The Faculty has published Volume 14 Number 3 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.
This issue includes the following articles:
Nicholas McBride: Two Recent Cases on Liability for Omissions in Negligence (6/2023)
This short note summarises and criticises two recent English Court of Appeal cases on liability for omissions in negligence: Tindall v Chief Constable of Thames Valley Police [2022] EWCA Civ 25 and HXA v Surrey CC, YXA v Wolverhampton CC [2022] EWCA Civ 1196. Both cases show how the English Court of Appeal is still struggling to apply this area of law correctly almost eight years after the seminal decision of the UK Supreme Court in Michael v Chief Constable of South Wales [2015] AC 1732.
Markus Gehring: Border Carbon and the CBAM Mechanism’s legality in the EU Legal Order (7/2023)
Significant scholarship has been devoted to the question as to the legality of the proposed CBAM under international law, especially WTO law, the Paris Agreement and general public international law. Much less attention has been paid to the question of the legality of the measure in EU law and the EU legal consequences of possible violations of international legal norms. In analysing the recent case law of the Court of Justice, this article reflects on the elevation of combatting climate change to a general constitutional principle in the EU which allows the Union to adopt measures which would otherwise be doubtful in their EU legal legality.
Mateo Aboy, Kathleen Liddell, Cristina Crespo, John Liddicoat & Matthew Jordan: Response to USPTO’s Patent Eligibility Jurisprudence Study (Docket No.: PTO–P–2021–0032) (9/2023)
On July 9, 2021, the USPTO published a Request for Information notice in the Federal Register seeking comments on the current state of U.S. patent eligibility jurisprudence (Docket No.: PTO–P–2021–0032)). These comments will be used to prepare a study on patent eligibility under 35 U.S.C. § 101, focusing on how the jurisprudence has impacted investment and innovation, particularly in technologies such as quantum computing, artificial intelligence, precision medicine, diagnostic methods, and pharmaceutical treatments.
Our research group at the Centre for Law, Medicine and Life Sciences (LML), Faculty of Law, University of Cambridge, UK has been conducting evidence-based (empirical) research to assess the impact of the US Supreme Court decisions in Myriad, Mayo and Alice on biotech, precision medicine, diagnostics, artificial intelligence, and other computer- related inventions affecting digital health. Our key findings directly address several of the questions raised on the Request for Information and have been published as Patent Articles in Nature Biotechnology (enclosed with this submission).
Since 2015 the LML patent research group has been 1) examining the impact of three seminal cases (Myriad, Mayo, Alice, and follow-on case law) by developing evidence-based (empirical) IP studies designed to understand the impact of these decisions, and 2) conducting a comparative legal analysis across the US and Europe on the patentability of information age inventions affecting precision medicine (biotech and computer-related inventions).
These evidence-based IP studies include empirical legal methodologies at three levels of analysis: 1) broad-level impact analysis (before & after patent landscape effects), 2) claim-level impact analysis (before & after claims, claim scope, claim strategies, claim formulations), and 3) prosecution-level analysis (before & after prosecution timelines, prosecutions strategies, effects on types of entity).
In this response to the USPTO Request for Information we report a selection of relevant results from our evidence-based studies which analyze the impact and effect of these seminal decisions. We offer empirical evidence to on-going legal debates about the significance of these cases on the changing patent landscape involving precision/personalized medicine inventions, including patents claiming 1) nucleic acids, 2) nature-based products, 3) biomarkers, 4) medical correlations and relationships, and 5) algorithms, AI and big data techniques.
Pedro Schilling de Carvalho: Retaining Influence in Post-Brexit International Financial Regulation: Lessons from the UK’s FinTech Framework (10/2022)
A common rhetoric has emerged among UK authorities when it comes to how to deal with a potential loss of influence in the regulation of financial services after Brexit: as divergence from the EU increases, it will be necessary to retain the UK’s influence as a rule maker through an enhanced engagement via international standard-setting bodies (ISSBs). This article argues that placing an excessive focus on the role of ISSBs to mitigate the UK’s loss of influence might be misguided, based on an analysis of the UK’s past relationship with these regulatory networks, alongside an assessment of their historical shortcomings and increasing limitations. Furthermore, this article advances the argument that the UK FinTech regulatory approach might serve as a successful complementary template for influence, combining a domestic framework with the development of a domestic-led network. For that purpose, this article compares initial responses to FinTech regulation at the UK, EU, and international levels, focusing on the Financial Conduct Authority’s regulatory sandbox and Global Financial Innovation Network to show how the UK’s regulatory ethos was effectively exported, constraining the options available to other countries while also framing the debate at the international level.
Brian R. Cheffins & Bobby V. Reddy: Thirty Years and Done – Time to Abolish the UK Corporate Governance Code (13/2022)
A 1992 Code of Best Practice developed by a committee Sir Adrian Cadbury chaired revolutionised UK corporate governance. The Code, which introduced non-statutory best practice provisions with which listed companies could choose not to comply so long as they explained why, has evolved into the more expansive UK Corporate Governance Code of today. This paper argues that after three decades it is time to do away with the code approach and ‘comply-or-explain’. Much of the current Code’s content is now irrelevant, and disclosure and compliance expectations have escalated to levels that create substantial net costs for companies. Additionally, the Code is now being used to address ‘stakeholder’ issues for which the Code’s shareholder enforcement dependent comply-or-explain mechanism is poorly suited. The Code correspondingly should be abolished, with some key points it addresses being dealt with instead by new disclosure requirements under the Financial Conduct Authority’s Listing Rules.
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