Butterworths’ book of sand

The Modern Law of Patents, Ashley Roughton, Phillip Johnson and Trevor Cook (eds)., LexisNexis Butterworths, 2010, ISBN: 9781405745185, Hard cover, 1921 pp. + ccxxxvi Price: £300

Reviewer: Christopher Wadlow (Professor of Law, UEA Law School, University of East Anglia, Norwich, England).

Let no one say the book reviews in this Journal are anything other than scrupulously objective. (I live alone in a fifth-floor apartment on Calle Belgrano, in Buenos Aires.) Butterworths’ Modern Law of Patents has 1921 numbered pages, of which 915 make up the appendices. (One evening a few months ago, I heard a knock at my door.) The front matter runs to an additional ccxxxvi (236) pages. (I opened it and a stranger stepped in.) It weighs 1.48 kg and is 4.5 cm thick. (Everything about him spoke of honest poverty: he was dressed in gray and carried a gray valise.) Comparable figures for the current (16th) edition of Terrell on Patents are 1206 numbered pages (of which 494 pages is statutory materials; there are also civx pages of front matter). Its weight is 1.86 kg and it is 6.8 cm thick.
‘I sell Bibles’, he said at last.
‘In this house’, I replied, not without a somewhat stiff, pedantic note, ‘there are several English bibles, including the first one, Wyclif's. I also have Cipriano de Valera's, Luther's (which, is in literary terms, the worst of the lot) and a Latin copy of the Vulgate. As you see, it isn't exactly Bibles I might be needing.’
After a brief silence, he replied, ‘It's not only Bibles I sell. I can show you a sacred book that might interest a man like yourself. I came by it in northern India, in Bikaner.’
He opened the valise and brought out the book. He laid it on the table. It was a clothbound octavo volume that had clearly passed through many hands. I examined it: the unusual heft of it surprised me. On the spine was printed ‘Holy Writ’, and then ‘Bombay.’
The key to the sheer extent of the Modern Law of Patents is surprisingly mundane, since its production has not been outsourced to India, nor its composition to the Deity. It is printed on unusually thin paper, so that all those thousands of pages can be accommodated in a single volume. Hence, the extent and comprehensiveness of the collection of primary legislative materials runs to 625 pages. Almost everything one could reasonably expect to find is here, and quite a few things one might not. The reader's interests in patents would have to be fairly esoteric, or directed outside the UK and Europe, before it could be said that anything significant was lacking, though your reviewer notices the absence of the text of one of his personal favourites, the 1963 Strasbourg Convention on the Unification of the Substantive Law of Patents for Inventions. There is also a useful selection of pleadings and precedents, though only contentious ones, yet the whole book is no thicker or heavier than Butterworths’ Intellectual Property Handbook. The Handbook, of course, is a great deal cheaper to buy, and the primary texts are more conveniently available online, so it is by the usefulness of the commentary, and not for the legislative materials, that the Modern Law of Patents is likely to be judged. The production and presentation are excellent, once one has accustomed oneself to the flimsiness of the paper, and there is a very useful pair of ribbon place-holders.
I opened it at random. The characters were unfamiliar to me. The pages, which seemed worn and badly set, were printed in double columns, like a Bible. The text was cramped, and composed into versicles. At the upper corner of each page were Arabic numerals. I was struck by an odd fact: the even-numbered page would carry the number 40,514, let us say, while the odd-numbered page that followed it would be 999. I turned the page; the next page bore an eight-digit number. It also bore a small illustration, like those one sees in dictionaries: an anchor drawn in pen and ink, as though by the unskilled hand of a child.
It was at that point that the stranger spoke again.
‘Look at it well. You will never see it again.’
There was a threat in the words, but not in the voice.
I took note of the page, and then closed the book. Immediately, I opened it again. In vain I searched for the figure of the anchor, page after page. To hide my discomfiture, I tried another tack.
‘This is a version of Scripture in some Hindu language, isn't that right?’
‘No,’ he replied.
When Butterworths stunned the profession by selling off the major part of their list to Tottel (now Bloomsbury Professional) in 2004, they kept back some of their IP titles, and even extended the range. First there had been the Modern Law of Copyright by Hugh Laddie, Peter Prescott, and Mary Vitoria in 1980, then Christopher Morcom's Modern Law of Trade Marks in 1999, and finally the Modern Law of Patents by Michael Fysh, Ashley Roughton, Trevor Cook, and Michael Spence in 2005. As for the future, the Modern Law of Passing-off is altogether too oxymoronic to frighten your reviewer.
Then he lowered his voice, as though entrusting me with a secret.
‘I came across this book in a village on the plain, and I traded a few rupees and a Bible for it. The man who owned it didn't know how to read. I suspect he saw the Book of Books as an amulet. He was of the lowest caste; people could not so much as step on his shadow without being defiled. He told me his book was called the Book of Sand because neither sand nor this book has a beginning or an end.’
He suggested I try to find the first page.
I took the cover in my left hand and opened the book, my thumb and forefinger almost touching. It was impossible: several pages always lay between the cover and my hand. It was as though they grew from the very book.
‘Now try to find the end.’
I failed there as well.
‘This can't be,’ I stammered, my voice hardly recognizable as my own.
‘It can't be, yet it is,’ the Bible peddler said, his voice little more than a whisper. ‘The number of pages in this book is literally infinite. No page is the first page; no page is the last. I don't know why they're numbered in this arbitrary way, but perhaps it's to give one to understand that the terms of an infinite series can be numbered any way whatever.’
Butterworths’ previous effort to break the monopoly of Sweet & Maxwell in patent law was the loose-leaf Patent Law of Europe and the United Kingdom of 1978, by Anthony Walton and Hugh Laddie, which simultaneously demonstrated the almost infinite erudition of Anthony Walton QC, and the utter futility of trying to explain the post-1977 regime in terms of pre-1977 English case law. It was abandoned in the early 1980s. But monopolies do not last for ever, and each of Butterworths’ three ‘Modern’ textbooks had a target, and an agenda to match. Laddie, Prescott and Vitoria was meant to be everything which Copinger was not, and succeeded brilliantly, at least in its first two editions, before it became more bloated than Copinger itself. Morcom hardly pretended to be the nemesis of Kerly, despite the latter's slowness to adapt to the 1994 Act, but it did establish itself as a viable alternative. So which of these two models does the Modern Law of Patents seek to follow?

