A question of Choice - Solicitor and ‘Trade Mark Attorney’

Reviewing the recently published IPO booklet 'Choosing the Right IP Adviser' I noticed at page 7 the following paragraph about Trade Mark Attorneys:

No one in the United Kingdom may use the title 'Registered Trade Mark Agent' and 'Trade Mark Attorney' unless he or she is on the official list of qualified practitioners (the Register of Trade Mark Attorneys).

As far as I'm aware this is actually wrong. It is the word Registered Trade Mark Attorney that is reserved. A solicitor may refer to him or herself as a Trade Mark Attorney.

ITMA's Trade Mark

The right to use the term registered trade mark attorney derives from ITMA's trade mark (no 2442739). When ITMA applied to trade mark the term ‘Trade Mark Attorney’ the Law Society opposed the application. The matter was eventually settled between the two bodies on the basis that ITMA would limit the application in the following way:

This certification mark shall not prevent a person who is a solicitor, a firm of solicitors, or a body recognised under Section 9 of the Administration of Justice Act 1985 from using the term "Trade Mark Attorney".

Has anything happened to change this or is the IPO's booklet in need of amendment?

Solicitors wanting to become Registered Trade Mark Attorneys

I don't know what it would take under the new rules introduced by IP Reg for solicitors to become registered trade mark attorneys. While I would be happy to take some steps to become a registered trade mark attorney, it would not extend to sitting extensive exams. I don't see why I should given that I have extensive experience of registering trade marks, have specialised in IP law for many years, hold a post graduate qualification in IP law, read journals etc. Also I can call myself both a solicitor and trade mark attorney...

Unless I'm mistaken, when the Joint Examination Board was set up in 1990 by ITMA and CIPA – that is, before the new syllabuses were introduced - patent attorneys were automatically granted the title of trade mark attorney, without the need to pass any exams, so why not do the same for solicitors with appropriate experience now?

I just wish the Law Society had reached an agreement with ITMA for solicitors specialising in IP law to be able to become registered trade mark attorneys in a practical and painless way because it would cause less confusion for consumers. However, in the meantime, it would help if bodies like the IPO understood the fine distinctions and didn't put out wrong information to the public.

A question of choice

Choice of IP adviser can be hard, when from a distance
they all look the same to the paying customer

"Choosing the Right IP Adviser" is the title of this short piece by Mike Barlow OBE, once head of BP International's Global Patents and Technology Group but now running a sole IP consultancy, Fairoaks IP. Mike is one of the latest batch of IP experts to gain the benefit of exposure to a fresh readership of prospective clients from the UK Intellectual Property Office's IP Insight online magazine. Mike writes:

"November saw the publication of the IPO's latest offering in its 'Healthcheck' series. Entitled 'Choosing the Right IP Adviser (467Kb)', it sets out the options available and key questions to ask before commissioning IP services.  This booklet is designed to help you become an informed consumer of the IP Adviser services you require to obtain registered rights. It:

* contains an overview of the potential sources of IP services available (including certain sources of reliable free advice) [almost: it contains an overview of the potential sources of free advice but doesn't specify which are the reliable ones ...];
* suggests a number of questions you should ask before engaging your adviser;
* provides answers to a number of commonly asked specific questions;
* provides a list of useful contacts 

... The purpose of this booklet is not to recommend any particular adviser or indeed group of advisers but rather to help you become an informed consumer of the services you require to obtain registered rights.

... The booklet begins with an overview of the potential sources of IP services available (including certain sources of reliable free advice) and then suggests a number of questions you should ask yourself before engaging your adviser. At the end, answers to a number of commonly asked specific questions are provided.

Finally before beginning the process of choosing an adviser it is well worthwhile getting at least a basic knowledge of the various IP Rights which are available (patents, copyright, design rights, trade marks) and the requirements for getting them.... 

"Those new to IP often find it difficult to get the advice they really need and it is all too easy to end up with little to show for your money. This new publication draws on the experience of experts to provide a roadmap for small businesses to find and get the best out of their advisers".

Readers of the SOLO IP blog may wish to take a look at this short guide and provide their own glosses on it when providing preliminary information of their own for prospective or even current clients.  Here's a bit which readers may resonate with:

"You should try and choose an adviser with whom you can empathise and communicate [If only practitioners could choose clients on the same basis! Seriously, communication faults lie at the heart of so many poor practitioner/client relationships and it's an area in which many people both sides can improve their performance]. This will be a matter of personal taste because you are entering into what may well be a long and close business relationship. If at the outset you suspect difficulties then you probably need to choose someone else. Not everybody gets on with everyone else and there is a wide range of advisers available. Whoever you choose it will almost certainly involve a balance between personal empathy and professional competence – the two do not always go hand-in-hand. You also need to be happy that the adviser’s abilities and work patterns fit in with yours, particularly if working with an overseas adviser who may not be a native English speaker, may be in a different time zone, have different holiday periods [or, in the case of solo practitioners, no holiday periods ...], etc."

A temporary agency for IP professionals: prospects and problems?

Earlier this week I posted on the IPKat an item on IPHire, which describes itself as "a temporary agency for IP professionals, and here we are talking professionals at all levels - assistants up to senior advisors".  According to IPHire,

"When you are an employer, you should not only think parental or maternity leave, but also if you suddenly have a big project where you need extra help, but you know that the post will finish when the job is done, just look here". 

I added that. for anyone who is a job-seeker, a newly qualified candidate or just looking for a new challenge and maybe wants to have a European post on his or her CV, all they had to do was add their name to the database here.

While it's obvious that this service, or something like it, could be very useful for SOLO IP readers who run small practices.  If more work comes in than can be easily handled, or if sickness or holidays put unpredicted pressure on the diary, it could be useful to identify and recruit some extra support.  But when there isn't work coming in, and a practitioner has unproductive time on his or her hands, it could be a good way of filling in someone else's gaps.

What I'm curious to know is

• Is IPHire the only web-based service or are there others?
• Have any SOLO IP readers any personal experience of this or other services that might be valuable if shared with others?
• What problems and pitfalls should users bear in mind if offering or seeking services this way?

