Law

Patent vs Product Licence

Patents

A patent is a set of exclusive rights granted for a specific period by a state to an inventor of a product or a process, in exchange for the inventor publicly disclosing a detailed description of the invention. A patent is therefore a form of intellectual property.

The most important right a patent gives the holder is the right to control who makes, or uses, the invention. So the person (or company) who holds the patent can either use the invention themselves, or give permission for others to use it.(1)

If another person uses the invention without permission, the patent-holder can sue them to:

  • Stop them doing it.
  • Get damages for lost profits.

Product Licences (Marketing Authorisation)

Product licences (now known as marketing authorisations) are for medicines.

A marketing authorisation is required in order to put a medicine on the market.(2) The product licence is obtained from the relevant licensing authority (either the Medicines and Healthcare Products Regulatory Agency [MHRA], for the UK, or the European Medicines Agency [EMA], for the European Union), upon production of satisfactory evidence of efficacy and safety.

A medicine cannot be marketed without a marketing authorised, and where a licensed (authorised) product exists, prescribers should prescribe that product unless it is unsuitable for a particular patient.(2,3)

The Difference

  • A patent protects an invention. It allows the inventor to prevent others using his invention without his permission.
  • A product licence (marketing authorisation) protects patients. It ensures that only medicines which have met certain standards of evidence with regards to safety and efficacy are allowed to be put on the market.

If a person has a patent over a drug, then he can prevent others from manufacturing it, but he cannot market it as a medicine himself unless he has a product licence.

References

  1. Patents Act 1977. Available from: http://www.legislation.gov.uk/ukpga/1977/37
  2. Human Medicines Regulations 2012 No. 1916. Available from: http://www.legislation.gov.uk/uksi/2012/1916/contents/made
  3. Prescribing guidance: Prescribing unlicensed medicines. Available from: http://www.gmc-uk.org/guidance/ethical_guidance/14327.asp
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Freedom of expression: only applies to our sort of people

Like so much that’s been written over the last day or two, this post is inspired by the attack on Charlie Hebdo, the French satirical magazine.

Shooting cartoonists is not acceptable, no matter how offensive their drawings.

However, if we move beyond the terrorist act itself, there are some interesting things to think about.

Firstly, there is an underswell of “Well, if Christians don’t get hot and bothered about satirical cartoons of Jesus, why should Muslims get all up-in-arms about cartoons of Mohammed? It’s the same thing, isn’t it? It just shows how intolerant Muslims are.”

Actually, no, it’s not the same thing.

An important point in Islam is that Mohammed is never pictured; to do so is blasphemous, even if the depiction is a favourable one. In fact, when a film (The Message) was made about Mohammed and the beginning of Islam, it was made without Mohammed – he was always there, just never on screen. The nearest you got was seeing the head of the camel he was riding.

If Muslims are going to be criticised for objecting to cartoons of Mohammed, then at least people should understand that there is a difference between cartoons of Mohammed and cartoons of Jesus, or Buddha, or the Hindu gods or the Flying Spaghetti Monster.

Criticise, fine. Just get the facts right first.

Secondly,  there’s the “Well, Muslims are allowed to practise their freedom of expression etc by being Muslims in France. Charlie Hebdo was only exercising its freedom of expression by drawing satirical cartoons.”

Actually, that’s another mistake. Muslims in France do not have the freedom to express themselves as Muslims however they wish. Muslim women are not permitted to wear a face veil; many girls are not even allowed to wear a hijab in school. Even though wearing a niqab or a burqa doesn’t hurt anyone else, doesn’t damage anyone’s property, and doesn’t demean or insult anyone else’s life choices, French Muslim women are criminalised and fined for expressing their religion in a manner of their choosing.

The reason for this is the principle of “living together”, which was newly added to the armamentarium of the European Court of Human Rights, seemingly specifically to justify allowing France to ban a religious practice that French non-Muslims did not like, in SAS v France. This is directly in opposition to the principle of human rights – that a human has a right to do, or be, certain things, either regardless of how much other people don’t like it, or to the extent that it does not impact on other people’s rights.