The target of the Modern Law of Patents is obviously Terrell, and the defining feature of Terrell is its sense of continuity. The editors of the 16th edition can trace their succession back in line unbroken to Thomas Terrell himself and the first edition of 1884—a genealogy which many royal houses would envy. This gives Terrell its characteristic flavour. There is a pleasant musty odour to it, as of an ancient library filled with leather-bound codices and incunabula, all engrossed on parchment or printed on vellum. A library which has not been disturbed by too many modern accessions or accretions, and where all that subversive European stuff is kept decently out of sight in an annex, to be brought in by one of the servitors when needed.

In contrast to the aristocratic virtues and ancestral vices of Terrell, the Modern Law of Patents most definitely lives up to its name, and with a vengeance. Not only is it of the 21st century through and through, but the original revolution of 2005 has devoured its children, and in its second edition the book has already repudiated its founders and rewritten most of its own brief history. Several of the editors and contributing authors are new in their posts, more than a few of the old have been retired, and the text has been almost entirely recast, despite the absence of any really significant legislative changes. Though only 5 years old, it exemplifies anything but a regal succession from one generation to the next, unless the royal house in question be that of the Russian Tzars, or the early Roman Emperors.

The present edition of the Modern Law of Patents retains Michael Fysh as Consultant Editor, but the real work seems to have been done by the editorial team of Ashley Roughton, Phillip Johnson, and Trevor Cook. Named contributors to individual chapters are Mark Anderson and Victor Warner (transactions and licensing), Richard Davis (claim drafting), Johanna Gibson (future development), Ian Karet (claim construction), and Michael Spence (theory). This list gives some idea of the ambitions of the book, whose scope extends well beyond the familiar areas of patentability, validity, infringement, and defences, to include detailed coverage of office procedure (at Newport, in Munich, and under the PCT), ownership and employee compensation, enforcement and litigation procedure (including international issues), and an interesting new chapter on arbitration. There are chapters on border controls and SPCs, as well as European competition law. In all, the editors seem to have taken infinite pains to anticipate every patent-related problem which might occur in every kind of patent-related practice, and have set themselves to provide a correspondingly wide range of answers.
As we talked I continued to explore the infinite book.
‘Had you intended to offer this curious specimen to the British Museum, then?’ I asked with feigned indifference.
‘No,’ he replied, ‘I am offering it to you,’ and he mentioned a great sum of money.
I told him, with perfect honesty, that such an amount of money was not within my ability to pay. But my mind was working; in a few moments I had devised my plan.
‘I propose a trade,’ I said. ‘You purchased the volume with a few rupees and the Holy Scripture; I will offer you the full sum of my pension, which I have just received, and Wyclif's black-letter Bible. It was left to me by my parents.’
‘A black-letter Wyclif!’ he murmured.
I went to my bedroom and brought back the money and the book. With a bibliophile's zeal he turned the pages and studied the binding.
‘Done,’ he said.
The reduction in the number of active contributors, and their shared responsibility for the majority of the substantive chapters, seems to have improved the sense of purpose, and the consistency of treatment. Compared, especially, to Terrell, the focus is strikingly modern and Euro-centric. Most pre-1977 authority is simply discarded, though a short and unattributed history of patents and their institutions has been included as an Appendix, along with essays on theory and future developments, all of which are admirably brief and to the point. In the main body of the text, the preferred technique is to start with the European Patent Convention and the European (EPO) authorities where possible, and to fit the treatment of the Patents Act 1977 and the post-1977 English cases in around these. As a random example, at paragraph 2.22 the question of when a document becomes available to the public is addressed by reference to no fewer than 12 decisions of the EPO boards of appeal, but with no reference to the classic English case of Humpherson v Syer.1 It is only for areas where the EPO is silent, as for claim construction, liability for infringement, and litigation procedure, that UK law and practice necessarily takes prominence. One may wonder whether this reversal of the Terrell order of things is dictated primarily by the desire to be as ‘modern’ as possible, or whether the underlying rationale is that patent attorneys constitute a far more numerous readership than barristers and solicitors.