Sex sells

A couple of months ago, I wrote a post about Chrissie Lightfoot, The Entrepreneur Lawyer. From today, you can buy the e-book version of her guide to life, the universe and everything for the lawyer or lawyer2b, the naked lawyer (to which I have contributed a slightly rambling foreword).
I remarked back in September that, having read volume 1, I knew it wasn't for the faint-hearted. Now that I am acquainted with the other volumes, I can only say that you need a robust constitution if you're to let this book into your life. Chrissie has a talent for communication, but employs techniques not previously encountered in the legal world - or what she refers to as "law law land". But she's trying to sell selling to lawyers, and that's bound to be a tough assignment, because while we might know a bit about marketing (and I am coming to understand the difference between that and selling) most lawyers know little if anything about sales. One thing, though, that everyone knows about the subject: sex sells.
That's not to say that lawyers should emulate Corri Fetman. It could only work once, anyway. But selling selling to lawyers, well, that's another matter - a different market altogether. There are many ways to sell something, and sex is only one of them. Other gurus are trying other ways to turn lawyers into salespeople, but this is Chrissie's approach. If it's not for you, simply make your excuses after checking out the outline of the book and leave her website. Personally, between consenting adults, I reckon it's a great way to treat the subject.

Shall We CAP Damages in PCC Litigation?

The IPO is conducting a short consultation on the implementation of the limit proposed in the Jackson Review on the financial remedies available in the Patents County Court. Originally the Intellectual Property Court Users Group proposed that this should be £250k but upped that to £500k before their final report in July 2009. This indicates a certain arbitrariness about the figure and the IPO would like some justification.

To put a Cap on the Damages Consultation?

Paul Cole has circulated members of the Patent Agent Litigator's Group encouraging us to argue against the cap. We do not need one. He points out that the IPO has no cap in its patent infringement jurisdiction under section 61(3) of the Patents Act 1977. However that jurisdiction is pretty moribund as both parties need to agree on going to the IPO.  The IPO does not deal in trademark infringement at all.

The new Patents County Court Judge has had his say  in an early case, Alk-Abello v Meridian which he kicked out of his court to the High Court.  He opined:

• Why does value matter? The answer in my judgment is to emphasise what the Patents County Court was set up to achieve. The decisive factor is that the court was set up to ensure that small and medium sized enterprises, and private individuals, were not deterred from innovation by the potential cost of litigation to safeguard their rights. With the new procedures in place I intend to devote my energies to making them work in order to achieve that objective. However this is not the case in which to do it. 

In this case an injunction was in issue. Indeed in my experience of David and Goliath litigation, the Injunction is ALL that matters. Surely the PCC is not just for SMEs battling it out amongst themselves. To me its most important role is in the David and Goliath matters. David cannot usually ask for an interlocutory injunction for fear of a cross-undertaking in damages. If this limit affects that cross-undertaking £500k is still enough to have David cowering. However the PCC can offer speed and simplicity to a final injunction if appropriate with a manageable costs cap.

The IPO have offered an Impact assessment based on "cost savings for business through re-positioning cases previously heard in the High Court into the cheaper County Court (achieved by limiting the value of claims heard in the lower court)". This is not a consequence of the Cap on Damages it is a consequence of the already introduced Cap on Costs, which is BRILLIANT.  Do we need to go this extra step which could come back to haunt us. The Judge has already clarified the cases he wants. Why waste time with a Cap that could be wrong. Forget it. The damages are what the damages are shown to be.

We cannot expect the IPO to go reading blogs so we have to respond to the consultation. Comments would be greatly appreciated.

Christmas CPD 15 December 2010

Photograph  by Diamond Geezer

Christmas is a great season for lectures and if you would like some IPReg CPD hours to garnish yours, don't head off to the Royal Institution (that's where the photo on the right was taken) but go instead to the CIPA Hall at 95 Chancery Lane where London IP are hosting a CPD session designed particularly with the needs of IP practitioners in mind.

The event takes place from 12:30 on 15 December and costs just £50 plus VAT for a full afternoon's entertainment and education. To register just click this link to send your details

There are two components: an update on case law and a couple of sessions on legal issues that are most important to patent attorneys. James Mitchiner, a long-standing member of this group with his own firm in south London is going to take us through the law relating to breach of confidence and non disclosure agreements.  Make sure you know why they are important and be confident in recommending the right one to your client.

Next, we are promised the anatomy of a patent licence from Tim Marshall another solicitor with his own firm in north London 

The case law updates will be provided by Dr Sarah Boxall, a patent attorney and IP strategist who has her own firm in Sandwich . She takes on the recent EPO and patent case law

A little light relief on the trademark case law will also be included. this time, not from a solo but by Dennis Lee of London law firm Silverman Sherliker LLP

As well as being highly economic or, this promises to be a good opportunity to get out of the office and enjoy some challenging intellectual property discussion before the season of mince pies commences in earnest. I hope to see you there.

The End of Patent Agents

Download the Original Research Paper 

A recent post In Defence of Patent Agents by Barrister, Jane Lambert which suggests that patent agents are content to follow instructions and get invalid patents for inventions brought to them, led me to ponder where the profession might be going. Jane's concern is the lack of business acumen within the profession. This is a fair criticism, patent firms recruit from Oxbridge PhD standard candidates who are literate but want a more comfortable life than the research lab can offer.  Entrepreneurial flair or experience are not generally expected. Indeed, while hanging out with students interested in entrepreneurship, I have met very few interested in patent agency as a profession; whilst those that are interested in the profession have been unresponsive to my suggestion that they join iTeams or their University business club or competition.

Then I started to read a Research Paper published in October 2010 and prepared for the IPO to help inform the UK IP policy and funding for the third mission of British Universities. Academic research, it seems to me, has to be intractable to ordinary mortals.  After reading the articles mentioned in the four pages of bibliographic references, it is perhaps not surprising that the view from the CEO's desk has receded far from view.  The paper informs me that patent activity by Universities was introduced and encouraged to promote knowledge transfer. Now, as a useless patent agent, I have assumed it was so Universities could secure some financial reward for their innovation. In case you doubt me there are even  references in the correct academic format to Romer, 1990.

The interesting bits I found were that the direct costs of IPR usually exceed revenues and many University Technology Transfer Offices struggle to be profitable.  In short there is a lot of ammunition in this paper that would encourage removal of funding from the TTOs which are supporting quite a few patent agents. Because of the need to read all that bibliographic material, the researchers only had time to talk to three universities, of which only one (unnamed) could have made much value from patents as the others were a social sciences college and a former polytechnic.  Hopefully there will be some of those IP Strategists that Jane promotes to advise the IPO on how it should take such inputs and pass them on to Government.

From my personal observations, I tend to agree that IP does inhibit knowledge transfer, but not because of its existence, but because of the endless bickering over ownership, filing strategy and licensing terms which can mean industry gives up using certain University departments that could be very helpful to them.  Such anecdotes sadly don't count in the world where Political decisions are driven by Academic Evidence.