There is no right of “living together” in the European Convention on Human Rights. Neither is there a right not to be offended, or a right to not see things that you, personally, find objectionable.

This “living-together” principle is nothing less than carte blanche to decide on state-mandated standards of behaviour and enforce them – generally at the expense of minorities. France was therefore allowed to use this “living-together” principle to justify banning a minority religious/cultural practice simply because the majority did not like it.

So, going back to satirical cartoons… why is it OK for Charlie Hebdo to print cartoons that are deeply offensive to devout Muslims, and are certainly deliberately disrespectful to Islam, but it’s not OK for Muslim women to practice their religion in a manner of their choosing, which does not harm or disrespect anyone else?

Or, perhaps, is freedom of expression only free when the majority approves of what you wish to say or do?

Thirdly, and perhaps most perniciously, there is an unpleasant, sanctimonious tone to much of the comment, which implies “here in the West we are tolerant; those nasty Muslims are against all the good things like freedom of speech, women’s rights, and bacon sandwiches.”

I think, before we get too proud of our moral high ground, we ought to take a look at how high it actually is. Women’s rights is a large and complicated subject, but we need to remember that until 1937, a woman in the UK could only divorce her husband on grounds of cruelty, sodomy or incest (for a man, mere adultery was enough – but a wife was expected to put up with her husband sleeping around). The marital rape exemption (which assumed that a woman could not refuse her husband consent to sex, therefore it was impossible for a husband to rape his wife as rape requires lack of consent) wasn’t finally killed off in the UK until 1991 (by the House of Lords as was, in R v R.)

When it comes to freedom of speech, in 1996, Nigel Wingrove‘s film Visions of Ecstasy was banned by the British Board of Film Classification on grounds of blasphemy. The last of the blasphemy laws in the UK didn’t disappear until 2008 – and while in force, only applied to the Church of England anyway.

We here in the West are not nearly as tolerant as we think we are, and we should remember that real tolerance consists not of tolerating things that don’t bother us (like cartoonists ridiculing Muslims for profit), or that we even secretly approve of, but of allowing those actions that we don’t agree with.

Tolerance does not consist of outlawing anything (like niqabs, or walking around naked) that we don’t like, and then getting the police to deal with anyone who contravenes the new rules. It consists of asking “Is this weirdo actually harming anyone or anything else?” And if the answer is no, letting him get on with it.

The Children Act, by Ian McEwan

This is quite a short book – I read it in one evening. But it is the sort of book that stays with you.

It’s about Fiona, a High Court (Family Division) judge. Her husband of many years decides he wants to have an affair with a much younger woman – and wants her permission for it – and the same evening, an urgent case is dropped on her. A young man, three months short of his 18th birthday, has leukaemia and is refusing a life-saving blood transfusion because he and his parents are Jehovah’s Witnesses.

A person under 18 can consent to medical treatment if they understand the implications (Gillick competence), but their refusal can be overridden in their best interests by a court order.

Despite appearances, this book is not about the nitty-gritty of choice, self-determination, and so on. There is no in-depth treatment of the moral and ethical implications of parents refusing consent to life-saving treatment for their children for religious reasons, or even about whether it is ethical to deny the right to choose to a young person who is only three months short of his 18th birthday. The book is, instead, about the way Fiona deals with the case and its aftermath, and the consequences of her choices and actions.

This is one of those books where you have no real doubt how it’s going to end – the interest is in how that endpoint is reached, and the journey you make in getting there.

Right from the start, I liked Fiona. I cared about her, I wanted her to be happy, and I respected her dedication to the law and her duties as a high court judge. But McEwan also wrote – very well – an adult’s dismissal of a child’s (or young person’s) feelings. Oh, they’ll grow out of it. But, as many parents find – too late – young people’s troubles may seem minor to an adult with a wider worldview and greater experience, but they’re pretty shattering to the young person concerned. How many adults have failed to take a child’s problems seriously until too late?

