The Patent Profession goes In House

Use of folded arms in advertising 

Yesterday I had the pleasure of attending the final day of the CIPA Congress at the Lancaster Hotel in Kensington. This is the annual gathering of patent agents. Its mainly organised by patent agents in private practice who are the back bone of the CIPA council but when I asked for a show of hands at the well attended last session for who was in house an extraordinarily high proportion did so.

We were discussing whether the Akzo European Court decision from 14 September 2010 that in house lawyers do not have privilege from disclosure of their communications in cartel investigations, could result in its loss in patent infringement actions. Commentators have focused on concerns that this decision implies in house advisers are less ethical.  The show of hands concerned me because it looks as if the private practice of patent agency is declining.

In commercial law, it is common for in-house counsel to give instructions in appropriate cases to private practice firms. This does not generally happen in the national patent prosecution (as opposed to litigation) market. Private practice in the UK is fed by overseas attorneys (not many at thus Congress) and local business without their own patent departments. There is not much marketing advantage to be gained for private practice agents to gain by networking with their in house counterparts. The in house teams want CPD and to learn about the latest developments and seemed to be prepared to pay CIPA to provide them. Sadly private practice is much less likely to do so and this suggests that it is suffering.  This is not good for the prospects of SMEs who do not employ their own patent agents. For them it is increasingly difficult to find a good attorney to work with them at a fair price.

Meanwhile if you want to train as a patent agent, go and look for a job in house.