IP, especially the hard stuff, is vital if there is going to be economic benefits of UK science fed back into the UK Treasury. So often, however, Universities are wasting money on patents before any  use of the technology has been identified or in areas where the market is far too small.  It seems to me that patent agents are in a good position to contribute to the debate.  However when submissions are made by the big firms or professional bodies they are all too easily dismissed as being driven by commercial self-interest. Here,maybe, SOLOs may have an advantage.

LES and ITM A combine to present Licensing Seminar

Two professional bodies have come together to create a seminar on Trademark Licensing on 16 November 2010. Cambridge SOLO group member Roman Cholij, an active member of bother the Licensing Executives Society and ITMA  has been busy putting together this promising half day event and it is still possible to book. The programme is laid out on the ITMA website here along with a  registration form.

Paul the Octpus by Tilla from Wikipedia

The location is the RIBA building at 66 Portland Place. A brisk walk up from Oxford Street tube and time over your lunch break before registration to check out the shopping.

So whether you want to draft licences for dead Octopi, Pauline or otherwise - there is a case study on licensing image rights; or extend your client's brands into new territories, this is a good opportunity to hone your drafting skills and make sure your clients are well protected.

Gives you a nice start for the new CPD year if you are a solicitor or a good finish to the account for the IPReg counters. I look forward to seeing a few SOLOs in person as it seems to me those of us truly working unsupported is getting smaller.

Last minute CPD courses in Oxford

For anyone - solicitors especially, but it coud equally be barristers, patent attorneys or trade mark attorneys - short of CPD, Jane Lambert and I are presenting a series of Wednesday afternoon courses in Oxford throughout October. Billed as introductions to patents, copyright, trade marks and designs respectively, they would also suit anyone starting off in the IP field, such as technical assistants. The cost is £120 per afternoon, £400 for the whole lot, plus VAT. Further details from here, including information on how to book.

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.

Reach out and relate: lessons from the Entrepreneur Lawyer

There's no shortage of advice on-line from marketing gurus, most of whom seem to be American. Certainly my inbox is full of their words of wisdom, and I have invested much time in reading them. Those daily emails are like a security blanket – so long as I keep on reading them, I tell myself, something good will happen. They often seem to be telling me what I already know, but don’t act on – nothing wrong with that, indeed it’s extremely useful. But there’s something just a little foreign, a bit too American, about most of them, so their teaching isn’t necessarily what an English lawyer needs. On top of that, many of them aren’t lawyers, or if they are (and I think by now most Americans probably are lawyers) they haven’t practised much, or at all, or for a long time. If I were to be able to specify my ideal marketing guru, I would want someone who understood my profession – ideally, an English solicitor. One who had practised, and not too long ago, so knew at first hand how to bring in clients. One with proven rainmaking experience. And having found one, I thought I should tell readers of this blog.

Any marketing guru – or entrepreneur lawyer, or rainmaker, or whatever: you’ve got to expect creative titles with this sort of person – who offers an e-book with the arresting title The Naked Lawyer is likely to attract attention. Not a bad start: obviously someone with a good grasp of how to market. When the headings in volume 1 of that work include “wakey, wakey”, “status quo doesn’t rock any more” (never did for me, anyway), “eat my dictaphone” (by the way, that’s a trade mark that ought to be acknowledged) and “get naked”, few readers aren’t going to find their interest well and truly engaged.

Chrissie Lightfoot is the author of this work (volume 1 of which you can download from her website), and of lots of other things including the Law Society’s Gazette’s In Business blog. She is a solicitor (currently non-practising - too much else on her plate), so she knows about the peculiar needs of the profession: but she has also set up her own businesses, and understands what it’s like to be the client too

When I met her, she’d been waiting patiently despite not receiving the message that I was running late, and remained perfectly charming in spite of my tardiness. She’s the sort of person who’s always bubbling with ideas, and while the purpose of the meeting wasn’t a marketing tutorial her infectious enthusiasm coupled with my having read volume 1 was just as effective. The key message of Chrissie’s book is “reach out and relate”, or ROAR, and without needing further encouragement I’ve been reaching out and relating to my clients and contacts – or what I perceive as reaching out and relating: there’s scope for a lot of personal interpretation – ever since. I don’t know yet how well it works, but it makes me feel a whole lot more positive about what I’m doing.

I'm not going to let all my other gurus go, but I am going to pay particular attention to what this one says from now on. I’ll hang on, passively, to my security blankets for the time being – but the naked lawyer has no need of them.

Securing your competitive future

The Law Management section’s event on 22 September was thought provoking despite some of the advice being contradictory.  Although much of the content was aimed at the unsophisticated sole practitioner who may not even yet be online, and who practices in general commoditised areas like conveyancing where the fee to act for the lender can be as low as £50, I came away with solutions to some practical problems I had been grappling with.

For example, I had been distinguishing our Azright Online service from Azrights offline.  Listening to Grahame Cohen’s talk helped me to see the error in positioning oneself in terms of online and offline "me the solicitor". They don’t need delineating.  Clients contact you for one major reason -  to solve their problem.  You need to offer a solution that is appropriate to you both.  As he put it “..if someone wants a shareholder agreement, they don’t care if it’s online or offline.  Online conjures up price certainty for solicitors.  They think they need to have a cheap fixed price online service.”

Changes

On 14 June 2010 the Legal Services Board published papers to inform debate about ABS and the impact on the market for legal services – entitled The future of the legal services – Emerging Thinking 

This had clearly informed some of the speakers’ thinking, and so is well worth a read.  For one it draws parallels between deregulation of the opticians market and legal services, and looks at the long term effects of the changes in that industry.  However, it does pick up the point that the legal services market is much more complex than the comparators of general insurance or optometrists, because unlike glasses, legal services consist of many different types of services.  I suppose this aspect of the report was not sufficiently addressed by the event, as there was little discussion about niche practice.

The paper also draws attention to the vast section of the population that earns too much to qualify for legal aid, but less than £50,000, and hence too little to afford the sort of prices law firms currently charge.  As Grahame put it, there is at the one end of the scale high cost legal services – the traditional model, where clients pay for a bespoke, personal, easy to access legal service – and at the other end of the scale is an impersonal, do it yourself type service consisting of simple legal documents, either in the form of paper kits or delivered via a software/web interface.  This low cost, convenient and impersonal solution is not something solicitors should try to offer.

