Wednesday 26 January 2011

The Great Unregulated

At yesterday's Intellectual Property Institute seminar on the report, Intellectual Property Enforcement in Smaller UK Firms (here) I mentioned a topic that is of potential importance to many readers of this blog: the growth of the unregulated sector.

The position of specialists intellectual property solicitors, barristers, patent attorneys and trade mark attorneys is fairly clear: they are qualified, they are regulated and they cannot quickly and easily increase their numbers.  This has raised the suggestion that, since they are in relatively short and stable supply, the cost of engaging them is not very elastic.

It seems to me, however, that there has been a rapid growth in the unregulated sector.  Among those wo are competing to supply services to the IP business community are the following (some people may fit within more than one category):

  • former qualified practitioners who have retired or ceased to retain their practising certificates on being made redundant;
  • people who for one reason or another have failed to pass their professional examinations but have studied for them;
  • those who have worked in an intellectual property environment and have gained some practical experience;
  • businessmen who have specialised in bringing innovations to market.

I'm fairly certain that there are quite a lot of people working as unregulated IP consultants since I regularly receive email or phone requests for advice with regard to gaining access to reported and unreported cases, updating on recent developments and recommendations of others whose skills complement their own. What I'd like to know is what impact these people have upon the IP environment, especially in so far as it affects micro-businesses and SMEs which perhaps unsurprisingly appear to make up the bulk of their clientele. I also know that some of these people would be only too happy to secure some form of regulation and recognition, while others see it as unnecessary or a threat to their activities.

Readers' thoughts on this topic are very much appreciated, not least because it might turn out to be an interesting and valuable subject for a serious research project in the future.


  1. Here is an example of a
    non-regulated law firm
    Of course there are many trademark attorneys who are not regulated too. Are they cheaper and just as competent? How does the public know and is it now a negative to say you are regulated.

  2. I'm a Copyright Officer in Higher Education - I really love to advise on copyright issues and attend as many reasonably priced practical and theoretical seminars and workshops as I can. In HE the same issues crop up time and again but we're usually not dealing with serious infringements.

    I would always encourage individuals to seek proper legal advice if they were in a tricky situation regarding copyright infringement as I know where my limitations lie. I am unsure what exactly is involved in regulation but am always keen to develop skills and knowledge as part of my career.

  3. CAVEAT EMPTOR. IP advice is no different from any other vendor relationship. If creators and IP rights owners (of whatever size) do not do their homework about who they are dealing with, they should prepare themselves for some nasty surprises and this includes regulated firms. Equally, from the standpoint of a practitioner, reputation is all and you're only as good as your last success/failure.

  4. They should be required to positively state that they are not qualified as a regulated profession to give advice. Many of them do not have insurance, from what I can glean. Given the increase in insurance premia of late, this gives them a huge competitive advantage. Also, TM agents should not try to advise on commerical contracts such as licences. They dont understand the reasons for the clauses they use simply as they have not had to learn basic contract law.

  5. I am unsure how much the end user (i.e. the trade mark registrant) is bothered by such things. There is a huge difference between offering trade mark registration services (for instance) and offering full blown legal advice in relation to infringement of a trade mark.

    The client for these services is not interested whether the company concerned is regulated - who's to say they are any better at delivery as a result? IP registrations are a commodity like anything else - and a mixture of price, delivery, service will determine the client's decision.

    If I go to a regulated entity for a trade mark application and they want to charge me double for the same service as an online provider, how much extra value is really on offer?

    It is different if you are a multinational with 000's of marks and infringements all over the world - then you need specialist advice and the regulation that goes with it. For everyday transactions then the position is different.

  6. Just because a business or individual is regulated does not mean that they are competent or add value to the IP stream.

    In many cases being regulated gives the illusion of adding value when in fact a business or individual service is an unnecessary expense... or even just downright incompetent.

    Barristers and lawyers like to complicate the transaction and change the language of process from English to Legalese to entrench their position. In reality the entire system would work better by utilizing Common English and doing away with all the Legalese.

  7. One of the problems, particularly with trade marks, is that people who aren't qualified simply don't know what they don't know. They file applications missing points that qualified people would spot and spend time (sometimes a considerable period of time) thinking about.

    It is a very difficult field - hence the difficulty of the TM register exams - it just doesn't look difficult if you don't know that the subtleties exist.

