The patent bar and beyond: In conversation with Sir Robin Jacob

Gordon Harris: Good day to you wherever in the world you may be watching or listening to this. My name is Gordon Harris from the Gowling WLG International Leadership Team and this is the latest in our series of interviews with leading figures in the IP World. It is hard to imagine anyone to whom the expression leading figure applies more than my guest today, over the last 40 years in law he has been one of the best known and most influential figures in IP World as a leading Barrister in the field, Judge, Lord Justice of Appeal and more recently as Professor of IP Law at one of the World's leading universities, University College London. I am delighted to welcome the right honourable Professor Sir Robin Jacob. Good morning Robin, how are you?

Sir Robin Jacob: Good morning.

Gordon: So what are you up to these days? What is keeping you busy at UCL?

Robin: Well a lot, I am only a part time Professor at UCL so I am doing some arbitration, mediation and big new trade from just the last five years of mock trials of big cases, expert witness in foreign proceedings, international advisory work. That is what I am doing outside UCL. Usually at UCL I do not actually take a formal series of classes I go to other people's classes sometimes and join in and ask difficult questions and tell war stories and jokes.

Gordon: Perfect!

Robin: I thought the academics that run the course would not like it but it turns out they rather enjoy it. It breaks up the two hour session, or it used to be when it was all live, now we are going to do 20 minutes, they said people's attention span is not any longer than that. I do not believe it but that is what they say.

Gordon: Gosh

Robin: We have out moot team for the Oxford IP moot, I am very proud, my very first team and one is my old chambers and one is in 11 South Square.

Gordon: Oh wow

Robin: So I mean giving a few kids a big boost is quite fun, people gave me a boost years ago and there is something in that.

Gordon: Indeed yeah. I did my degree at UCL and I remember the very first day there was a Dean called Jim Stevens who said you are now going to train to be lawyers which means in three years' time when I say good morning you will say what is your criteria for good and please define morning which was quite depressing but probably true.

Robin: No I do not mean anything like that! My brother was at UCL in fact my whole family were at UCl. My father was at UCL, my brother at UCL, my brother in law at UCL, my brother in Law's wife was at UCL. I did not get in.

Gordon: No you went to Cambridge instead. So how did you get into the world of IP in the first place?

Robin: Well because nobody else wanted me. It all goes back actually an experience at School in some ways. I had a friend called Robert, Alan Roberts and his daughter was Alice Roberts. He was very keen on flying and he joined the Air Cadets when we were in our A level years. Must have been my last year because I had already got into Cambridge because that is the point of the story, he took me to Biggin Hill on the back of his motorbike and we went up in a two seater Tiger Moth with Biggles helmets and things. I was all shaken up with that and then I had to come back and in those days families went to the theatre together so my parents organised these trips to go and see Shakespeare at The Old Vic and I came back from Biggin Hill via South London and I had to go and see my dad first because he was in the Law Courts and I was a bit too early so he said I have got to go to a party, just go and stand in the corner it was in One Pump Court, so I did and it was a retirement party of a very distinguished commercial sort called D.N. Pritt he was obviously top top top, they did not make him High Court Judge because he was very left wing. Everybody was there Denning, Helsing, all sorts of people, I did not know who the hell they were, but anyway I got talking to this short fellow in the corner he turned out to be the chap called R.G. Lloyd and he said what are you doing and I said I am going to Cambridge, what are you reading and I said Science and he said are you already finished? Come to the Patent Bar, I had never heard of that, and come and see me. So the degree at Cambridge, my degree was not going to good in my second year and I was not going to be the Nobel Prize winner I had ambitioned to be and so I had a lot of friends who were lawyers and so I rang up my dad and said I am going to be a Barrister but still did not think of the Patent Bar, I thought I would be a real Barrister and he did that at Grays Inn and then the Grays Inn student adviser said you should do a law degree, I was very lucky he said go do an evening course and I went and told my father and said 'ridiculous, I'm doing the Bar exam', and he said I will pay for it. So I wend and did the evening course and I was taught by a young lecturer called Bill Cornish who didn't know about patents either, at that time and that went really well that degree and then I did a pupillage at the same time, I took a year off and taught at Kingston University, polytechnic in those days and my Dad got me pupillage, you just did it in that way those days with Nigel Bridge treasury junior and I did even dare ask him although looking back on it if I had asked they would have taken me, he told me that. I did not even ask to go into those Chambers and I sort of I said I will go to the Patent Bar because that is a completely backwater, very boring, very dull.

It was the best thing that ever happened and it was all because R.G. Lloyd suggested I did go and see him, he wanted to pay me a lot of money. That was suspicious, he was still paying for pupillage in those days and I found later he got people to write his speeches and so on and so forth. He was a politician. I did not go there, I did go to, first of all I tried Edmonton's Chambers and Grahams Chambers but they would not have me and suggested I went to somebody in Francis Taylor Buildings so I wrote to him and he said he was retiring and go and see Walter. The place was practically falling apart when I went there, there was just four of them.