Instead they should try to provide offerings in the big white space in the top right corner – namely personal service in an easy to access way at low cost.  This space in the top right hand corner - what is often referred to as the latent market, in Richard Susskind speak - is where institutions will try to move in.  More detailed information about the ideas informing Grahame's speech can be found here.

Institutions pose a threat

The institutions' greater investment will ensure that they capture a large share of the market.  A possible approach the big brands might take to the "white space" is illustrated if you look at legalzoom.com in USA which is turning over $100 million a year.  It’s an example of what’s possible.  Consumers are gravitating towards it. Legalzoom  which is described more here states on its About Us page

Every year, Americans spend millions of dollars on routine legal needs, from incorporations and trademarks to last wills. Others put off creating essential legal documents because of the inconvenience and high fees. As attorneys, we knew there had to be an easier, more affordable way to take care of common legal matters.

Our founding vision was for an easy-to-use, online service that helped people create their own legal documents. We brought together some of the best minds in the legal and technological fields to make this vision a reality. The result is LegalZoom, the nation’s leading online legal document service.

In the UK More Than offers the opportunity to buy fixed fee legal services.  Also Barclays has packaged up the legal and accounting space – offering employment agreements etc.

Solicitors are in a different market

Solicitors don’t necessarily sit in the same space as these offerings, but need to be aware of what the institutions are doing and may do in future. Value, price certainty are all in the big white space – so the challenge for solicitors is to provide solutions aimed at the latent market where the prospective client is looking for a solicitor to do the work.

If people perceive their issue as a legal problem they will look for a solicitor to solve it.  Solicitors providing services that the public associate with solicitors, therefore have a potential market of clients who are predisposed to using them.

Commoditised work

Chris Marston of Lloyds TSB advised solicitors to steer clear of commoditised work on the basis that such work would disappear once the institutions begin to compete with solicitors for legal work.  However, little was said as to what he meant by commoditised work.  But taking a look at LegalZoom a vast amount of work that is niche work which solicitors now do, such as employment contracts and trade mark registration might be described as commoditised work.

The question is whether to steer clear of such work on the basis that the institutions with their greater access to investment will wipe you out once they enter the market next year?  The answer seems to be that if clients are looking for solicitors as the answer to their problems then you do not necessarily have to be the cheapest provided you offer a cost effective service.

However, people’s trust needs to be earned.  They want confidence from the service.  You should not process clients.  Think carefully about what the client does to find you.  What sets you apart?  How will you stand out?  How do you get clients?

The importance of the net

50% of online legal searches in the UK contain the word ‘solicitor’.  Over 2 million searches every month occur with the term ‘solicitor’ in the title.  So, this suggests consumers are using the web to find legal solutions rather than to solve problems on their own.  So Grahame’s message was to make your website very important, and get your web presence right.

Andrew Woolley on the other hand felt that people who were not already online had missed the boat and would have to pay a lot of money to get anywhere.  He was also pessimistic about the future, prophesising that half the room will not have a firm in 5-10 years time.

The nature of legal service

Law is already a very competitive environment.  Selling legal services – is it just like selling beans?  What are we selling?  How do we know consumers are looking for one stop shops?  What do people want?  Tesco which is now providing banking services, and had done some research on banking which is enlightening by analogy. 

Although Tesco has said it is not intending to move into the legal services market, it has moved into banking despite the fact that its research initially showed a mere 4% of consumers would be willing to use Tesco for banking.  The greatest majority in the survey expressed a preference to use a bank.  However, the survey also showed that people generally trusted no one. 

What this survey suggests is that solicitors should not be complacent.  The fact that a majority of the public would look for a solicitor as the solution to their particular problems now, does not mean they automatically trust us, or that a few years from now they will still be perceiving us as the natural go to people to solve their legal requirements.  We must win their confidence.  Gaining clients’ trust is therefore key to building a successful practice as a solicitor.

The other fact that all the speakers seemed to agree on was the importance of not processing clients.  Instead they should be given a feeling of receiving service.

Solutions to these challenges will require a step change in the thinking and approach of the profession. So what solutions are likely to emerge to meet consumer needs in the changing legal services market? There is currently much uncertainty. However, the ABS gives institutions a chance to enter the legal services market as full-blooded providers, as opposed to simply offering a branded referral service, which is what they are doing at present. These companies have the infrastructure, or access to it, through their banking, financial and insurance services arms.  In my own opinion, it will be difficult, bearing in mind their likely advertising budgets, to gradually shift the public's perception as to who is the natural choice to handle their various legal requirements.

ABS

Once ABS become available post 6 October 2011 an entity that wants to become an ABS will be free to choose its regulator.  So it’s possible to choose to be regulated by one body, while the individual solicitors working within that entity continue to be regulated by the SRA.

The ABS will allow ownership of solicitors firms by non-solicitors – subject to a “fitness to own” test as to ownership and management.  To be eligible there must be a Head of Legal Practice (HoLP) and a Head of Finance and Administration (HoFA) responsible for those areas and answerable to the regulator.  External ownership can be 100%.  However a great deal remains unknown.

One such question is what will happen to the delivery of legal services? 

As Tony Guise put it: Speculation is rife at the moment which does not assist in business planning. There are a range of resources on his website which may provide greater insight.

The Consultants Law Firm Model 

Finally, Lucy Scott-Moncrieff partner in Scomo walked us through what has proved to be a very successful model both for her firm and for Woolleys - namely a virtual firm using the services of self employed senior solicitors working from home.  Her firm's model is well explained in this Law Society Gazette article so I won't reiterate it here. The fact that I know of a number of others who are successfully using this model -  Keystone Law,  Cubism Law,Halebury   is a sure sign that it works.

Lucy also mentioned her recent idea for firms to group together to share certain costs like insurance, while retaining their separate identities.  This was recently discussed in the Law Society Gazette

Conclusion

So, currently clients are more favourably disposed to us solicitors than is commonly-believed, particularly when compared to non-admitted providers. The natural and automatic response to any problem or issue or situation of a legal nature is: "I need a solicitor to sort this", and this reflects a deeper, implicit belief that only a solicitor can sort it, and no-one else is to be trusted.

But if you look back in time, we used to be trusted business advisers that clients turned to for tax advice, but now it's accountants they think of for general tax advice.  So, although nobody knows what will happen with ABS the best we can do is to focus on keeping ourselves top of mind for clients seeking legal services by making our businesses the best they can be.   The other point to bear in mind (this is my own opinion) is that the institutions will be using solicitors to do the legal work, so how much of an advantage do we really have?.

