Blissful Solitude

The IP Section of the Law Society Library

It is often suggested that it is better to work in communal spaces rather than alone. Some of the most freely available communal spaces naturally include libraries and if you are a solicitor, you are entitled to use the Law Society library. I had reason to paddle down there today and was surprised by how quiet it was. Therefore, there was no difficulty in accessing the single copy of the White book and if I had been brave enough to seek access to the idle terminals, no doubt I could have seen even more. While the library is the most work-related, the building at 113 Chancery Lane offers all sorts of other coffee and catering delights as well as meeting rooms. They are so under used by Solicitors they have to be offered to the paying public for events.
If you cannot get to Chancery Lane the services of the lonely librarian are still available to you at the end of a phone or email.

From Portal Tax to Portaloo? Relief may be in the offing ...

"Solicitors could claim back tens of thousands of pounds in tax using capital allowances, but must do it by April 2014" is the exciting title of a circular which this blogger has recently received from Portal Tax. From this release, it appears that

If your practice isn't
flush for cash, why
let the taxman get it? 

" ... The [UK] 2012 Finance Bill [which appears to have been an Act since June 2012] introduced a transitional period which runs until April 2014. If a commercial property is sold within this period then it can be treated in the same way it would have been previously. Before April 2012 you could choose when, and whether, you made a capital allowances claim on your business. The owner does not have to make a claim for capital allowances before he/she concludes the transaction, but they will have to agree to the fixed value requirement within 2 years. The next time the property is sold, even if it is the very next day, then the new rules apply and capital allowances must be considered as if it were post April 2014.

If the current owner acts now they can claim the full capital allowances back for themselves. If they do nothing, a future owner of the property may benefit instead. Portal Tax has helped businesses to maximise any capital allowance claims on their commercial property - on average, £105,000 for each business in outstanding capital allowance for items ranging from fire alarm systems, to heating, to air conditioning.

Data compiled by Portal Tax has revealed the top ten items by volume on which tax has been claimed back.

1 Ironmongery (including closers, latches, locks, etc)

2 Sanitary ware (including WCs [no doubt providing relief in more than one sense of the word ...], basins, second fix pipework etc.)

3 Power, Data and Lighting Fittings (including sockets, switches etc.)

4 Floor Finishes (including carpet, vinyl sheet etc.)

5 Hot and Cold Water Equipment (including pipework, tanks etc.)

6 Signage

7 Wall Finishes (such as ceramic tile splashbacks)

8 Fire, Communication and Security Systems (such as alarms, cameras, other equipment)

9 Heating, Cooling and Ventilation systems (including air conditioning, radiators, boilers etc.)

10 Workplace Lighting (usage dependent)

Portal Tax estimates that 96% of businesses that own their own properties, or commercial property owners, could be owed a refund. ... In one case allowances worth as much as 68% of the purchase price were found. ...”

There's nothing to suggest that these attractions and advantages are open to solicitors only; one rather hopes and imagines that patent and trade mark attorneys, IP consultants, innovation gurus and the like would equally qualify for these tax breaks.  There may be a considerable number of readers of this blog who own and may be disposing of their work premises, particularly those who work at home or in that cosy shed at the bottom of the garden.  They may also be deterred from maximising their tax efficiency for any number of reasons, including

• the cost of their accountant's services
• inability to understand more than about one word in every ten that their accountant says to them
• time spent dealing with accountants is time spent not dealing with clients
• the cost of complying with the accountant's insatiable demand for miscellaneous pieces of paper and information before they can even find out whether the tax relief adds up to more than whatever their accountant charges them
• the nervous strain, tension, pain and suffering of having to deal with their accountant

and so on.  But seriously, if there is any benefit to be derived, this avenue of relief is surely worth exploring.

Where Charity really begins ...

Many are the times this blogger (the son of a partner in a two-man practice) has heard legal practitioners come out with complaints about the reluctance of clients to pay, and indeed the expectation on the part of clients that, if they're not troubling their professional adviser too much, there's no need to pay.  On the one side the dialogue contains lines like: "Can I just ask you a quick question? It won't take you a minute to answer", or "To save us both the hassle of having to meet in person, I've just received this email and I'm not sure what it means: can I just read it out to you over the phone so you can clarify it for me ...".  On the other side, there's the classic: "What does he take me for --  a **** (insert number of asterisks corresponding to the preferred adjectival epithet) charity?"

Well, some clients do regard their legal representatives as charities --  for the very good reason that they are. This in turn raises the question whether the serried ranks of solo and small-scale IP practitioners should not also be giving serious consideration to the use of a charity as all or part of their business model.  After all, patent attorneys see more than they'd like from impecunious inventors and underfunded entrepreneurs, while struggling artists, composers, musicians, designers, dramatic performers and authors have spread their favours widely across the various IP professions over the past decades, with the latter often having little to show for it.

Incorporating the practice as a charity: saves all those
headaches about divvying up the partnership profits!