The authorial technique also differs from Terrell in the way it treats decided cases. Terrell, like many texts in the common law tradition, is often written around extended quotations from cases which are accepted as particularly important or authoritative. Perhaps because decisions of the EPO do not typically lend themselves to this kind of treatment, it is rarely adopted in the Modern Law of Patents, except in the chapter on claim construction, which is almost inevitably dominated by the direct quotation of lengthy passages from Lord Hoffmann in Amgen, if only because no one has yet worked out what they actually mean. One can hardly blame Ian Karet for that state of affairs, but, while we are on claim construction, some of his more gnomic utterances could surely do with more explanation and justification, such as that at section 4.12, where it is contemplated that the ‘factual matrix’ for interpreting a claim will not only include the common general knowledge, but may go further and include ‘matters … [not in the common general knowledge] yet were known to and taken into account by the skilled person’.

Taken as a whole, the Modern Law of Patents lives up to its name. It reads well, and consistently impresses with its grasp of detail, which is matched with a sense for structure. It is impossible on short acquaintance to say how accurate it is, as that must await the judgment of practical experience, but it promises well. It states its own case for a place on the practitioner's bookshelf, but its relatively compact dimensions would make it a useful companion at court, where the extensive primary materials would come into their own, or on one's travels.
I thought of putting the Book of Sand in the space left by the Wyclif, but I chose at last to hide it behind some imperfect volumes of the Thousand and One Nights.
I went to bed but could not sleep. At three or four in the morning I turned on the light. I took out the impossible book and turned its pages. On one, I saw an engraving of a mask. There was a number in the corner of the page—I don't remember now what it was—raised to the ninth power.
I showed no one my treasure. To the joy of possession was added the fear that it would be stolen from me, and to that, the suspicion that it might not be truly infinite. Those two points of anxiety aggravated my already habitual misanthropy. I had but few friends left, and those, I stopped seeing. A prisoner of the Book, I hardly left my house.
By what I am sure must be a coincidence, the number of pages of the main text of Butterworths’ Modern Law of Patents is the magical 1001, neither more nor less.2
Summer was drawing to a close, and I realized that the book was monstrous. It was cold consolation to think that I, who looked upon it with my eyes and fondled it with my ten flesh-and-bone fingers, was no less monstrous than the book. I felt it was a nightmare thing, an obscene thing, and that it defiled and corrupted reality.
I considered fire, but I feared that the burning of an infinite book might be similarly infinite, and suffocate the planet in smoke.
I remembered reading once that the best place to hide a leaf is in the forest. Before my retirement I had worked in the National Library, which contained nine hundred thousand books; I knew that to the right of the lobby a curving staircase descended into the shadows of the basement, where the maps and periodicals are kept. I took advantage of the librarians’ distraction to hide the Book of Sand on one of the library's damp shelves; I tried not to notice how high up, or how far from the door.
But there is no need to go anywhere near the National Library of Argentina, and perhaps it is safer not to do so. The Modern Law of Patents may not quite be as all-encompassing as Borges’ Book of Sand,3 nor does it even contain the equivalent of 900,000 volumes, but it is remarkably close to being a library in one volume, and it can be yours for a very reasonable £300. Just don't swap your Terrell for it, because Terrell, like Wycliffe, is part of our heritage too, and Luther's is not the only translation of the Bible, nor the best.


1 (1887) RPC 407, CA. Nor is Humpherson v Syer cited in the Table of Cases.

2 The main text (excluding front and end matter, and appendices) ends on page 1003, but as the first two pages are blank, and the text starts on what is supposed to be page 3, the page count is 1001 precisely.

3 The italicized quotations are all from Jorge Luis Borges, in Andrew Hurley (tr), The Book of Sand (Penguin Modern Classics, 2001). With apologies to the IPKat, , but your reviewer thought of the analogy independently. Great (feline) minds think alike.

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