Solicitor numbers have grown inexorably – will this change?  Is it the end of the high street law firm?  Probably not said some of the speakers, but firms will need to consider their:

• Business structure- a corporate vehicle is better than partnership. 
• The work they do/services they deliver. 
• Building brand loyalty based on one or more of:

1. geography
2. sector specialism
3. service levels (people will pay more to get looked after well
4. technical excellen
5. value-building ethos

However, while the next few years will undoubtedly present challenges, they may also present opportunities for law firms to find more suitable exit arrangements.  After all, the institutions are going to be needing the services of lawyers and law firms to become full blooded competitors with solicitors.

York: Legal Research and Market Research

The Station from the Great Wall of York

As our generous host, Eileen Morrow has already reported, there was an all too infrequent gathering of SOLO IP lawyers yesterday in York. The excuse was an excellent training session on WESTLAW IP given by Paul Mullally. He showed us how to find the content we needed to argue our cases before the EPO or in the UK, how to get to use their highly efficient Current Awareness that finds stuff behind the Times pay wall and from all those sources we don't have time to check. This is all accessible and affordable due to our special subscription but you need to join at this time of year (before December) so get in touch quickly to be as smart as biglaw.

There were lots of goodies from The Yorkshire Food Company to keep the conversation flowing. A few highlights:

• Will we be able to get more disputes settled in the Patents County Court with its new procedure exciting new judge and costs cap. Does that cap apply to existing cases. We could not see why it should not or at least for steps undertaken after 1 October 2010. Discovery before that could be arguable. What do you think?
• Open Innovation and Innovation by Brainstorming. How can maverick IP lawyers solve the problems.
• The miserable number of European Patent Applications emerging from Yorkshire companies (200 pa was mooted). 
• Why do German entrepreneurs see greater value in patents than UK business
• Getting messages across to clients in blogs and press releases
• Using Software as a Service - I need a link here for the time recording and billing iPhone app
• Charging and the need to record time even if the bills are all fixed fees agreed in advance
• CPD collecting - did a plug here for Ipso Jure which has excellent patent coverage and will give you quality points and notes for a modest annual subscription. Contact Peter to sign up

Homeward bound

and the sun shone outside and we were all impressed with the Yorsolicitor office and hope that lots of bio science entrepreneurs will realise what an excellent resource is there to guide them economically and efficiently and with the wisdom, initiative and experience which is the hallmark of the SOLO IP lawyer.

Media and communications needs of small and solo practitioners

Yesterday I ran, with the welcome support of Adam Smith (World Trademark Review), the first of two seminars on "How to Write an Effective IP Press Release".  The responses so far have been really encouraging, and I've received some useful suggestions too.

One participant suggested that, since the communication needs and the available resources of small practices are clearly different to those of the large firms, a version of this seminar could be adapted for the small/solo firm.  If there's enough interest, I'd be happy to run a formal seminar or participate in a SOLO IP social/serious discussion on the topic over a welcome pint.  If you're interested, can you just post a note to that effect below.

York and Westlaw 20th September 2010 with some SOLO networking

York Station from Tim Green's Flickr stream

YorSolicitor has kindly agreed to host a training session in the Boardroom of her offices at 105 The Mount, York on Monday 20 September.

Your WESTLAW IP training will start at 2pm but for those who fancy a gossip and a bite to eat we will be convening at 12:30 to set the IP world to rights. For details of our subscription scheme see my earlier post. If you would like to join in please email to check there is room.

I will be coming up from London, which explains why I have included this picture of York Railway Station. Apparently it has free wifi throughout. How many businesses are running in the station I wonder. 

Come along and let us off some steam, share some ideas on everything from IT support to Regulation, the new IP Practice Direction to the foibles and delights available at OHIM and maybe a small digression on shape trademarks after the Lego judgement expected on the 14th.

See you there!

End of Lawyers and the Legal Services Act and Impact on Law Practice

In a recent blog post ‘End of Lawyers and the Legal Services Act’  I mentioned some of the current challenges facing those of us that run law firms.  These include the need to become deeply multidisciplinary, and also to provide the more innovative solutions the market needs in order to drive down costs. 

In my area of practice – which is Internet and IP law – ‘multidisciplinary’ essentially means having a solid grasp of IT.  So, although like most growing businesses, I am constantly preoccupied with thoughts about what services to offer and who to employ, there is this underlying essential requirement that any staff hired should be highly IT savvy. 

One of the advantages of being a regulated law firm is that there is no shortage of highly motivated and talented ‘would be’ lawyers constantly knocking on the door in search of work experience.  However, surprisingly few of them offer the level of IT competence we ideally want to see in candidates.  Being in their early 20’s I would have thought they would emerge from their studies extremely proficient in IT, but that is rarely the case.  The level of knowledge of Outlook, Word, Spreadsheets, and other applications often leaves much to be desired, and as a small law firm we simply do not have time to train people up in these areas.  They need to be able to hit the ground running.  I've learnt that a distinction in the LPC, or a First in Law, is generally not indicative of suitability to work in a fast paced environment like ours where the ability to multi task, to be practical, learn fast, and have common sense, are more likely to lead to success. 

Similarly, the ability to write is such a key asset to be able to offer an online business such as Azrights – but this is unfortunately not a skill generally evident among those who are aspiring to become lawyers.  

Therefore, offering advanced IT or writing skills would stand out from the crowd of CVs.  My advice to ‘would be’ lawyers, for what it’s worth, is to acquire these skills and once you have them highlight your abilities in your CV.

Currently law graduates offering work experience in related areas, such as journalism, marketing, PR, internet marketing or web design are more attractive than those who just offer law, regardless of class of law degree. So instead of focusing purely on legal knowledge and learning - which is actually rarely a unique selling point given the level of competition out there among law graduates - it is better to acquire these wider skills.  In my view, this upskilling, and acquring a good understanding of marketing, would enable a law graduate to stand out from the crowd and stand a good chance of getting a training contract in this fiercely competitive market.

The world of law is indeed changing rapidly, and the sooner this is reflected in the education ‘would be’ lawyers receive the better for everyone.  Those finding it difficult to get a toe hold in the profession, would also benefit from reading Richard Susskind's books and the article by Stephen Mayson both of which are hyperlinked in my earlier blog post mentioned above.  An understanding of the market forces that are changing the face of the legal world will help the new generation of 'would be' lawyers to understand the type of skills they may need to acquire. 

 

Bye-bye London?

