Technology Update Q2 2010
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Software suppliers' exclusions of implied terms: when are these enforceable?
To what extent can a supplier of off the shelf software get away with excluding statutory implied terms as to quality and fitness for purpose? In a recent judgment, the Technology and Construction Court found a supplier's standard exclusion clause to be unenforceable under UCTA and allowed the customer to recover £111,000 damages in respect of poorly performing software. The case does not create any new law, but serves as a useful recap of the rules and highlights some pitfalls, particularly for supplier organisations.
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Software patents: will the UK Intellectual Property Office follow the European Patent Office's recent Enlarged Board of Appeal opinion?
The Enlarged Board of Appeal of the European Patent Office has recently issued an opinion about patentability of computer programs. For the UK patent community the implications of this opinion are potentially significant, but it is not yet known how the UK courts and UKIPO will react to the opinion.
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Guidance from the OGC on negotiating Key Terms in ICT Services Contracts
The latest step in the evolution of the Government's model ICT Services Model Agreement is a negotiating guide published by the Office of Government Commerce ("OGC"). Although aimed at the public sector, many of the issues covered in the guidance will also be helpful to private sector organisations procuring technology services.
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Outsourcing: good practice for call centres dealing with customers with disabilities
Ofcom has issued good practice guidance aimed at call centres, following research highlighting the difficulties encountered by customers with visual and hearing disabilities. This guidance is useful in supplementing a business's existing accessibility policies and practices, and serves as a reminder of the wide scope of a service provider's legal duty to make "reasonable adjustments" to ensure its services are accessible to the public.
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Outsourcing: new processor model contracts now live - time to "spring clean" your contracts for transfers of personal data outside the EEA?
Businesses transferring personal data outside the EEA, for example in the context of an outsourcing, will need to review (and in some cases update) the contracts which they have in place with data processors in order to ensure continued compliance with data protection legislation. This follows changes to the relevant mandatory contract, which took effect in May. Among other things, the new clauses cater specifically for sub-processing arrangements.
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Outsourcing: no TUPE service provision change where no work in progress and no employees transferred
In a recent ruling the Employment Appeal Tribunal ("EAT") held that there was no service provision change for TUPE purposes where no work in progress and no employees were transferred. The decision will be of wide interest to legal practitioners: it is the first case on professional services to reach the EAT, and it highlights the fact that in such cases the transfer of work in progress will be a key factor in determining whether or not TUPE applies.
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Digital Economy Act 2010 given royal assent and draft anti piracy code published
The Digital Economy Bill received Royal Assent on 8 April 2010. The Act introduces some, but by no means all, of the measures proposed in the Government's 2009 Digital Britain report. It seeks to address issues facing the media and technology industries and implements measures in respect of online copyright infringement, public service broadcasting, the regulation of video games and the UK's communications infrastructure. It also introduces measures to tackle online copyright infringement, and Ofcom is now consulting on a draft code of practice which sets out the detail of ISPs' obligations in relation to online piracy.
For a summary of the Act see: http://www.olswang.com/newsarticle.asp?sid=103&aid=2965
For a summary of Ofcom's consultation the draft Initial Obligations Code, which runs until 30 July, see: http://www.olswang.com/newsarticle.asp?sid=103&aid=3031
Information security and data protection: the ICO publishes updated Regulatory Action Policy
The ICO recently published its updated Data Protection Regulatory Action Policy, confirming its targeted and risk-driven approach to enforcement action. For organisations which comply with data protection legislation the policy is arguably of academic interest only; it is however a useful read for in house lawyers and risk and compliance teams wanting to keep on top of the ICO's recently extended enforcement powers.
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OFT publishes recommendations on good practice in online behavioural advertising
The Office of Fair Trading (the OFT) has published its market study into online targeting of product pricing and advertisements by means of online behavioural advertising. The study makes various recommendations about this evolving area, including wider use of, and refinements to, the IAB's Good Practice Principles and further guidance from the Information Commissioner on when users' consent is required.
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Tax: the Emergency Budget - good for UK innovation?
The Emergency Budget on 22 June was full of headline-grabbing rate changes, but also contained some proposals that will be particularly relevant to technology businesses. We comment on some of the key points below.
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Competition: Rambus settles European Commission 'patent ambush' investigation
The Commission's long running 'patent ambush' investigation has been settled by Rambus giving pricing commitments on future licence royalties. Therefore no formal finding of a patent ambush exists, but the Commission's settlement decision indicates its views on what might constitute such an abuse.
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Public procurement: Commission investigates possible breach in the telecoms sector
The European Commission is pursuing Portugal over an alleged breach of the public procurement rules. The action relates to the direct award of telecoms contracts to three telecoms operators. The case highlights the importance - for bidders as well as public authorities - of ensuring technology and telecoms procurements are compliant with the rules.
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Stop press! US Supreme Court decision in Bilski Appeal
On 28 June the US Supreme Court issued its eagerly-awaited decision in the Bilski case. In short, the decision has not limited the scope of what is considered patentable subject matter in the US, and does not appear to indicate a change in the patentability of computer-implemented inventions or other methods. Software patents that have been drafted to comply with the "machine or transformation test" should still be patentable following this decision.
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New Legal Director joins Olswang's Outsourcing team
Olswang's Outsourcing Team has been further strengthened by the hire of Legal Director Matthew Bennett, former General Counsel at EDS.
Matthew provides specialist legal advice on technology, infrastructure and outsourcing transactions in the private and public sector. He advises at all phases of the transaction lifecycle, from early procurement discussions to complex renegotiations and disputes.
Before joining Olswang, Matthew was General Counsel for UK, Middle East & Africa for EDS, now HP Enterprise Services, the largest technology service provider in the UK. For five years he was responsible for the bidding and negotiation of some the largest outsourcing transactions in Europe. He also sat on the UK Management Board which oversaw the delivery of the subsequent contracts. This has given him insight into how terms of a contract and the commercial structures impact the delivery and overall success of a transaction.
Matthew says: "I believe you need to take a holistic approach to outsourcing deals, going beyond the terms of the contract to understand the financial transaction and the technology or delivery transformation that underpins the deal. After many years providing legal advice in-house I was looking for a practice that understands the wider commercial nature of outsourcing transactions. I found this in Olswang and was impressed with the approach that Nigel Swycher was taking with the Outsourcing Health Check initiative."
Matthew is using his years of supplier-side experience, and his insight as an in-house lawyer, to assist our customer-side clients in their outsourcing transactions. In addition, many smaller suppliers are now successfully competing with major players, and Olswang has a wide range of expertise across the practice to assist these clients in their growth.
The information contained in this update is intended as a general review of the subjects featured and detailed specialist advice should always be taken before taking or refraining from taking any action.