Gordon: I remember Francis saying the building was very old because I mean I arrived in IP though not quite such a circuitous route but still by happen stance, I do not have any particular background really but I was working as a junior lawyer with a partner called Rupert Hughes who instructed you on the UK case and referral to the ECJ as it then was in Bay and Volvo if you remember all that.

Robin: I do not remember the case very much, what I remember, I remember coming to Birmingham, we had a meeting in Birmingham and that was quite unusual to go out for a meeting, I think Isobel Davies was there too.

Gordon: Yes she was. Yes yes that is it.

Robin: I remember having a meeting and I never got to the ECJ.

Gordon: No you did not, I went with Peter Prescott.

Robin: I always think they got that wrong. There was something very fishy going on with our copyright law at that time. Copy protecting spare parts. The House of Lords answer we cannot have that, was awful. I mean it was a disgrace. They found on the ground and then they argued, never put to the parties and was completely wrong.

Gordon: Well yes that can happen even now can't it but ……

Robin: Yes it can.

Gordon: So what was the first case you handled as a Judge, can you remember that?

Robin: Yes I can remember the first one as a Judge, I mean they put me in an Order 14 Part 24 these days, summary judgment application in a case of fraud, alleged fraud which had only recently, the rules had been changed you could not do summary judgment in a case of fraud but you could now and I remember reserving the judgment. I heard it on the Thursday, Friday coming in the weekend writing it and saying what the bloody hell have I got myself in for here. I found fraud and they took it to the Court of Appeal as of rights you could, I heard that Andrew Leggett, Lord Justice Leggett said at last the Chancery Judge recognises a fraud as soon as he sees one.

Gordon: That is a good start isn't it.

Robin: I heard that through the back door of course.

Gordon: In your early days as an IP Judge, you were very much seen by the profession anyway as part of the team with Hugh Laddy, did it feel like that? Did you work together? Did you talk about the cases with him?

Robin: Hugh and I had a very strange, we were kind of like brothers at the Bar and we saw things, we hardly ever had to finish sentences because I knew what he was going to say and he knew what I was going to say, but like brothers we also were quite rivals and it was a very not always easy relationship but of course while we were in the Court we did although in a sense I think I ran it differently from him. I was very disappointed when I came back from circuit that he had been running in the Court. It had slowed down, he used to worry too much, he wanted to read all the papers, he would read the patent right round to the little bit at the back of the patent which they had in those days, the Queen's Printers name at the very bottom on the back of the patent. So there was a rivalry, we had a comic story, we were never going on the Bench and we solemnly wrote a document, an agreement which said if either of us goes on the Bench we will buy the other one dinner at a restaurant of his choosing and we put it in the Chambers safe, he didn't sign at the beginning, I do not know why but I think it is still in the Chambers safe. It must be.

Gordon: I am going to be talking to John Caule in a few weeks' time on one of these so I will ask him if he can go and look it out for me. John Caule being the Clerk of course in those days.

Robin: I stole him from what is now 3 New Square and 6 Pump Court. He was the junior Clerk there, I was really impressed with him and basically the Chambers was not run terribly well, Blancow was head of Chambers, let everything just run, Sidney was getting on, he had been the Clerk he had been in Chambers since 1927 and he was ageing a bit even collected fees and I had to invent the fee system and you could do all those things and we could not get a decent junior Clerk because Sydney was so primed that anybody interviewed got the job on the grounds that they were interviewed and we had a bunch of really useless junior Clerks and I thought we have got to get that guy and apparently Sydney rang up John the Clerk over there and said I have been dreading this call.

Gordon: There we go, well you know it was obviously a good short because he had been around a long time hasn't he

Gordon: When you look back what do you think is the most important case you have been involved in.

Robin: Oh no doubt about it, Norwich Pharmacal.

Gordon: Right

Robin: Anthony Walden's genius idea you had not seen it all through but it was a hell of a battle as no other Chancery judge but Pat Graham would have found for us. We got the Court of Appeal they thought it was ridiculous and threw us out. Then we had an application for leave to appeal which took all day in the Moses room of The House of Lords, we were very interested in a thing called Section 3 of the Finance Act which never surfaces in the main case at all. We got ourselves organised it was a huge amount of work but the first time anyone had ever photocopied authorities was that case. We did it because we were photocopying lots of ancient books and lots of things that they did not have copies of and the client's said they would do it, solicitors could not do it and they did it and then they said well why do we not do the lot? I think they still have the five volumes in Chambers. You can ask John that too. We said we thought they were soft on what they would call crowd privilege (public interest) the Government protecting wrong doers did not sound a very attractive proposition we thought we could win that one first and then they want to fine us down. We got to the House of Lords and Anthony got up and Lord Reed said Mr [unclear 13:32] first. And off we went and it went on for about the whole first week and a bit of the second week.

Gordon: Week, wow!

