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Should patent infringers be jailed?

Inventor of the wind-up radio Trevor Baylis has called for patent infringement to be criminalised. He tells OUT-LAW Radio why.10 Sep 2009


A text transcription follows.

This transcript is for anyone with a hearing impairment or who for any other reason cannot listen to the MP3 audio file.

The following is the text spoken by OUT-LAW journalist Matthew Magee.


Hello and welcome to OUT-LAW Radio, where we hope to keep you up to date with the latest news and the most fascinating features from the world of technology law.

My name is Matthew Magee, and this week we talk to Trevor Baylis, the man who invented the wind-up radio, about his idea to jail people who infringe patents.

But first, here are some of the top stories from OUT-LAW.COM, where you can read breaking technology law news throughout the week.

More than half of European gadget sites break consumer laws

and

EU businesses resist China trading over IP fears

An investigation of hundreds of European websites selling electronics has found that 55% of them appear to break consumer protection laws. Those sites are under further investigation, the European Commission has said.

The Commission conducted a 'sweep' of online electronics retailers to see if they complied with EU consumer protection laws. Problem websites most commonly misled customers about their rights and about the price of the goods, the Commission said.

EU consumer laws demand that sites provide contact information for the company, that information about the price and product is clear, and that clear information about consumer rights is provided.

This did not happen in 55% of the cases, the Commission said. Two thirds of the websites which had problems misinformed consumers or completely failed to inform them of their rights.
European companies are hesitant to do business in China because of fears that their intellectual property will not be protected, according to the European Union's Trade Commissioner, Catherine Ashton.

Ashton told a trade and investment fair in China that she was "encouraged" by efforts to improve protections there.  She said:

"Without the promise of protection for their innovations, European companies are sometimes hesitant to invest here. Protection of intellectual property, especially patents, is crucial if more companies are to bring their ideas and their technology to China."

Ashton stressed that investment into the EU from China and to China from the EU must flow more freely than in the past.

Those were some of the top stories from this week's OUT-LAW News.


He built objects from Meccano before he could write his own name, he built a diesel engine in a shed when he was twelve and brought music and life-saving information to the plains of Africa with his wind-up radio, but now Trevor Baylis has a new idea, and it's got nothing to do with nuts, bolts or dynamos: he wants people who infringe patents to go to jail.

Baylis last week wrote to the Government's Business Secretary Peter Mandelson saying that vulnerable lone inventors need to be protected from predatory corporations who use legal muscle to ruthlessly rip them off.

Few would argue with his characterisation of some of the problems inventors without significant business or legal experience can face, but not many have rallied to his call to criminalise patent infringement.

Already Mandelson has appeared to reject the plan and even the Institute of Patent Attorneys has said that it is a bad idea and would have unwelcome and unintended consequences.

Baylis, though, said that penalties for patent infringement should mirror those for theft.

Trevor Baylis: If I was to nick your car I could possibly go to jail but if I was to nick your products, your clockwork radio if you like, and start reproducing it, now you are a large corporation that has taken it from me, how on earth am I going to take you on? How on earth am I going to raise a million pounds today to take on some huge corporation? It might be my lawyer against your thirty lawyers if you understand me, and then you say to yourself well one, why bother to invent if, when the money rolls in, the investors are going to be rolled out, forget it. You know, why have a patents office? The only people at the end of the day who seem to come off with money in their hands or in their pockets are indeed the lawyers. Those ordinary men and women who have had the most amazing ability to change all our lives both socially and commercially, that are not getting any form of legal protection whatsoever.

It is Baylis's view that if we expect people to come up with brilliant ideas that improve our lot and generate wealth and jobs, we as a society need to protect them.

Trevor Baylis: There are so many inventors out there, similar to me, who have not got a clue what to do simply because they are not taught anything about it at school and two could not find the colossal sums of money that lawyers would demand if you wanted to protect your idea.

A particular concern Baylis has is for inventors who have their ideas ripped off by major corporations whose banks of experienced lawyers, he says, can steamroll the original inventor out of any deal and deny him his payday.

He wants infringement criminalised but was not clear on who, in that situation, would be the one to actually go to jail.