Anyway, from a recent Law Society Gazette post, "Charity sets up its own law practice", the following appears, in relevant part:

"A Leicester charity has become the first such not-for-profit organisation to set up and own a law firm. Castle Park Solicitors was set up as a community interest company with the help of National Lottery funding by local charity the Community Advice and Law Service.

The firm was set up to provide employment, immigration and family services to people ... who before this year’s legal aid cuts would have been eligible for public funding. It also offers mediation and collaborative law services.  ...

In the long term, any profits from the firm will be returned to the charity to support free advice in other areas of social welfare law.

The Solicitors Regulation Authority granted a special waiver of the separate business rules to the Community Advice and Law Service allowing it to set up Castle Park Solicitors.

Christine Palmer ..., employment solicitor at the firm, said: ‘Castle Park is run as a business separately to the charity with the same financial pressures that most law firms face today [Well, that rather reduces the appeal of this business model]. We have an ethical ethos [One rather hopes that all professional service suppliers do]. Unfortunately we cannot give the service for nothing but we have set our rates very competitively. Our aim is to help those people who can no longer get legal aid and simply cannot afford to pay for full private legal services' ...".

Does ownership by a charity, or even turning one's practice into one, have anything to commend it to the IP practitioner? Let's hear from you!

Reaching the Cap in the Intellectual Property Enterprise Court

A splendid Cap

For claims started after 1 October 2013 it is going to be a little easier to reach the £50 k and £25k caps on Practice Direction 45 have just got a bit richer and are in rounder numbers. You can find them in the Practice Direction Making Document
costs for trials and enquiries as to damages respectively. This is because the Tables which set out the maximum costs of each stage as set out in CPR
and below.  





Table A

Stage of a claim                        Maximum amount of costs
Particulars of claim                                                    £7,000
Defence and counterclaim                                         £7,000
Reply and defence to counterclaim                           £7,000
Reply to defence to counterclaim                              £3,500
Attendance at a case management conference           £3,000
Making or responding to an application                     £3,000
Providing or inspecting disclosure
or product/process description                                £6,000
Performing or inspecting experiments                       £3,000
Preparing witness statements                                   £6,000
Preparing experts' report                                         £8,000
Preparing for and attending trial and judgment         £16,000
Preparing for determination on the papers               £5,500

Table B
Stage of a claim                                                          Maximum amount of costs
Points of claim                                                              £3,000
Points of defence                                                          £3,000
Attendance at a case management conference                £3,000
Making or responding to an application                         £3,000
Providing or inspecting disclosure                                 £3,000
Preparing witness statements                                        £6,000
Preparing experts' report                                             £6,000
Preparing for and attending trial and judgment              £8,000
Preparing for determination on the papers                    £3,000

Who is that behind my Advocate?

In court its important to be sitting in the right place. There is an interactive civil court scene provided here by the Judiciary of England and Wales ,who also provided the nice illustration of a judge (though he is hearing a criminal case - no red sashes in the Intellectual Property Enterprise Court).

What that judge sees is an Advocate or more for each party and behind them sits a lawyer or some representative from the law firm. In Scotland it has just been announced that they intend to abolish their rule that an agent of the client, normally a solicitor sits behind the advocate in court. It is not an absolute rule in the courts of England. Obviously it does increase costs if there are too many people earning money and doing nothing useful. Nevertheless litigators regulated by IPreg are under a duty to attend or arrange for the attendance of a responsible representative throughout any Court hearing attended by Counsel (3.4 of the Litigators Code). Now clearly in a case where a litigation practitioner is acting as Advocate there is no need and thankfully no duty to have someone to watch your back. It is of course useful to have an ally in court and someone to make notes and pick up the papers you have dropped is convenient. This is an  anomaly between the IPReg rules and the SRA code Chapter 5 which now reduces things to principles rather than prescriptive rules.

Soon we can expect Barristers to get the freedom from their regulators to get down to some real solo litigation but in court his rules currently allow him to satisfy himself that a redundant solicitor or patent agent is uneccessary, or more precisely

706. A self-employed barrister who is instructed by a professional client should not conduct a case in Court in the absence of his professional client or a representative of his professional client unless the Court rules that it is appropriate or he is satisfied that the interests of the lay client and the interests of justice will not be prejudiced. 

Come on IPReg, you seem to be out of line!