Robin: Oh we have not finished yet. The story went on into the second week and I think on the Wednesday of the second week we finished and they said they would in early morning, because we walked up and down the corridor and they sat in there, you know that long corridor in the House of Lords, they walked up and down and lunch came and lunch went and at quarter to four the door rang and the usher came out, Counsel! We all came in and Reed said, by this time, they had lost one of them Kilbrandon had been sick and they just carried on with four and Reed said Mr Walton, Mr Olivier the lordships are evenly divided we want you to come back next week and re-argue it and Lord Kilbrandon will be back.

Gordon: And did you?

Robin: We won five nil, we never knew which two had changed their mind.

Gordon: Wow, so when it was two all you did not know how that split happened?

Robin: No

Gordon: Well you can always sell an important case when it applies its name to something and has stuck with it ever since so you know we still talk about Norwich Pharmacal orders to this day.

Robin: I know, it is better than calling them whatever they called now.

Gordon: Well indeed it is like the Anton Piller which is now search and seizure and how very prosaic and unromantic that is but there we are.

When I was a student in London I used to go and watch Lord Denning in the Court of Appeal, I used to love listening to his voice and I have always felt like there was a little bit of Lord Denning about you, you have a pretty strong sense of justice and willingness to make the law fit around the needs of justice where necessary. Is that fair?

Robin: I do not actually think it is really. I think I follow the law much more than Denning did. If ever a star felt fast it was Denning.

Gordon: Yeah.

Robin: I mean I reckon, you told me you were going to ask this question, I look back and I can only think of he was sighted to be in my entire judicial career maybe three of four times.

Gordon: Wow.

Robin: By the time I had got on the bench his star had gone.

Gordon: It is interesting isn't it, you still have a bit of him around Estoppel I suppose but yeah it is a fair point. The case I had in mine was one of mine actually that you may or may not remember, a very long running entitlement case called Simpress and Malaya which was argued in front of you in the Court of Appeal by Peter Prescott and we were dragging up 19^th century authorities and I think you knew who was right and who was wrong. You called both the main protagonists liars in your judgement actually and they were but I was always very grateful to you because I felt like we did bend things a little bit to get the right outcome. Do you have any recollection of that?

Robin: I remember the name but I cannot remember what it was about at all. Was that the one where there had been a previous finding?

Gordon: That is it

Robin: Yeah well that was a very plain case it was not an injustice I do not think I was bending anything.

Gordon: The guy had gone off and had one of those moments when he decided he did not want to go to his death bed having lied.

Robin: That is right and he confessed well that was new evidence, it was immiscible and what was the matter with that? You do not often get a witness later on who will get believed by the judge coming on and saying well as a matter of fact I was lying then.

Gordon: I know, yeah. So we have talked about you know the most important case was Norwich Pharmacal, what are you most proud of?

Robin: Well it actually is a sort of follow on, of all the things the biggest accolade I ever got came out this way. I got Tom Bingham to lead me in a case called Columbia Trademark in the European Court of Justice, the first big reference, the second reference from this country, with references from Germany and Denmark too. He came over a bit late and we were in the bar of the hotel I think it was a Holiday Inn at that point opposite the Court and he was pretty upset because he had just lost in the Court of Appeal in his favour and the other two Denning in his favour and somebody else against him in a case called Dee and the NSPCC and the NSPCC for whom Tom appeared had been ordered to disclose the name of an informer who had said that somebody was, the plaintiff was beating up her kid. She had brought a negligence action and she was wanting on discovery. The master had ordered the name and disclosure with my Father. The Judge had said no and in the Court of Appeal two one and said yes. I said I am sure we had some stuff about all this in the search we did for Norwich, public interest and we saw everything possibly it could be in Norwich. We just discussed it and went on as we did against Columbia and then a week or so later I got a telephone call from Tom would I be his junior in the House of Lords. We won five nil then.

Gordon: That is fascinating how that comes about. Do you and you may not want to answer this question it is up to you really. Do you, can you think of a judgment which with hindsight you might had got wrong and you wish you had….

Robin: I know one I did get wrong, that was Connor and Angiotech and I plainly got that wrong and Hopman was right, he reversed me a number of times, I think I was also completely wrong in the case about inventorship, partly because the simple point which they knocked me over was inappropriate, it was all done just in some other way. Then I think I brought in in the end. I cannot think of any others I got definitely wrong.

Gordon: I remember Connor and Angiotech because at the time it felt like a real high watermark in obviousness and then the House of Lords sort of rode it back a bit but…

Robin: it was ridiculous I mean I am now thinking about writing an article about plausibility at the moment and I think they got all that wrong, I don't see why an inventor has got to be implausible why should why is it more important, is it bigger the invention may be. If it works.

Gordon: I am going to look forward to reading that because I must admit the whole concept has developed a knife of its own. It is not exactly new news I mean it has turned up in judgments all down the years but it has suddenly become the buzz word. Obviously you are still taking that kind of level of active interest in what is going on in the law but now you are retired as a Judge when you look at the cases now are there any current issues where you would love to go back and have your say, I mean I do not know how fascinating you find the whole set friend stuff.