    Clients so often have at least some issue with a third party when they come to register a mark. If not, there will often be something come up in a search where there is a shade of grey. Thus, even apparently simple searching and filing benefits from experience and knowledge.

    But those who don't know what they're talking about simply don't know they are missing points.

    Client's marks gets opposed? Oh well. But a reg'd TM attorney might have seen the mark in a search and drafted the specification differently, or discussed an amendment to the mark to minimise the chance of opposition.

    The classification system looks trivial but is very carefully structured and errors and omissions can leave clients exposed. But those who don't know the subtleties - or simply ask the client in what class they wish to register haven't the foggiest they are wrong.

    Thus the problem - unregulated advisers, let alone their clients, sometimes have no idea how bad they are.

  8. Jeremy,
    I think unregulated providers who can undercut professionals because they don't carry insurance is bound to have an effect. If you are competing with people who do not operate under the same rules, and don't have the necessaries in place to provide checks and balances that you have to provide, then clients are not comparing like with like when assessing prices. It drives down prices, and devalues the service. However, as to what the solution may be, I don't know. I'm about to post a blog piece which is partly in response to your post as this comment would become unwieldy if I just wrote it as a comment.

  9. This theme seems to have led to the BSI's misguided attempt to create a British Standard for IP services. The last I heard (a few months ago), they had gone back to the drawing board with that idea.

    A fundamental question is whether there should be activities that are reserved to specific legal professionals. The general trend in the UK is away from that position, caused in part, I believe, by the liberalising efforts of the patent agents' profession, which has opened up advocacy rights, and in part by a more general democratic trend away from protecting the professions. It does not help that solicitors have been pushed, or have pushed themselves, to allowing outside ownership by non-lawyers, a position which lawyers in other countries look at in amazement.

    My impression is that the genie is permanently out of the bottle. I would like it to be a criminal offence to impersonate a lawyer (perhaps it is, but if so it isn't strictly enforced); the US seems to have a clearer position on this.

    A further problem with IP services is that they can range from the legal to the commercial, from the administrative to the strategic, so any rules on offering services may be difficult to draft and enforce.

    There seems to be a problem with naive SMEs and individuals being offered poor services or, at worst, cheated, by unregulated advisers and agents. This could be addressed by stricter regulation of who can offer specific services, but I doubt whether this will be a politically attractive route. Some other kind of consumer protection measures may be more likely.

    Apologies for these rather unformed thoughts; it is difficult to have a reasoned rant in a small comment box.

  10. Stephen Moffitt has left a new comment on your post "The Great Unregulated":

    I am an 'unregulated' advisor on IP issues, particularly copyright in the sense that I have a PhD in copyright law, but have not studied for the bar. My main work is as a technology consultant, particularly related to online content. As a result, I am often asked about the IP implicatations related to my consultancy. I offer advice based on my study and experience, but always say that I am not a lawyer and my clients should always seek advice.

    The value that my clients find is in the combination of technical, legal and business advise. I also often act as the 'translator' between the business clients and legal advisors.

    I see the value in specialised, regulated expertise; however in a rapidly changing world like IP, there are new needs and new business models being developed that cannot yet be formalised. In the end, all advise is based on trust and relationships, regardless of whether one has passed certain exams or not.

  11. I'm not regulated and although I have tried to seek regulation, I was told I couldn't. I didn't quite fit the bill to the exclusive club. It was expensive (and probably unjustified), but I have insurance.
    And while I've had patience and to sit the exams i have to pass to fully qualify, one paper at a time (which could take a number of years to finish), my biggest shock is the shoddy type of work some regulated firms generate (and some of them are very big). My dog could draft better Patents.

  12. The letter sent by the UK IPO to private patent applicants says *patent attorneys are legally qualifed and independently regulated.. other patent advisors may also be able to help*
    Buyer beware

  13. I fancy my hand at a spot of doctoring. I'm not qualified or regulated, but I have home and car insurance (out of date now, but don't tell anyone!). Most doctors have poor people sklls and we all know they frequently make mistakes. I could probably qualify if I went back to school, got some appropriate qualifications, but why bother when I can be a well-paid and untouchable quack? I know what I know and stick to advising on that and what I don't know will be picked up by the coroner. But he is more expensive than me so his advice should be used only sparingly.