Script for introducing a Witness in an English Civil Court

That may seem an odd title for a blog post. It is there because it illustrates an item of information an unversed advocate may be ignorant of. If you Google it, you will not find the answer but you will find litigants in person fruitlessly making similar enquiries on those useless forum sites that Google will insist on on indexing. Since you may be reading this for the script I had better provide it for a civil proceeding before proceeding to my rant on advocacy education

The Witness is called to the stand and the court associate will ask him if he wishes to affirm or swear. If a special holy book may be required for any of your witnesses best to mention this to the associate in advance.
Advocate: Your name is [Joe Smith - these bits in square brackets should match the information you put in that Witness' statement that is in the trial bundle]
Witness: Yes
Advocate:Your address is [ 1 High Street, Midtown]
Witness: Yes
Advocate:Your Job is [Bricklayer]

its not like this in an English court. For info

Witness: Yes
Advocate: You have made a statement in this case on [date] which appears at page [25] of the bundle. Can I ask you to turn to that now. pause Is that your statement?
Witness: Yes
Advocate: Please turn to page [27] is that your signature?
Witness: Yes
Advocate: Are there any corrections or alterations you want to make to that statement
Witness:  No  (If there are make sure you have given the other side details in advance)
Advocate: I submit [Mr Smith] for cross-examination.  sit down

The real reason why Patent Agents do not exercise their rights of audience in the soon to become The Intellectual Property Enterprise Court (it is the Patents County Court until 1 October 2013 when  the Civil Procedure (Amendment No. 7) Rules 2013) and provide access to justice at a proportionate cost is that they are inhibited by ignorance and lack of confidence.

So we have education and training. This is expensive so you want to be certain of its value.

Last month I attended a short lecture on advocacy given by an English barrister from which I learned that in his opinion at the Nuremberg trials, Sir David Maxwell Fyfe QC was more successful in cross-examining Herman Goring than Justice Robert H Jackson. This was because he asked something called closed questions. This lecture did not leave me any more able or confident in my excursions in advocacy. However this month I attended a course run by a trainer (also a qualified lawyer but principally now a teacher so he was not even indirectly looking for my instructions) and learned what the first speaker meant. This is because the second course was run interactively and we had ample opportunity to practice and be critiqued on our performances. We received the necessary signposts to the material that we needed to learn in the CPR. While the first speaker mentioned case theory, the second taught me to use one. The necessity of preparation came across much more effectively than if we simply listened to a speaker telling us that preparation is necessary. We came away understanding how the preparation each of us had invested gave different results. We also saw that some lucky people have more inherent credibility than others, but the rest of us learned how to catch up fast.

The first lecture was recorded so now I can re-listen to it and get about 200% more out of it.

The downside is that the second course cost me the Filemot training budget for this year and next as well as three days. Nevertheless if you get an opportunity to attend a course with Peter Lyons of CPD Training, try it.  Why? Because its excellent value. As well as the training there is an assessment day which ensures you consolidate the work you did on those days. Indeed when you consider the requirement for an eminent assessor and SRA and IPreg endorsement, the cost is proportionate to the overriding objective of education in justice.

On Examinations, Boards, Independence and Diversity

I have been reading the exchange between CIPA and IPReg over the creation of the new patent examination board (PEB)  for 2014 onwards. Now that ITMA have made other arrangements for the qualification of new trade mark agents in the UK,  the JEB or Joint Examination Board is due to die. Some who have been unhappy with its results may rejoice.

If you are a CIPA member you can find the exchange in the latest CIPA journal at Page 359. The whole sequence is provided by IPreg for all here.  I read it as acrimonious and critical. Its not a correspondence I would find encouraging as a prospective new entrant to the profession. Since there is nothing there for 2014, candidates who fail to qualify as UK patent agents this year might be concerned. Most will be focusing the European Qualifying Examination administered *independently* of the Institute of Professional representatives before the European Patent Office (epi )by the EPO. The names and faces of the lay members of the European structure are not immediately obvious to me.

I was also sent yesterday a link to the Draft 2014 Business Plan of IPreg and the Annual report 2012 which is a nicely laid out document with the previous 2012/3 Business Plan  at the end of it and a separate Education Plan.  The Draft plan does not refer to education at all and the budget seems overwhelmed by the possibility of another disciplinary hearing. Now CIPA have appointed an education officer but we apparently need a Chairman of an Independent PEB to write letters to IPreg and the PEB needs to have lay members who have control so no more will senior partners be able to appoint their sons and daughters and train them to follow in their footsteps. Patent Agency is to be lay-controlled. I am not sure what laity is likely to be interested. Are they educationalists who profit, Patent Office officials who suffer from patent agents, inventors who pay them, infringers who pay them for justice, the public who want drugs and mobile phones on the cheap and might prefer there were no patent agents or patents at all, politicians or diplomats. Who should have this job and how can they set an exam if they are laity?  I clearly don't understand the system at all.

Nevertheless as a solo practitioner it might be fun to take on a trainee. Today that is impossible, because you would be expected to pay for their professional development but you know their long term career is not with you. Any trainee here would have an interesting year or so that would benefit them and their next employer. There is not a great incentive to employ them to send them off on expensive out of office PEB/IPreg prescribed courses. So this avenue into the profession that might allow some diversity is closed at present while we squabble about which notepaper to write letters on. Thank Heaven for the gloriously efficient European Patent Academy. It is not independent but it is getting on with the job and its prices are affordable its just a shame that European Patents are not affordable for many of our clients.

Would you employ a trainee today?

Who should or does chair the PEB?