Robin: I do not feel that I want to stay on set friend frankly. It has got to the position which I put out in a paper in 2014, I run these international conferences which I have been running every two years run on patents and telecoms or patents and now telecoms and internet ate things which was due to happen of course this year but it is not going to, I did manage to do it last year in Tokyo. Any way I put out a paper for that in 2014 and we were doing it with George Washington around the world and in DC and it is what I said, it is contract law, third party can enforcement the contract under French law the rate has to be perfectly sensible, the big problem in that branch of law now is competitive jurisdictions anti-suit and anti anti-suit and may be anti-suit cubed injunctions.

Gordon: Yes but of course the sort of resurgent Chinese jurisdictions are having their say as well and that completes matters mightily.

Robin: Yes I mean also China itself cannot make up honestly they want to pay anything in the first place and not that simple now Huawei is one of the big holders of SEPs for 5G, may be the biggest.

Gordon: Yes, quite right.

Robin: I always wonder whether they think they won or lost the Supreme Court case.

Gordon: Well that is one of a number of recent Supreme Court judgments that have been a bit ambiguous and I going to ask you about that because in your day, there was Lord Hoffman in what was then the House of Lords, you had Willie Alderson in the Court of Appeal, you, High Laddy, Nicholas Pumpfrey in the High Court, it was a pretty formidable team, now we have got Lord Kitchin, we have got Colin going to the Court of Appeal, we have got Richard Meade appointed, do you feel that we are getting another contingent of strong IP Judges at the moment?

Robin: Yes we are, they are probably stronger, overall than may be a big strong than it was then. I think we are very well placed and we may not have seen the end of it.

Gordon: No there is a strong rumour and I am not going to ask you to speculate about that but there are various rumours, no neither do either of us. It is unbelievable, unbelievably cloak and dagger these days.

Robin: Well it is ridiculous, I mean the appointment system is completely barking mad.

Gordon: It is not transparent I give it that.

Robin: No it is also incredibly ponderous.

Gordon: Yes there seems to have been so many hurdles to jump these days before you can get anywhere, I mean it is …….

Robin: You have to apply, I mean I did not have to apply, I got sent form, I got a letter from the Lord Chancellor's permanent secretary. Dear Robin, as you know from time to time I discuss matters with senor members of the Bar. Perhaps you would be kind enough to get your Clerk to make an appointment with my secretary for tea.

Gordon: Then you know what that…

Robin: I had no idea that is what he had in mind actually

Gordon: Really?

Robin: Yes.

Gordon: Are you glad you did?

Robin: Oh yes, it is a fantastic job, I mean the Bar is bloody hard and Patent Bar particularly hard partly because you are expected to do Trials and that means cross examining Professors, Nobel Prize winners on their own subject.

Gordon: Right yes it is when I see the level of preparation that goes in the last few weeks and during a Trial it is awesome, I am amazed that people are not God knows what sort of performance enhancing drugs get taken at that time.

Robin: I tell you what we get, my last case was Kyron and we had a very good team at Bristows, everybody in that team did well afterwards, one of the secretaries became a solicitor, I think the fellow was a paralegal, I think he has quite a successful business not in IP, everybody did fine except one person. Anyway I got this team together, my junior was David Kitchin and my second junior was Richard Meade and I said we are going to have to work on weekends partly because the solicitors had meetings with the clients and you have to actually get on with it sometimes and just get more out. Richard came in with a small volume over that, the World's Filthiest Jokes, he said we are going to be reading from this every hour. So that is how you keep yourself sane. There is a follow up story too because Peter Prescott was one of the Silks on the other side and when we finished this Richard got hold of one of the standard Bristows looking dollies, and marked it up as volume 50 and took all the papers out, it was a redundant volume and put it through a hole maker and stuck this thing inside and went up to the clerk and said next time some papers come down for Mr Prescott would you put this in. We learnt Peter was not always reading his papers and he never found out as far as we know. I think that the trial Simon Thorley was in desperate [straits wanted to put up a volume about worms and what the hell they had to do with the virus I do not know, never did find out, but anyway he put it up and he said may we call this volume 50. Three of us broke into laughter nobody else knew what why we were laughing.

Gordon: I did a couple of big cases with Peter and the thing was the fact that he would arrive for a 10:30am start at 10:29:57 you would just be thinking he would not make it and then the door would open and he would sweep in but yeah it was all good fun.

So let us end this section of our discussion on a high note, you know you told a few funny stories down the road but what was the funniest thing that happened to you in Court?

Robin: Well I do not know I think that volume 50 one was actually one of them. There was a moment where I cannot remember what the joke was, it does not really matter, but whatever it was Jeffery Hobs made the joke, I was the judge and I could not stop laughing. It was a case about dirty books. I do not know what Jeffery said but I was in a fit of giggles and I finally managed to stop and I said Mr Hobs I am supposed to make the jokes and you are supposed to laugh.