The Institute of Patent Attorneys has poured cold water on the jail idea. They say that patent infringement is not clear cut enough for such sanctions to be appropriate, that it is possible to infringe a patent perfectly innocently, and that inventors have to make fine judgments about whether their new invention falls within someone else's patent or not. It wouldn't be fair, they say, to criminalise those judgments.

It is also easy to see how the threat of jail would actually discourage people from inventing rather than encourage them, the exact opposite of the effect Baylis intends the measure to have. Again, he did not have a clear solution to that problem.

But almost as radical as the move to criminalise patent infringement is Baylis's idea that patent fees and litigation costs should be met by the public purse.

Trevor Baylis: I think that UK plc has got to stand behind the lone inventor. Look, if I spend £3,000 with lawyers or even five or even six or even ten or fifteen thousand pounds with lawyers to try and protect my idea, right, then it is going to be like a fortress. But if then somebody takes it and circumnavigates it and gets into it, you have had it, and that is what it is all about. Now, if they do that, and they do break in, and if you have got sufficient evidence that you were the creator of the original idea, then he or she would automatically have their day in court and the expense would be down to the nation, because the nation are the first recipient, in other words UK plc will be one of the beneficiaries if this invention comes to market.

Baylis may not have all the answers, but the problem he pinpoints seems to be a real one: despite all the legal protection afforded by intellectual property laws, inventors have a hard time of it.

Trevor Baylis: If you go back through time and I think this is very important, history over time tells you that most British inventors have died in poverty. I mean, you can go back as far as Roger Bacon who, he made a magnifying glass, and would you believe it, had notions about aircraft and powered vehicles.  This is 1214 to 92 now would you have believed this?  But he was imprisoned by fellow Franchescans for novelties. Roger Wallingford the astronomical clock disapproved of by fellow monks and rebuked by Edward III. William Lee the stocking frame refused patent died poor in France. So it goes on, John Cave, flying shuttle, his idea was pirated and he died disillusioned and poor in France, and so it goes on and on and on.

Baylis doesn't just come up with ideas about the law, he tries to actually help inventors left vulnerable by a lack of legal knowledge and experience through Trevor Baylis Brands, a consultancy which tries to help people with ideas turn them into businesses.

Trevor Baylis: I started my own organization called Baylis Brands to help inventors and we have helped currently, oh, about six thousand inventors in the last four years. As I say, we have helped six thousand people so far.  90% and less and less we let them down as it were, gently at the beginning. Look, it is a great idea however, you know, great minds think alike etc, etc but we don’t want people to give up inventing, and we have to make sure, as I said before, that when the monies roll in, they are not rolled out. The extraordinary thing is with inventors, that they don’t have to have gone to a university or anywhere, some of them are considered, in a lot of people’s minds, as being, you know, loony. Now I get the occasional person coming to me with a perpetual motion machine.  I don’t laugh at them, why? I simply say, no hang on, we won’t quote “perpetual machine” and I don’t go into physics or the chemistry or anything like that to try and talk down to them. I say, hang on, let’s call it a super efficient machine for the moment, then we look at it and we might find something in it, some gismo or gadget which is perfect for a lawn mover or hair dryer or something else, so that the patent is not necessarily a gismo gadget that they brought along but a component part of it inside.

It looks as though Baylis's suggestion is unlikely to make it onto the statute books any time soon, but perhaps the hullabaloo will at least draw attention to the inventors Baylis says he represents and society's duty to them.

Trevor Baylis: What I am saying here is that, if we look at this thing completely logically and we encourage our youngsters to have a go, then we have got to be there for them to prevent them from being turned over by a proverbial turkey.  We have got to be there.


That's all we have time for this week but if you want to hear more of Trevor Baylis and the formative experiences that led him to be an inventor including his tale of the swimming pool he built himself and then dived into from a great height then you can download another podcast where Trevor tells you all about it from the OUT-LAW Radio page.

Meanwhile, thanks for listening this week. Why not get in touch with OUT-LAW Radio? Do you know of a technology law story? We would love to hear from you on radio@out-law.com. Make sure you tune in next week but for now, goodbye.


How I became an inventor

Inventor of the wind-up radio, Trevor Baylis talks through the formative experiences that made him an inventor, including his childhood tinkering and building, his life as a swimming pool salesman, his time as a stuntman and the TV broadcast that inspired him to invent the wind-up radio.