Jane Lambert has been celebrating, via the LinkedIn Ipso Jure group, a recent decision of the Intellectual Property Office hearing officer in Manchester, Richard Wragg v Mike Donnelly (here). Her satisfaction was not just because she triumphed on behalf of her client but for the reason that this was the first such hearing to take place outside London.

Right: the Old Corporation Court Room, Malmesbury -- a worthy venue for proceedings before the hearing officer?

On this issue she explains how easy it is:

"The issue is canvassed first with the other side in correspondence and then put to the court at the case management conference.

In my experience the difficulty lies not so much in persuading a judge or hearing officer to sit outside London as in persuading local administrators to free up one of their courts.

Donnelly was heard in the immigration tribunal. As we now have new civil court centres in Manchester and Liverpool it should be easier to get a trial on the Northern Circuit. Space in Leeds and Newcastle is still tight".

Thanks, Jane. If the cost and inefficient use of time caused by litigation in distant venues can be trimmed down or avoided altogether, so much the better.

Trading Standards: worth a try?

I've recently been in correspondence with a trade mark owner who has been trying to protect her trade mark against infringement by a far larger company. Since she has limited resources for civil litigation, she has been trying another route -- making complaints to local Trading Standards offices in the hope that they will leap into action in order to remove infringing goods from the shops.

I understand that, while it is possible to secure some success in this manner, it is by no means easy. A complainant has to be able to persuade that there is indeed a valid trade mark and that it is being infringed, and it can be hard to keep the attention of TS for long enough to get them to understand what is required of them, since they are generally under-resourced themselves and they are much more interested in things like tainted foods, stolen goods, actual counterfeits and so on, and don't particularly want to spend their time doing what they feel is the job of the civil law.

Any comments, suggestions, experiences?

Free Community Trademark Representation

This post was provoked by the IPkat post on the OHIM decision to defer allowing community trademark applicants from outside the EU to use their services without the aid of a professional representative. The current rule is that the non-European applicant needs to be represented even if his application has no issues that require the intervention of a representative.

Anyone regardless of nationality can apply for a CTM and its not difficult to do online. It can be expensive if you get it wrong and professional advice can help you avoid mistakes and add considerable value, but for those entrepreneurs with confidence why should they not flash their credit card. The difficulty as I see it is that the European entrepreneur does not have a similar privilege to do the same in the rest of the world. If WIPO thinks its worth taking up, then compulsory representation for out-of-territory applicants could become a thing of the past but, until then, I do not see why OHIM should go unilateral.

There is a suggestion that professional bodies object to the removal of the restriction because it denies them work. For that reason I am prepared to represent an out of state applicant who needs a representative for free. This is not costless and it is an invitation to treat. The claimant of such free services must:

• provide sufficient information about themselves and the application so I can identify them for regulatory purposes
• agree to my terms of trade which contain a fair hourly rate for any professional services that may be needed, though there will be no fees if the CTM registers without any intervention on my part except the the taking over of representation, and a limitation of liability
• be prepared to sign an authorisation promptly if requested
• stay in touch for the next 10 years so I can forward any correspondence that arises such as a third party cancellation action.

In return I shall

• notify OHIM that I am your representative
• enter details of your trademark application into my docketing system
• forward correspondence by email only

Any other OHIM representatives offering similar free services to out of state DIY applicants is invited to add their offer in a comment.

I have already done this. A recent requester declined to provide any further information to identify himself and that is essential.

Many European trademark professionals would like advising on trademarks to  be a reserved legal activity, but at present it is not. It is therefore important for applicants seeking assistance to have some way of checking that a representative conforms to some code of conduct. You can only do that on a state by state basis and the UK regulator  IPReg does not pull its weight at the moment by providing a list of regulated firms so you might do better to choose a solicitor whose status you can check. For more information on representation see the OHIM page.

Flying Solo, or United?

The Review of the UK Private Practice Intellectual Property Sector, August 2010, has just been published. It is compiled by recruitment consultant Pete Fellows (Director, Fellows and Associates) and can be found here. This blog's constituents may be interested to read this little extract from it:

"2010 has been the year for flying solo with an amazing array of new firms entering the market. Yorkshire in particular has been a hotbed for this kind of activity but there are examples across the UK. I also expect that given the successes and failures amongst the established firms in 2009/10 to see perhaps one or two acquisitions/mergers in the coming year. Opportunities abound for firms wishing to expand their reach by a sound acquisition strategy".

I'm just wondering who this "amazing array of new firms" flying solo might consist of -- and would they recognise themselves from this jurisdiction?

Were you hoping to get some outsourced US patent filing work?

Bad news if you're a non-American (is the term 'alien' still used?): the Strategic Manufacturing & Job Repatriation Act seeks, among other things, to develop a national manufacturing strategy to create American jobs:

"The legislation would comprehensively align existing federal funding – at no new cost – to support job repatriation and manufacturing growth, study a new tax incentive to encourage repatriation, and bolster intellectual property protection".

Protecting American intellectual property is achieved by "restricting unnecessary foreign access to pending patent applications". Or am I reading too much into this?

Is it worth being an IP attorney litigator?

Writing in the current issue of the Journal of Intellectual Property Law & Practice (2010) 5(8):602-607 (JIPLP), fellow blogger David Musker (Jenkins; Class 99 blogmeister) has an article ("IP Attorney Litigators: will they fly or die?") on the viability of patent attorney litigators in the United Kingdom. David's abstract runs like this:

"Legal context: The Courts and Legal Services Act 1990 opened the way for bodies such as the Chartered Institute of Patent Attorneys (CIPA) and the Institute of Trade Mark Attorneys (ITMA) to certify litigators licensed to act in competition with solicitors in England and Wales. There are currently almost 100 such attorney litigators in the UK

Key points: The author makes use of comparative and demographic data to study the profiles of attorney litigators, including routes to certification, seniority by years post-qualification, gender. He explores comparisons with other UK hybrid legal professionals such as licensed conveyancers.

Practical significance: UK solicitors are at no risk from other professions within the UK. Even any competitive price pressure in UK IP litigation is far more likely to be intra-professional, from rival firms, rather than inter-professional. Regardless though of whether the CIPA and ITMA certification schemes ultimately live up to the competitive aims of the 1990 legislation, they are certainly capable of meeting more modest goals of "upskilling" the IP attorney".

If you are thinking of adding this qualification to your range of existing skills and talents, it's worth reading this article first. It has some interesting statistics too.

Case Law and IP Commentary: Searching for the Law

This morning I had to check out some cases on tactile trademarks. Since I have a Westlaw UK IP subscription, that was not a problem for me. Do you want one too?