Gordon: When a fit of giggles descends it can be infectious cant it round the whole Court. Well thank you very much indeed Robin, I am delighted to tell you we are not stopping there. Robin has kindly agreed to make this a double header so we will be back for a second session moving onto a few more contemporary topics maybe but not least the fatal plight of the undivided Patents Court and I will look forward to that very much but in the meantime thank you very much again to Robin and to all of you for listening in.

Thank you very much.

Gordon Harris: Welcome back Robin, great to have you here again. Last time we concentrated quite a lot on your judicial career and before we move on I would just like to go back prior to that again and maybe ask you about some of the cases you were involved in as Counsel. Cases you particularly enjoyed or you know what do you think stood the test of time?

Robin Jacob: You asked me and I thought about it quite a bit I do not know if any of my cases really stand, I suppose clear the way is mainly true but even then some there has been a bit of back peddling going on I can see. I do not think any cases really stand the test of time. All the things Hoffman laid down have all been torn up.

Gordon: Indeed

Robin: I am not convinced that anything stays the same.

Gordon: Where did you stand on the whole Actavis thing? I mean you know for many many years we shied away from all of that and then in it comes into the Supreme Court in the Actavis case. I mean where did you sit on that topic?

Robin: Well I think that they are completely wrong we worked perfectly well without it, I ran that big event at UCL the biggest event we had nearly 900 people come to it, and we took a vote.

Gordon: Yeah

Robin: Quite clearly most people thought it was wrong decided, it has not done the law any good it hasn't done inventiveness any good, it has done nothing at all except that it is much harder, as you can tell me more than I can tell you, much harder to advise.

Gordon: It is much harder to advise it certainly has rendered things very difficult indeed and especially when you follow the implications through from infringement with the validity which you know you are bound to do. I mean it is very difficult to advise and as I said it filters through from infringement into validity as well.

Robin: The Americans have had it for years, it would never have happened in Europe because you would have just amended the patent to claim…the trouble with that case and there is absolutely in the patentees favour the specific disclosure was there in the patent.

Gordon: Yeah

Robin: He could have allowed an amendment but because there was a wider claim, you cannot amend a patent in the United States, big defect in the US system.

Gordon: Yeah

Robin: We do not need it and most people spend, it is a bit like the White Knight I was thinking of a plan to dye ones whiskers green and then always use so large a fan, that they could not be seen., you do something daft and then you spend your time trying to undo it and that is what the Americans have been doing and we will have to do the same. I do not think it has done any good at all.

Gordon: You have just answered one of my other questions other actually because I was going to say your judgments were never anything less than entertaining to read because there are lots of bon mots and lots of interesting little passages and quotes and throw away lines, I was going to ask you whether that all came naturally or whether you had a kind of author's feel to this and sort of went back and perfected them but I suspect you have just answered me by in that last answer but it probably just comes straight out does it.

Robin: Some things do, sometimes you now I look back something I said in an off the cuff fashion were better than the things I composed carefully. I work very hard on my judgments actually, people are a bit surprised because they always thought I was a lazy sod and one of the things I did was to, unless I was being lazy, was to not put in any detail that did not matter. Why do I need to say this? If I do not need to say then I do not say it. My last judgment for the Court of Appeal was five pages long, it had two points in it and you think the world has gone mad on the length of judgments.

Gordon: Unbelievable and sometimes I think that the Judges are showing off their technical knowledge and you get about 200 paragraphs at the beginning of the judgment on the technology with the Judge demonstrating to the World that they have understood it which is broadly unnecessary and …

Robin: Very unnecessary and not just the technology but also the citation of authorities, I once was approached by a chap called Binny in the Canadian Supreme Court and I said why do you write so long, he was one for the first and we did not do it so much here at that point, it was Binny in Canada and there was of what is he called in Australia, Bill Gullow and they reckon it is, they were just showing off how many cases they could cite. He said well I have got a different audiences and I said what do you mean, you have got the academics and you know you do not have to write for academics, they have to take out what you have got, you do not write for them.

Gordon: Well that is what footnotes are for, you know, send the academics off happily to research, you do not need to set it all out in full. Just drifting back to Actavis, we, you know I wrote on that saying we should have seen that coming because of course right back in 2001 in the first instance decision in Kirin-Amgen it became a change in name throughout Mr Justice Neuberger as he then was made the first kind of finding of Doctrine of Equivalence equivalent and it was overturned twice, once in the Court of Appeal and then in the House of Lords resoundingly but you know obviously he made his way up through the Courts and got his own back and a rather lengthy revenge, I think it took him 16 years.

Robin: Well I remember that but yes I mean he has always I think he is still doubtful now as to whether he didn't make a big blunder. He said that. Unfortunately it was a non-specialist, I know David did quite a lot of Patents, it was basically a non-specialist Court…you know a man who says I will take the sodium, cannot have potassium.

Gordon: Yes well indeed. So just moving on a little bit to your current role, so you…

Go on…

Robin: Well before it came from the European Patent Office, who wouldn't allow the amendment.

Gordon: That is right

Robin: They did not come back with a division law which they fought for it.

