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.