Fiona, of course, doesn’t make all the right choices – it wouldn’t be a very good story if she did. But even as we, the readers, can see the road she is travelling along and where it is likely leading, we know that Fiona can’t. She makes the choices that seem right and good at the time, and it’s only later that she realises where and how and why it went wrong.

In the end, I suppose the book is about responsibility: when you rearrange someone else’s life for them (particularly without their consent), you had better have a care for the consequences – which may be more far-reaching and unpredictable than you expect.

This book will join the very select list of my favourites.

If you want to know which legislation and cases are mentioned in the book, I’ve added the book to my list of Law in Literature examples here.

Will-writing: let your imagination run riot

Yesterday I drafted my first Will.

It was for a single mother with one primary-school-age daughter, life assurance, and not much else. Pretty simple, you would think?

Hah. Most certainly not.

Drafting a Will is a time when the drafter can push his or her imagination to the limits of the bizarre, morbid, or just plain strange.

What if my client got run over by a bus five minutes after signing the will – and then her daughter got struck by lightning and died all black and crispy a week later?

The answer to that is that unless you put in a clause about 28-day survival, the Horrible Ex (the daughter’s father) gets a windfall because the money goes to the daughter, then to the daughter’s father – as the daughter, being under 18, would be intestate.

What if the daughter manages to survive vindictive meteorology, but falls over a cliff at the age of 17 and is smashed to pieces on the rocks, many feet below?

Well, if we left the money to the daughter, the Horrible Ex still gets the cash!

So we have to set up a trust to make sure the daughter doesn’t become absolutely entitled to the money until she hits 18 and is able to make a Will of her own. So when she dies, smashed to pieces on the rocks at the age of 17, the money goes to someone else (not the daughter’s father).

OK, but what if before falling over a cliff the daughter had been made pregnant by her boyfriend and given birth to a child of her own?

If the daughter had to get to 18 in order to become absolutely entitled to the money, then the daughter’s child is then disinherited because the money goes to the alternate beneficiary…

So you have to put in something that says that if the daughter gives birth, then she becomes absolutely entitled.

And what about if the Client herself, on the way home from signing her Will, goes for a wild party, gets drunk, has mad passionate sex with a complete stranger, gets pregnant, but then is hit by quite a small meteorite before she discovers she’s pregnant? She doesn’t die instantly, but ends up in a persistent vegetative state – and the baby is eventually born nine months later, upon which the Client dies.

So there has to be provision for more children to be born without being disinherited…

I’ve read of Lois McMaster Bujold asking herself “What’s the worst thing I can do to this character?” Will-writing appears to be an exercise in “What’s the worst thing I can do to this client?”

And you know the best thing of all? If you’re writing a novel, you have to pick one worst thing to do to your main character. When you’re writing a Will, you can do them all!

My Life in Law

I’ve watched The Firm several times, so of course I knew what to expect with working in a law firm.

Now, two months down the line, I can report back on which bits were right.

The part about the long hours is definitely correct: my husband picks me up from the station after 10pm without a word along the lines of “Where have you been?” or “Who is he?” (Of course, now I know how to do divorces, he’s got to watch his step. He has been warned.)

On the other hand, the part about being given a posh car (in the colour of your choice) is not. Dammit. Still driving the horrible little car with the weird double central-locking that won’t allow the doors to open when the engine is running. I am probably going to die in a vehicle fire.

You do get to go to meetings in nice places, though. I went to see some lawyers down in London – the biscuits were pretty good, and the coffee was real. On the other hand, travel was by train (I thought I’d got lucky with a first class ticket, only to discover that the train didn’t have any first class seats…) not business-class aeroplane, and there were no margaritas on the beach.