Gordon: Exactly I mean it stewed the whole thing actually and it also ended up with another thing, there was a suggestion that the Government would lead to file wrapper estoppel and in fact what Lord Neuberger was talking about was the polar opposite of far file wrapper estoppel in that case he was saying I am not bound by a mistake made by the European Patent Office I am prepared to move away from it, I will look at it to find that it was wrong so it is exactly the opposite of file wrapper estoppel but anyway there we are.

So coming onto your role now where you are at UCL what do you want to achieve, what do you want to look back on at the end of that phase and say this is what I have done in this role as professor at UCL?

Robin: Well I have tried to put UCL on the map at major conferences and things and I am very fortunate in which people are kind enough to come if I ask them and they know who it is who is asking them from around the world which is very nice. I do not know if it will be permanent, things are not and they come and they go you know the greatest test team suddenly loses.

Gordon: UCL has been pretty consistently near you know quite high up in the legal rankings certainly for many years

Robin: Well we are well positioned and NSC is as well my old University sometimes I think academics can be too academic and I find myself as a bit of a stranger sometimes in what is being discussed at UCL. We have these sessions every now and then and I go to some of them where an academic presents what they are up to just for us internally, sometimes I understand sometimes I do not. I understand the commercial law ones and I am not sure I do understand. I have never been a great fan of jurisprudence, I think it is…

Gordon: No there is a language

Robin: They use a lot of language you do not understand but I think that deep down they are grappling with they are making the concepts much too complicated and the rule of the law, the basic straight forward rule you simply, it is very pragmatic, you know, a theoretical thing it is what happens to judges when somebody is bringing pressure on them or does not all because…

Gordon: And there is a bit of that

Robin: Does not because it is not possible.

Gordon: There is a bit of that going on at the moment. In these last few years I was lucky enough to get to know Lord Ashdown, Paddy Ashdown and I had some quite nice long chats with him and he was adamant that the Rule of Law was more important than anything else and that when he was trying to re-establish Bosnia at the end of the Balkan Wars, establishing the Rule of Law was more important to him at that point than getting democratic institutions in place, you know he said that until democratic institutions will not survive unless there is a Rule of Law to underpin them and it is sort of that fundamental is it not really.

You have talked a bit about you know the judges you have known in Canada and Australia and of course you are well known for knowing all of the European judges very well and had great relationships with some of them, you quoted them frequently and attended meetings with them. Do you think that level of European judicial collaboration will survive Brexit and our non-participation in the EU?

Robin: Well I do not see why it should not. I had a WhatsApp this morning from my friend Robert Van Pierson of the Dutch Supreme Court, a former patent judge, I have been in contact with Gus Barker who is going to come to an event I am doing in November - advert here - on Regeneron.

Gordon: So yeah, so still working…

Robin: It is fascinating that I can ask them what do the Germans think of Regeneron, and Kate O'Malley is coming in from the Federal Court of Appeal in the United States.

Gordon: Yeah everyone would say intellectual property is a global phenomenon and it is great that the Judges are interacting, I just wondered if there would be any kind of barriers going up and moves to your relationships pre-date all of this stuff, I am just wondering if may be it might be a little more difficult for the young Judges now to form those relationships when we are going to be out on a limb.

Robin: I think it may depend on the IP subject for example, we do not really do much in the way of copyright, never have done, I do not really know the specialist Judges in copyright. Trademarks I think that may be so, I mean I used to go to Alicante quite a bit with someone and meet Judges there and there was the European Patent Judges and Trademark Judges symposium which used to run every two years in Alicante and we will not be going to that and I think that is a pity. Patents on the other hand is provided we stay in the EPC then we have got the European Patent Academy which is extremely well run, a very good institution that they have created there. I was sceptical at first I thought why does the Patent Office need to create an Academy, and the answer is because it is not just a Patent Office it is actually a promoter of the patent system and it started really I mean my first experience was in 1994 I was, UK was the host we all went off to Wales and got to know some of these people and we became friends over the years and Hugh came and joined me by 1996, '96 was Sweden and '98 was Spain and we had a meeting there, and the Head of the Federal Patent Court was a lady called Sedermann Triberg and she said we have got to try and create a European Patent Court, create a group of people and call ourselves the Bridge group. It was pretty hopeless at times most other Judges did not use email yet, we were way ahead and electronic judgments had just started happening really but that was all done miles before this EPC project and well why can't they go back to that and it will. We have the annual Venice meeting, I hope the European Patent Office may reinstate the bi-annual meeting of all Judges including Judges in non-patent countries, they may not it is quite expensive and is funded half by the EPO and half by the host country. We used to have two Judges at least from every member state of the European Patent Convention.

Gordon: You were involved in the judicial training for the EPC, is that all still going on? Do you think there is a political will across Europe to make the unified Patents Court happen even without us?

