Welcome to the Semi Final of the Oxford Intellectual Property Moot 2021

Thank you to the competitors who have made the moot such a success so far. The judges and observers have been impressed with the ability of the participants and standards of the moots. We would like to invite you to watch the semi finals of this years moot below.

Moot 1 will be lived streamed on The Law Faculty YouTube account

Moot 2 will be lived streamed on The Faculty of Law Outreach pages on Facebook.

We expect the streaming to start about 5 min prior the start time of the moot.

Observers are invited to watch the moots using this link for the semi-final page on the Google site. The live stream will shown here 5 minutes prior to the start of the moot.

Please view Moot 1 below

About the moot problem

· The moot is set in the fictitious, common law country, Erewhon.

· The appellants are two members of the same corporate family: Hotenhoffer Pharmaceuticals Erewhon (HPE) and Hotenhoffer Lilliput (HL). The respondent is the Republic of Erewhon.

· HPE developed a drug, ribocraftose, for the treatment of cystic fibrosis. This drug is sold under the name Prozurol. HPE was granted a patent in relation to ribocraftose, and since November 2012 has had regulatory approval to market it in Erewhon. However, the Erewhonian National Health Trust has not purchased Prozurol, citing the cost (ERD$99k per patient per year). Attempts to negotiate with HPE have failed.

· HPE was also granted a number of trade marks for PROZUROL. In April 2013, HPE assigned its entire trade mark portfolio (including the Prozurol marks) to HL for one Erewhonian dollar. On the same day, HL entered into a licence agreement with HPE in which HL licensed HPE to use these marks in return for an annual licensing fee of ERD$20m.

· Some years later, an employee of HPE became a whistleblower in relation to HPE’s corporate activities. He or she provided over 300 pages of internal documents to the Commissioner for Taxation.

· In July 2018, the Minister for Health made a keynote speech at a conference on access to medicine at the University of Erewhon. The Minister announced that the Comptroller for Patents had granted a compulsory licence in relation to the ribocraftose patent. The Minister also announced that the government had been looking into the practices of pharmaceutical companies, and that the Department for Industry and Trade would be applying to cancel all the marks held by HL, on the basis that the assignment of those marks had been for tax minimisation purposes and the marks had become deceptive. To substantiate these claims, the Minister circulated to conference attendees a 31 page dossier of HPE/HL documents (being a selection of the documents supplied by the whistleblower). The names of HPE/HL personnel were redacted.

· The legal issues raised in the problem cover three IP regimes:

1. The patents aspect explores the circumstances in which the Comptroller for Patents may issue a compulsory licence in relation to a pharmaceutical patent.

2. The trade marks aspects asks whether trade marks became deceptive when they were assigned to an offshore entity in the same corporate family, such that those marks should be cancelled.

3. The copyright aspects has two limbs: (i) whether there exists in Erewhon a public interest defence to copyright infringement; and (ii) the operation of the quotation exception in the Erewhonian Copyright Act 1997.

· In the trial of the case, Davies J held that the compulsory licence was validly issued; the trade marks became deceptive and are therefore cancelled; there was no breach of confidence by Erewhon as release of the documents was in the public interest; and there was nevertheless an infringement of copyright, as Erewhon could not defend its actions by reference to the public interest or the quotation exception.

· We are now in the Supreme Court of Erewhon hearing an appeal from this decision in relation to patents, trade marks and copyright. Leave to appeal was denied for the breach of confidence aspect.