There Ain’t ‘Alf Some Clever Bastards – Part One Hundred And One

Ian Shanks (1948 – present)

Whilst a laudable idea in principle, patents, which give the inventor some time to exploit the fruits of their inventive streak without giving them an everlasting monopoly, can be fraught with difficulties and often the only winners seem to be the legal profession. One area of difficulty is who owns the patent when an employee invents something during the course of their employment and, even if they concede ownership of the patent, are they entitled to a share of the profits made by the invention, over and above their normal employment benefits? The case of Ian Shanks has done much to clarify this grey area, in the UK at least.

I am a bit of an aichmophobe and so I have the greatest admiration for diabetics who regularly puncture their skin with a needle to get their shot of insulin or to test their glucose levels. If it was a matter of life or death, I am sure I would overcome my fear, it is only a state of mind, after all. Undeniably, though, what has helped diabetics immeasurably is the nifty little glucose testing kit which has simplified the process and improved the accuracy of the readings. This was the brainwave of Scottish scientist, Ian Shanks.   

Shanks was already a leading scientific pioneer, publishing the first paper on 3D televisions and being at the forefront of the development of liquid crystal display (LCD) technology. Around the summer of 1982 he wondered whether he could deploy LCD technology to make some form of biosensor. If you could suck a liquid, blood, for instance, between two glass plates and coat one of the plates with a material that broke up the molecules you wanted to measure, say glucose, then you should be able to measure its concentration.

Using the glass slides from his daughter’s toy microscope, Shanks played around with his idea until he had developed a working model. Excited by his discovery, he had the prototype for a cheap, pain-free device to test glucose levels, he took it to his employers at the time, Unilever. As Shanks was their employee, Unilever took ownership of the idea and filed for a patent, which was granted. And then they did nothing.

Grudgingly, in the 1990s Unilever began to sell off licences relatively cheaply to other companies to manufacture and sell the glucose sensors. They revolutionised the lives of diabetics but, for reasons best known to themselves, Unilever had missed the boat, earning around £24 million from the licences rather than a billion or so they would have amassed if they had taken the trouble to market and distribute the device themselves. As for Shand, apart from his salary and employment benefits, he got nothing and he wasn’t happen.

Now Section 40 of the Patents Act 1977 enters our story. Under this piece of legislation an employee, who invents something from which their employer derives an “outstanding benefit”, is entitled to a “fair share”. Suitably vague wording, a clause described by an Appeals judge as drafted “on Friday night and after closing time”, it nonetheless offered Shand some hope. He sued his employers and after many a knockback, it took him thirteen years to get justice, in October 2019 the Supreme Court found in his favour.

Lord Kitchin, in his judgment, opined that the rewards Unilever enjoyed “were substantial and significant, were generated at no significant risk, reflected a very high rate of return and stood out in comparison with the benefit Unilever derived from other patents”. Their lordships awarded Shand £2 million. He had got there in the end. The first award made under section 40 was not made until 2010.

Millions of diabetics around the world owe a great debt of gratitude to the genius of Shand.

If you enjoyed this, check out Fifty Clever Bastards by Martin Fone

And look out for The Fickle Finger, now available in e-book format.

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