Robin: Again no, that is a non legal question. It depends on the, it is not really is it Europe, it is whether Germany is going to do it. At the moment it is still alive, the chap who is running it, Alexander Ramsey, is a Swede, brilliant Judge and a brilliant man in my opinion and his, very nice story, we had were having a meeting of the UPC committee and it was going to be in London, he said it will be in London, it was going on a Monday. I worked out that Arsenal were playing Spurs the day before so I sent a message saying do you want to come and he said I am already coming [Note: loss of audio 44.53 to 45.20] I said we are going to London, at half time we were losing two nil but I do not know whether other Judges, they had got to get to know each other, the next generations have got to get to know each other. Whether somebody's personality, just I am a sort of bloke who likes getting to know people and if you are a bit lonely then may be not.

Gordon: I mean I hope it does continue. One thing that is just beginning to cause a bit of concern, enough concern that bodies like IP Federation and the Intellectual Property Lawyers Association are, are not directly lobbying the Government is that there seems to be a hint of a threat to our continued membership of the European Patent Convention. Now it would seem like madness to go down that road but there is certainly some level of indications arising out of the document, the EPC being missed off a reference in the draft Treaty with the EU. What do you think would be the implication for the UK IP professions if we did drop out of the EPC system?

Robin: Well the first question is what is going to happen to the Patent Office. It could not cope. We are not a big enough country to run a Patent Office properly, I mean this idea that you can have a whole series of national patent offices is a huge burden, so at the granting sort of stage things turn to chaos, it is a very brilliant Patent Office now and has been for many years, one of the best Government departments. I did a lot of work with the Government over the years and as a British pupil and then as Treasury Junior myself for IP and did a few other things for the Government, always the Patent Office was way better than things like Customs. Whether we have the profound and become an isolation country, I do not think will do us any good at all, it will do us a lot of harm. The professions may lose out too because the status of the UK and IP world will fall internationally.

Gordon: Of course while we have been members, you know, people might choose the UK as a means of putting down a marker around Europe because it has been such a reliable jurisdiction, things are litigated thoroughly and you get a pretty reliable result. If we are not part of it then people are only going to litigate here if the UK market is very important to them. That is bound to be limited isn't it?

Robin: Yes quite obviously.

Gordon: Do you get much chance to talk to the students? Do you talk to any of them directly or only through the sessions you described in our last talk about when you sit in on their lectures.

Robin: Bit of both, I mean a bit of both. I see them and get nattering to them and not all of them as a group but somehow some individuals I get to know, you know, you cannot give all students you have got equal treatment, got about 90 doing it I think this year, doing IP under graduate.

Gordon: What do you say to them about contemplating a career in IP now, do you think the opportunities will be as great for them as they have been for you and I over so many years?

Robin: I think so, I do not see why not, I feel it is fractured now much more than it was as there will be separate people who do copyright, separate people who do trademarks, one of the things I have learnt is how important transactional law is, really there are not two branches of, it is not grant and enforcement, there are three in transactional law. Mark Henderson runs a fantastic course, you are sending somebody from Gowlings, may be you do.

Gordon: We do, we do every year, yeah yeah.

Robin: You may have, some of you may be teaching on it, from the profession to the profession.

Gordon: No we value that course very much, it is a big step forward.

Robin: So yes there is plenty of room for kids to go on in the future. The Bar is still getting bigger, I mean with COVID and things I am hearing the patents are holding up but some of the smaller work is not holding up.

Gordon: There is plenty of work going on and plenty of Court activity I can tell you that.

Robin: I know that yeah.

Gordon: Certainly a lot happening and I must say that some of the remote hearings have gone very well. Sometimes it is less easy, it is going to be interesting to see how things evolve afterwards. Do you think there will ever be even greater globalisation of the IP world, do you think it will be beneficial, do you think we will even have a global …

Robin: It is difficult to say, I mean really it depends on greater globalisation of everything, you cannot have globalisation of patents and nothing else. You have got to have, it is no good saying America first and then expect everybody else to do it or this is the way we do it and either you do it the way we do it and therefore they are okay or they can do it some other way and they must be wrong. It is a big national tendency for it to happen everywhere. How the Americans fell in love with the jury system is just unbelievable, hey did not do it when I was a kid, that was dug up when they discovered if you went to a jury, the jury is up to finding the Plaintiffs, starting the contract.

Gordon: It is an odd phenomenon, I have sat through a number of US jury trial and it is a very strange business hearings.

Robin: A lot of them now think it is jolly good. The Judges think it is great.

Gordon: Yeah I do not think it will catch on here somehow. So one of my favourite quotes of yours over the years was you once said that the best place to hide a leaf was in a forest and I wonder, the reason that I bring that up now is because we are not beginning to cope with AI, artificial intelligence, and I wonder if you think there may be a different approach to some areas of the law where AI intervenes, you know looking at insufficiency. If an AI machine can scan millions of options in a few seconds does it change the approach we might have to take do you think?

Robin: Yeah why not. I mean on either side can a machine making invention. It is more difficult with AI and art which brings you down to the question as what is art? And I do not want to go there, and I think any approaches in copyright law which do go in that direction end up end up with that sort of thing and this idea of the author's own intellectual creation, I want to know what the hell that means. An extension of the author's personality I just do not know what it means. If somebody made this thing, that is it is my work it should not be copied.