Law does have a pretty good standard of ‘strange’, I’m discovering. The guy who asks “Is what I just did a crime?” Answer: “Yes. Of course it is. It’s obvious. You don’t need a law qualification to figure that out. And you’re not asking out of academic curiosity, I’ll bet…” Or the guy that comes in with the legal document that says the exact opposite of what he thinks it does…

The most difficult thing for me, though, is telling people how much things cost. The client is charged over £100 an hour for my time, of which I get 25%. The problem is that much of the work is invisible: hours of research to figure out how to sort out a problem, which can culminate in quite a short letter. Or a lot of short telephone calls – it all adds up.

I know from experience that craft workers have the same problem: people consistently underestimate how long it takes to make an item. And, of course, whether you’re talking law or glass-blowing, there is the skill component. You wouldn’t be paying someone else to do the job if you could do it yourself – so you have to expect to pay that person according to the value of their skill. And if you don’t like it – well, go to law school yourself. It’s only £9000 a year… Glassblowing is probably a bit cheaper, but on the other hand the most common injury for lawyers is probably paper cuts. (At least unless you’re a partner in one of the big firms, in which case it’s back injuries from lifting your wallet).

And the job continues…

Well, the new job continues – on a learning curve that’s a bit like the North Face of Everest, but without the snow. (“It’s only a Part 8″…. “What’s a Part 8?”) I haven’t had a learning curve this steep since… well… ever, really. Even during my first pharmacy job… ahem… years ago, my degree had given me some of the real-world professional skills to cope in the workplace. The same is not true of the Graduate Diploma in Law. I can quote a lot of case law, but I have no idea what a Part 8 is. (Part 8 of what? And what happened to Parts 1-7? Is there a Part 9?) Luckily, everyone in the office is nice and is willing to explain things in short words.

Then there was the problem of the Mobius T-shirt. You will, of course, be familiar with the Mobius strip – give a strip of paper a half-twist and join the ends together, and you’ve got a Mobius strip. It’s a mathematical curiosity, because it’s an object with only one side (the 3-D version is the Klein bottle). Sometimes, if you put a T-shirt in the wash, it comes out with a weird sort of tangle that looks a bit like it might be a Mobius relative – except of course it can’t be, because however you tangle a T-shirt it still has two sides and you can always untangle it. However, the Conveyancing Chap brought in one of his wife’s running singlets which, he said, had got itself tangled up in the washing machine and proved extraordinarily resistant to being untangled. He’d spent hours trying, and had brought it into the office to see if anyone else could figure it out.

Now, I’m usually pretty good at that sort of thing, and I enjoy it (as was demonstrated in the Budapest Palace of Miracles), but I couldn’t manage it. Despite considerable effort.

So Conveyancing Chap gave it to Accounts Lady when she arrived (as the next victim), who gave it one look and said “It’s meant to be like that.” We stared. Then Trainee Solicitor (Female) arrived, and agreed with Accounts Lady. Indeed, the running singlet was supposed to have twisted straps. Conveyancing Chap and I retired, discomfited, having demonstrated our complete lack of fashion knowledge.

What I want to know is, did Conveyancing Chap’s wife know the straps were supposed to be twisted? And if she did, was giving it to him to untangle some kind of devious marital tactic? And if so, what was it supposed to achieve? Just keep him quiet for a few hours (I think that was my father’s aim when he gave me a Mobius strip and recommended that I find the other side) or drive him to despair?

In addition to problems of non-Euclidean sportswear, it’s also Ramadan in the office (it being a Muslim firm – as far as I can tell, the non-Muslim workforce consists of me, Conveyancing Chap, the receptionist and the cleaning lady). Not being Muslim myself, I end up doing fasting by proxy (since it’s a bit rude to scarf cake and coffee in front of people who can’t share), which only means that I get the same dehydration headache as everyone else, but without the spiritual development. Apparently, if you’re fasting properly, it makes you want to watch cooking programs a lot. Who knew? Good job I’m not fasting properly, if that’s the case: we don’t have a TV at home.

