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 19th Century he said try and understand the technology, it was all expressed in 19th 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.