Gordon: Yeah well quite, I means its

Robin: Put all that on one side as far as patents are concerned and it is obvious this may change, if you can find a million compounds with AI and see whether they work or not well then finding one of those may be finding a leaf in the forest. It may be obvious. That may have a profound implication because if you have been reading my article on enforceability one of the functions of patent is not to disclose an invention all fit and ready to go it is to give you an incentive to research your idea.

Gordon: Yes

Robin: and that is one of the fundamental mistakes that are made by this theory of it has all got to plausible.

Gordon: Well indeed yes, I mean you know there are not many patents which are really reflect a kind of eureka moment are there? Most of them will be long hours by men in white coats in labs.

Robin: It is the beginning of the process not the end of it.

Gordon: Yeah, I mean it seems impossible to think that AI will not infect that so you would think that the bar for inventiveness might shift up a bit?

Robin: Yeah and that may not matter.

Gordon: Well it may be a good thing.

Robin: Well I mean it depends how much is relevant, if you can do a lot of your development work by doing AI on a computer in no time then we do not an incentive for it. Then we do not need a patent.

Gordon: Yeah well that is, I mean that is another, now we are getting into the realms of a philosophical discussion about AI and patents, and we really, is it the reward for actual inventiveness or it a reward for a long substantial financial investment and probably a little bit of both somewhere down the line.

Robin: it is a bit of both but I think mainly it is the latter actually. Very few inventions you can practice by reading the patent. Tin opener, yes!

Gordon: Yeah oh yes I certainly find that, I think patents seem to get more and more obscure. I remember one I was reading very happily a few years ago and then I turned a page and there was just a page of formulae and I thought oh God. Right I give up time for a…...

Robin: Anthony Walton told me that, he said there were some cases you just cannot understand he said, there were some cases in the 19^th Century he said try and understand the technology, it was all expressed in 19^th Century language and you could not.

Gordon: I love some of this very old, old cases, they make fascinating reading don't they? The brain at judgement in those days. Tell me, coming to a close then Robin, do you have a sort of message for the IP world today, do you think it is in good shape? Is there anything you would think it should do or should not do to, relevant?

Robin: Well I think the area probably of most concern is pharmaceutical. Under constant pressure, all these drug companies are on wicked evil missions. Well certainly COVID comes under that how are we going to get out of it and by a bid drug company because nobody else can do it. [Audio skewed] by the way that the anti-patent brigade would have wanted we would not have had the machinery at all. Unless you can find some other way of doing it. Unfortunately there is not a Government spend on it, it is a nonsense and that Labour Party document is absolutely ludicrous. The thing is it is part of my university who suggested that stuff not the law department and they never come to talk to me at all. I invited them several times.

Gordon: That does not make a lot of sense.

Robin: No it does not work, just not human, it is not the way human nature works and Government will not spend the money, they do not spend the money now and why are they going to start now.

Gordon: So you think that basically business generally that we should be more respectful of big pharma for example who ….

Robin: Let me explain how the patent system works, the most difficult thing is if it is counter-intuitive and the legal right to stop people doing things increases the number of, the rate of innovation and investment, it is counter-intuitive. Jeremy Benton said it, his brother had a patent and produced one of the first industrial factories, block making machinery or pulley blocks for the Navy. 2000 pulley blocks that needed replacing all the time, good business. Jeremy Benton's brother helped in the Battle of Trafalgar and he understood patents.

Gordon: And Jeremy got it, did he?

Robin: He said if you do not get it you will be against them, if you do get it you will be for them. That is what he said.

Gordon: That makes me think of one of your, another one of your quotes, I remember you asked about you were talking about I think it was in the Unilin chain of cases and you said businessmen want certainty and I was appealing you and we went to the great Sydney Kentridge to seek leave to go to the Supreme Court. I quote you to him on that and he went yes in my experience in any given case, 50% of the businessmen want certainty which I thought was an interesting rebuff.

Robin: I was not talking about cases, I was talking about out there in the real work without cases.

Gordon: I think we all knew what you meant, it was quite a ………

Robin: He saw the best point in that case was the only case and I got knocked over.

Gordon: He was well I think still is a great man if there was a high spot in my career to shake hands with someone who shook hands with Nelson Mandela. There we are.

Robin: I knew Nelson Mandela, it was a chap called Cyril and he is dead now and he went out and when Nelson Mandela became President there was some event in the Courts and Cyril was with him at the trial and Mandela said to Cyril the last time I came here I did not know whether I was going to be taken out and hung.

Gordon: That is a good line. Well look Robin, thank you so much for taking so much time out of your busy life. You said right at the outset your first session just how much you are doing these days so it is great for you to take the time to do these two sessions. It has been fascinating talking with you. I hope our audience are equally engaged. Please do continue to benefit the IP world with your views and topics and I look forward to your paper on clausibility, we have all still got a lot to learn from you and it is never short of entertaining. Thanks you very much indeed Robin, thank you.

Robin: Been good fun, good talking to you.