The subscription is available to a solo solicitor, patent or trademark attorney or legal consultant but not a practising barrister. Its OK if you employ some support staff or even work with a partner but if the subscriber has more than 3 fee earning employees its not solo.

We are a very friendly group and are hoping to organise a WEBEX training session so our Westlaw representative can show you how to get the most our of the service and get just as much enjoyment from leaving through Kerly or the CIPA Black Book online as you do from making a trip to the library.  

I have been using Westlaw on my iPad - very satisfactory. Great excuse to buy yourself one.

June IP update podcast

This month I will blow my own trumpet: the June edition of my IPso Jure Lawcast is now available for download, featuring such exciting developments as Bilski, Edwards (and "reverse-Edwards"), Flos, the Court of Justice on whether perfume testers are “put on the market” (in the Lancaster case) and a malicious falsehood case in which the Court of Appeal rejects the single meaning rule (Ajinimoto Sweetners). It runs for about 75 minutes, meaning it's hard work for an hour's CPD, but there's a lot to talk about.

Download it, and the notes, from www.ipsojure.co.uk/p/lawcasts.html. The downloading part is still free, but if you want to get CPD for listening you must register - instructions and fees on the site.

Basic Bilski: answering the client queries

Now that the US Supreme Court has handed down its Opinion in the notorious Bilski case, the only thing our clients want to know is does this mean they can get software and or business method patents in the USA. Many Europeans have been sending clients to the US when they have to disappoint them that their ideas are not patentable in Europe. My conclusion is that if you could still get a business method patent it would be as much use as the collection of rubbish in my picture. As to a software patents, they seem to be much where they were before. 

Indeed the Supreme Court seems to be saying let nothing change. The only exceptions to patent eligibility remain "laws of nature, physical phenomena and abstract ideas".  That come from previous Supreme Court cases. The concept of hedging which was Bilski's alleged invention was deemed abstract and not patent-eligible. The main point of the Opinion is that the machine and transformation test is not the exclusive test for whether a process is patentable. It just provides a clue to the answer. Again this was also part of existing Supreme Court case law.

Bilski seems to have been much delayed because of a difference of opinion between two groups of judges. The Opinion of the Court was given by Justice Kennedy. He held that a business method had to be a process within the scope of the Patent statue because of a defence introduced in 1999 following the State Street case that opened the floodgates for non-technical patents in the USA:  Kennedy says:

Under 35 U. S. C. §273(b)(1), if a patent-holder claims infringement based on“a method in [a] patent,” the alleged infringer can assert a defense of prior use. For purposes of this defense alone, “method” is defined as “a method of doing or conducting business.” §273(a)(3). In other words, by allowing this defense the statute itself acknowledges that there may be business method patents.

Justice Stevens strongly disagreed and said that Section 273 is a red herring. He clearly wanted the Court to give a clear statement that methods of doing business are not patentable "processes".

There is some great material in the Stevens Opinion about the underlying policy of the Patent system. It is quite gratifying to see the recognition of the English influence.

Overall if you are a business man, please do not take your business ideas to the patent attorney, use them. Your investors may think you ought to patent them, if the competition is doing so. I suggest you tell them that means your competitors are not focusing on their job. The fear of  course is the troll with a patent. Justice Stevens offered this crumb of comfort:

... Members of this Court have noted that patents on business methods are of “suspect validity.” eBay Inc. v. MercExchange, L. L. C., 547 U. S. 388, 397 (2006) (KENNEDY, J., concurring).

Supply of IP services and the BSI

Wearing my IPKat hat I recently blogged on the subject of professional standards, asking: "Do you provide services relating to IP rights? Do you -- or your clients -- ever wonder if you're any good?" This was prompted by the publication by the British Standards Institute (BSI) of a request for comments by 31 July 2010 relating to its draft specification for the provision of services relating to intellectual property rights. The draft standard, BS 8538, can be reviewed if you register with the BSI here. It features an explanation of the scope of the proposed specification and a list of terms and definitions, then tackles (i) principles for ethical behaviour and (ii) process for service provision. There then follows a bibliography and an annex relating to non-disclosure agreements.

It seems to me that the quality of professional standards in the supply of IP services is a matter which requires particular attention among smaller practices, where time is a precious and often scarce resource and where compliance with legal and professional requirements can be onerous even in the absence of optional extras like BSI standards. If any debate on this issue takes place, can someone let us know? If there's sufficient demand, perhaps SOLO IP should hold an informal meeting to discuss the topic. Thoughts?

IP CPD, coming to a set of earphones near you ...

Our esteemed SOLO IP colleague Peter Groves is far too modest to blow his own trumpet on this weblog, but the information below (largely reproduced from a recent post on the IPKat weblog) looks like good news for IP practitioners who do not work for large practices or for companies with the resources to send them off to fancy conferences and seminars in order to satisfy continuing professional development (CPD) requirements.

In short, IP practitioners in the UK can secure CPD credits by listening to a monthly podcast and completing a short multichoice questionnaire. The IPso Jure Lawcast is produced each month by Peter, a solicitor with nearly 30 years’ experience in the field and the author of several books and many articles, covering the important developments affecting practitioners in England.

The May 2010 programme (now online) covers, inter alia,

(i) a failed attempt to use the tort of causing unfair harm by unlawful means, where there was no IP to rely on;

(ii) the Advocate General finding levies on equipment and media incompatible with the Information Society Directive;

(iii) a replica of Henry the vacuum cleaner that infringed no design rights but fell foul of passing-off law;

(iv) the EPO's Enlarged Board of Appeal rejecting the referral of questions about computer-implemented inventions;

(v) a patent application being found obvious against a Pedrick patent and

(vi) the Court of Appeal reluctantly following the Court of Justice in L’Oréal v Bellure.

The audio files can be downloaded free of charge, but for CPD you’ll have to register and pay a modest fee (£25 plus VAT per programme, £240 plus VAT a year (12 programmes each worth one hour CPD), £200 plus VAT for the first year if you subscribe by the end of June). You can try as much as you like without having to buy anything.

Links to the audio files, and the accompanying notes, are here, where you can also find the full terms and conditions. The Lawcasts are accredited for CPD by the Solicitors Regulation Authority, and solicitors can do 12 hours CPD per year by distance learning means. Barristers, patent attorneys and trade mark attorneys can also meet some of their CPD requirements this way.

