who will benefit from any reforms. When people’s lives are at stake, there should be no time to lose.”