From the Desk of JMB: An English Virgin® et al: Boldly Going Where No Man Has Gone Before

I have an admission to make. If I had to name a single individual who has captured my imagination over the past few decades, it would be Sir Richard Branson. I don’t know him personally. However, from the chutzpa he employed in 1967 when, aged 17, he sold advertising for his school magazine to the two local banks, through establishing the rather cheekily (or should that be “saucily”?) named Virgin Records and his subsequent successes in air travel and now space travel, spanning a period of close to 5 decades; he is everything that we in the IP profession can appreciate as a serial entrepreneur and visionary. In short, in the immortal words of Star Trek’s William Shatner, he has gone “where no man has gone before” (well, pretty much, anyway).

His achievements are all the more impressive as, throughout the early stages of his entrepreneurial career, as told in his autobiography “Losing My Virginity”, he operated on a shoestring budget, and generally was denied the backing of institutional banks that you would think might be available when, for example, setting up an airline. This, more than anything else, underscores his achievements, and his pioneering attitude of “Screw It, Let’s Do It” (this, coincidentally, being the name of another of his books.

So why do I choose to bring this up now?

The answer is BREXIT, the referendum that will be held in the UK on June 23 to decide whether to stay in the European Union or to pull out.

And the connection to Branson? you ask. His interview on Sky® TV which I happened to see when I was at the gym on February 19, was fascinating. The backdrop was the unveiling of the new Virgin Galactic spacecraft, but he was also asked about his opinion regarding BREXIT. One of the things that stood out in my mind was the following statement made by him: “In the Second World War, my father fought against the Germans. In the First World War, my grandfather fought, my great-grandfather fought 20 years before that,” with the implication that having an economic bloc with mutual interests among the member countries is a factor in preventing war. No one knows what would have happened in Europe during recent decades if there hadn’t been a European Union, but the fact is that despite Branson’s clear sense of adventure and penchant for taking risks when it comes to projects and entrepreneurship; when it comes to effecting change in the everyday lives of millions of people in many countries, his approach is clearly far more cautious and long term: stand back, consider the changes and their impact on society, potentially for decades to come, and then decide.

As an IP practitioner since the mid 1980’s, I have seen many changes. Potentially the largest change, which is almost upon us, is the advent of the European unitary patent. Admittedly, we are often frustrated with how long things take, with the bureaucracy, and by the improvements that seem to be so obviously called for and yet are painfully slow in coming. But when far reaching changes in the European market and the global clients of that market are to be made, caution is to be lauded. After all, among all of the questions surrounding the new European system, it is absolutely indisputable that a) there will be unforeseen problems after implementation, and b) after implementation, the situation will not be easily reversible. As Lewis Carroll wrote in Alice in Wonderland, “It’s no use going back to yesterday, because I was a different person then.”

As IP professionals, we must surely ask ourselves whether a BREXIT vote in favor of pulling out of the EU will impact implementation of the unitary patent, and if the answer is yes, in what way? This question is discussed in a reasoned blog article published on the IP Watchdog.

The point I am making, however, is that individually, we can, of course, be as adventurous and as entrepreneurial as we choose to be, provided we can follow through and we are prepared to fail. Changes within a global or regional system, such as the advent of the Unitary Patent System in Europe, or a British withdrawal from the EU, must be carefully considered, particularly as those making the decisions are generally not those that will pay the price of their mistakes.

As per the conversation between Alice and the Cheshire Cat in Alice in Wonderland:

“Would you tell me, please, which way I ought to go from here?’

‘That depends a good deal on where you want to get to,’ said the Cat.

‘I don’t much care where -‘ said Alice.

‘Then it doesn’t matter which way you go,’ said the Cat.

‘- so long as I get SOMEWHERE,’ Alice added as an explanation.

‘Oh, you’re sure to do that,’ said the Cat, ‘if you only walk long enough.”

The problem is, as opposed to Alice and the Cheshire Cat, “boldly going where no man has gone before” should mean going to a specific destination where, at the bare minimum, the benefits vastly outweigh the risks, and the price of failure is one that is reasonable.

As to the issues, as to whether BREXIT would be good or not and what its influence on the IP system might be , I prefer to take the advice proffered by Alice in Wonderland’s Duchess, namely, “If everybody minded their own business, the world would go around a great deal faster than it does.” That doesn’t mean that I don’t care, rather, that making such a decision in such a short time seems almost reckless. One could of course argue that it’s a referendum, in which each affected individual is being asked her or his opinion.  That may be, but as with any popular vote, there is much ‘spin’ and little real information.

OK, I hear you say, this is democracy. True, but here’s the difference: an elected government stands for re-election every 4 or 5 years  (depending on the country), and you hope that they can’t do too much damage in that time.

If, however, a withdrawal from the EU does, indeed, have catastrophic consequences, (as the doomsayers are predicting) it will not be easily reversible (if at all).  Doesn’t that warrant a little bit more time and consideration? After all, although Alice in Wonderland is a compelling story, with possibly the most well-known words being uttered by the White Rabbit  “I’m late! I’m late! For a very important date!” it would be as well for that story to stay firmly in the world of make-believe.

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