So, there we go. The beginning of my career in Law. Let’s see what next week brings!

Review: Waxwork, by Peter Lovesey

Waxwork, by Peter Lovesey

Waxwork, by Peter Lovesey

This is one of the Sergeant Cribb series of detective stories set in the late nineteenth century, and in it, Sergeant Cribb is asked to investigate an investigation. Mrs Miriam Cromer has already confessed to the murder of her husband’s assistant (with cyanide, available on the premises as her husband is a photographer), and the trial is over. The hangman is on his way.

But then… doubts are raised regarding the validity of the confession. Did she really do it, or is she covering for someone else? The Home Office wants to know.

Sergeant Cribb – a far more efficient investigator than the policeman who conducted the original investigation – soon turns up some disturbing facts which cast doubt on the confession in all sorts of ways. There are inconsistencies in people’s stories, and what is the truth?

When Mr Cromer’s alibi for the time of the murder is broken and he attempts to flee to France, it seems that the confession was false, and Mrs Cromer was only trying to protect her husband (why?). But in order to extradite Mr Cromer from France, it will be necessary to pardon Mrs Cromer in order to charge him…

And that, for me, is the best part. The doctrine of Autrefois Convict (already convicted) which, together with Autrefois Acquit (already acquitted) is known as Double Jeopardy. A person cannot be retried for the same crime, on the same facts, if they have already been tried and either acquitted or convicted (unless by the request of the defence). So if Mrs Cromer is pardoned, and it subsequently comes out that Mr Cromer cannot have committed the crime because he has an alibi, what then? Even if it becomes obvious that Mrs Cromer really did do it, she can’t be tried again and will get away scot-free.

This is the plan that Mr Cromer, Mrs Cromer, and their solicitor (Mr Allingham) had hatched between them. Mrs Cromer was to confess then be pardoned in order for the police (carefully fed the facts to lead them up the garden path) to arrest Mr Cromer. Mr Allingham would then come forward with the alibi to free Mr Cromer. And even if the police knew that Mrs Cromer was really guilty, they would be able to do nothing about it.

The plan only comes to pieces when Mrs Cromer attempts to leave her husband carrying the can so that he will be hanged and she can marry Mr Allingham. Sergeant Cribb, who has uncovered the fact that the unfortunate photography assistant was not Mrs Cromer’s first murder, but her second, confronts the pair of them with this knowledge. Mr Allingham abandons the plan, refusing to go along with Mrs Cromer’s amendment, and confirming Mr Cromer’s alibi immediately, so that there is no need to pardon Mrs Cromer so that Mr Cromer can be extradited from France.

This is a very short book, and although the reader learns the facts at the same time as Sergeant Cribb, the twist at the end still comes as a surprise.

Another reason to love Law: Case law in emoticons

Just when I thought studying law could not possibly be any more fun (the high point of my week being a 3-hour Land Law exam [OK, that was a lie…]) what should cross my screen but…

Case law in emoticons!

I have to admit, I am a late adopter of emoticons. I tend to communicate information, not emotions – I’ve just about got to grips with the use of clots of punctuation to form little smiley faces. But case law in emoticons (@emoticoncaselaw on Twitter) is definitely a reason to figure out how to do little picture icon thingies.

To take the case of Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1, which is a stirring tale of influenza, Big Pharma, advertising, money, lies, and the devotion of a solicitor-husband. The official citation: [1892] EWCA Civ 1 hardly does justice to the drama and excitement of the case.

A silent film conveys the pathos of Mrs Carlill’s situation much better – but requires a cast of actors and an orchestra (somewhat problematic, especially in a law exam).

Emoticons, however, combine narrative and efficiency in one neat package:
@emoticoncaselaw: 📰😰💨😄😰📝💷💨😰😡#emotilawcontract

And what’s more, you can do it with felt tips.

I shall borrow my husband’s pens in time for Public, Contract and Tort exams next week. 😀