Foreign Relations for Trademark Attorneys

Thanks to the Foreign and Commonwealth Office for permission to use this picture of William Hague, the UK's New Foreign Secretary with US Secretary of State, Hillary Clinton in Washington. Mr Hague's travel arrangements to the US appear to have been trouble free, the 450 UK trademark attorneys heading for the INTA Annual Meeting in Boston. may not be so lucky between ash clouds and the BA strikes.

Why are we off to this meeting - what is the point? For myself  I hope to meet and greet clients and associates with whom I work. This is an opportunity when so many congregate in one place -  too many perhaps as there are over 8000 registered already. Finding a random person without a prior arrangement is going to be hard.

This year I am hoping to attend the sessions and catch up on the chasms that divide US and European practice. Co- blogger Jeremy Phillips is chairing CW03 – Regional Update – Africa on Wednesday Morning at 10:15 if the fast and furious classic annual review of US Federal Case Law and TTAB practice is not for you.

The Exhibition hall has some interesting prospects and this year guests are allowed in. They will be easy to spot as their badges are blue.  Here I shall find the OHIM stand and learn some more about the reasons behind the idiosyncrasies of their IT system and the ongoing delays in the Opposition Division

I may chat with one or two attorneys who are representing other sides in oppositions. I suspect it may not be a good year for that as I detect a hardening of hearts.

As to the party circuit, it seems that this year the guest lists for receptions and parties are being curtailed so maybe I will get more rest than in former years. Alternatively it may mean less manic circulation and more quality time at the parties I do attend. Of course Meet the Bloggers on  May 24 at 8pm at Lucky's Lounge, Boston is likely to be a very high quality event. See you there.

Barristers Terms of Engagement - sharing or bearing the Risk

I have to thank barrister, Jane Lambert of NIPC for drawing my attention to The Bar Council Consultation on their terms of engagement.

The paper is worth a read just for the explanation of the delights of the "cab rank rule" and the fact that there is no obligation to pay barristers. What gentlemen to have practised so long on such unsound terms. I have every sympathy with the need for reform.

The downside of making the solicitor (or presumably other regulated lawyer such as a a patent or trade  mark agent since CIPA, ITMA and IPReg are listed amongst the consultees) responsible for payment under the New Contractual Terms  is that the solicitor then bears all the risk of the non-paying client and today that is SO LARGE we will always needs barristers fees as a retainer in advance of giving instructions.

The Terms also allow for open hourly rate contracts. 

It seems to me that the Bar Council is asking for a lot in exchange for the cab rank rule. In Intellectual Property Matters that does not really hold up. Clients have to instruct Council they can afford and who are available. For many IP matters it makes a lot more sense for the barrister and solicitor to work in partnership sharing and managing the risk. Gone are the days when a barrister did not contaminate his hands with issues of money.

The risks are greater if the solicitor is not a large organisation and I believe solo solicitors are just as worthy of protection as younger and more vulnerable barristers.

What to do - make your opinions known to your representative body and ensure they respond to the Consultation, comment on this blog. If there is enough support and consensus we can submit a SOLO response.


This has not got a lot to do with apples but its a nice one and somehow it ought to be shared and not poisoned.

What can we learn from the politicians?

Our colleague Aaron Wood (Wood) has been inspired by the UK General Election to offer some thoughts on what the politicians can teach the solo IP practitioner. He writes:

"Those in the UK know that this week is a momentous week in politics – it is election week, when the general public gets to decide on the future of their country for the next five years. I have had the special pleasure of standing as a candidate for local government, something which I am doing to help improve the area where I live. For a number of months I have been talking to the public on their doorstep, writing local literature in support of my campaign and garnering support from the local community.

Like most of the British public, I have also watched the debates with interest. Interest in the policies, but also interest in the words that they used and the way they presented themselves. I came to wonder, can solo IP practitioners learn from the world of politics? Here are some of my thoughts on the lessons that they show us:

Personal presentation: Each of the main party leaders has presented himself in a way which was congruent with his message. For David Cameron, this was that he is the Prime-Minister-in-waiting, an individual ready to take the reins and lead the country; for Gordon Brown, the look was more of a busy man, a person who has worked hard for the country and wants to continue doing so; for Nick Clegg, a middle ground with colours and presentation slightly discordant with the other two – reflecting his position of being a “different” politician.

Body language and verbal style: The body language of the leaders has been interesting, and there was a view that Clegg was the better person at controlling his body language in the first debate. Clegg’s natural use of the names of questioners and his way of addressing the camera were in contrast with the less natural efforts of the other two leaders. This reflected well with the overall story that Clegg gave of being the leader who understands the public best.

Negative vs. positive policies : The Conservatives have been largely positive in their campaigning, leading to many taking the view that they have not been aggressive enough. Other polls suggest that negative campaigning is a turn-off. Clegg (in the first and third debates) and Brown (in the second debate) jumped upon conflict between the leaders as indicating weakness and as people being like children. Labour and the Liberal Democrats have adopted a more aggressive approach which may or may not be successful across the electorate – an approach which perhaps was needed to try to puncture the perception that the Conservative party was bound to win.

The use of humour: Humour is a wonderful addition – if you are funny. When you build it up and it doesn’t work, it is awful. Each of the leaders has made at least one clunking attempt at humour. According to some of the world’s best humourists, the key is to draw out the humour in the situation, not try to add it in or create it.

What does this all mean for the SOLO IP practitioner? Should we be presidential or approachable (can we be both)? If we’re pitching for work should we always be positive, or is there room for a little bit of negative? Is there room for humour? The answer I think is this – people pick politicians on character. The same is true of advisors – there is an element of professional trust, and an element of relationship.

Clients assume the knowledge and dedication of the advisor and that the administration of the account will be smooth – that is the entry fee to the party. Once that is fulfilled, it’s all open. The growth of the internet, of freer access to legal information has been a game-changer. The large firm has little to add over a niche firm in many IP matters – leaving aside huge patent infringement cases when the ability to call upon a team of corporate associates is seen as a benefit. Most clients want a strong relationship with a small team who will ensure it goes well.

When we hear objections about politicians, we hear that they do not listen to the electorate’s issues – listening and responding to clients is the key. Active listening requires us to watch for reactions – unintentional signs that what we say resonates or grates. By listening and watching, we can be more successful and perhaps we can also break the long monopoly that some clients feel that there are only a few choices".

As ever, readers' comments are welcome. My feeling is that solo and small practitioners have more to learn from dentists than from politicians: know your drill, be painless, focus only on the work that needs to be done -- and make sure your client comes back to you for a check-up before anything urgently needs to be done.