Simay

I assume what Phil is referring to here is the fact that the late Eric Forth MP was for a period of time Bromcom’s parliamentary advisor. However, he was not Bromcom’s parliamentary advisor at the time of the letter in question. The letter was written in 2001 and Eric Forth was not appointed this position until 2003. It is true that it was decided that the Office was not persuaded on the information it had available to it that the Director General should intervene. However, what must be remembered in relation to this is the context in which that was decided. Although the Competition Act is dated 1998 it was not fully implemented into UK law at that date. The substantive provisions of the Competition Act 1998, (prohibition of restrictive practices and unilateral abuse of a dominant position) came into force just over a year after the Act was passed, on the 1st March 2000. Therefore, a decision not to intervene needs to be read in the context of 1999 when the Competition Act had not fully been incorporated into UK law. Actions or behaviour of a dominant undertaking that would warrant intervention in 1999 were significantly different to actions/behaviour that would warrant intervention after the year 2000, as were the powers available to the Director General of Fair Trading (DGFT).

1. The subject matter of this thread (essentially people’s views on Becta’s follow up review) is a matter which affects both MIS Suppliers and MIS Users. Thus, there is no reason why it should not be discussed on EduGeek forums. 2. Having said so, postings which are just ‘scathing with no substance’ should of course be edited out. My earlier post (27/01/10) was made as an explanation to issues raised in the thread. 3. Tonyoung – we would be happy to respond to your queries if you can disclose who you work for.

The two cases being referred to here are from a legal stand point are completely different, and at no parallel whatsoever. We hope to put the record straight for the benefit of EduGeek forum members. A. Bromcom Computers Plc/Frontline Technology Ltd & patent case: Frontline held a patent for a wireless registration system that was filed in 1992. There was no question about the legitimacy of Frontline holding the patent. After thorough examination by the European Patent Office (in Munich) the patent was duly awarded. By its very definition a patent grants to the patent holder ’exclusive rights and protection' for a set period (typically 20 years). This is done in exchange of providing full details to the public (sufficiency test) as how the new invention works. Therefore, a patent holder should not be accused of being 'restrictive' or 'monopolistic' when they are executing the exact purpose and the rights that they legally acquire through the patent. Any third party that deems the patent as being to the commercial disadvantage of its market is allowed to challenge that patent in the High Court on grounds of invalidity. Bromcom/Frontline wrote in 2002 to the Secretary of State Right Hon Estelle Morris to clarify the department's position. The reply received was totally supportive: defending the fact that Frontline "had the right to assert its rights" (please see the attached, document 1). The DfES made two attempts to attack the patent in question. However, on both occasions the High Court ruled that they had failed to revoke Frontlines patent. A settlement was reached at the end of 2005 and the DCSF now owns the patent. http://eduwight.iow.gov.uk/curriculum/ngfl/images/Patentsettlementletter.pdf B. Capita and OFT Cases: It wasn't until 1999 that Bromcom for the first time approached the Office of Fair Trading (OFT) in order to achieve interoperability between Bromcom’s EARS system and Capita’s MIS in schools. The OFT acted swiftly and instructed Capita to provide the necessary information and collaboration required for this (please see attached document 2). Later, when Capita announced in 2001 the imminent release of its SQL version of SIMS software, Bromcom approached Capita for the continuation of the arrangements that the OFT had set up. In Bromcom’s view Capita demanded unreasonable commercial terms, creating a restriction to free competition. Bromcom had no alternative but to resort to the OFT again. The OFT investigated this matter and directed Capita to provide a Voluntary Assurance (VA) - which came into effect in May 2002 – (please see attached document 3). The principles established in 1999 and 2003 were that Capita is dominant in the school MIS Market. This means that they are subject to obligations under the Competition Act. They must act in line with their obligations so that they do not undermine the market for other competitors. The recent complaint to OFT: In the recent complaint, Bromcom has put evidence to the OFT that Capita is falling short in adhering to the VA of 2003, and that Capita has allegedly adopted a wide range of commercial practises that are anti-competitive. Comparison / paradox of two cases ie Patent vs OFT: It should be obvious to any reader that the two cases have no parallel to each other whatsoever, other than the same market space and the companies involved. In the Patent case Frontline had legitimate rights to the patent that was attacked. In the OFT cases against Capita: the practices that Capita are alleged to have adopted run contrary to their obligations under the Competition Act. Having said the above, it should be noted that none of these legal matters have affected the working relationship between Bromcom and Capita which is underpinned by OFT 2003 VA and Technical Partnership agreement. Document 1.pdf Document 2.pdf Document 3.pdf

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