Friday 27 July 2012

Non-law first degrees: which, if any, is the best buy?

Many people are thinking
about their choice of degree
at a fairly tender age ...
I've just been reading an interesting little piece on the UKSC Blog (UKSC being "UK Supreme Court") on whether it's better to enter legal practice with a law degree or without one. In some areas, getting started is well-nigh impossible without a strong non-law basis. For example, anyone wishing to practise as a patent attorney is pretty well incapacitated without a degree-level science background.  The only people who don't need to know anything about science and technology to make their way in the field of patents are, in the UK anyway, the judiciary, who can sit as Chancery judges in patent cases and indeed hear appeals as far as the Court of Appeal and the Supreme Court without any possessing any specific or general scientific base.  This lack of scientific education is shared by most members of the Court of Justice of the European Union, but that's another story.

What I'm thinking about right now is this: both academic and practical legal education goes out of date pretty quickly; that's why continuing legal education is so important.  Science and technology change too, but within the IP community there is less need to force practitioners to retrain regularly: the nature of their work and the separate need for expert witnesses sees to that.  But in terms of getting a foothold in one of the IP professions and then climbing the ladder, what sort of non-law first degree works best? Does one opt for a white-hot new technology in a rapidly evolving field, where everything is new but practical applications may be uncertain or unknown? Or perhaps a mature technology is best, where things are more stable in terms of markets for products and processes and there's a regular flow of incremental innovation? Or again, something more mathematical, as a better means of cultivating analytical habits of thought?

It would be good to hear from readers as to which non-law degree they reckon to be a "best buy" for the next generations of IP practitioners.

Monday 23 July 2012

Disposing of your IP practice? Or fancy writing a review?

One of my intellectual property LinkedIn groups sent gentle ripples through the tranquility of my train of thoughts this afternoon, when news of a new discussion arrived in my in-box. It read:
Thinking of disposing of your law firm – well, don’t ripped for a free report on how NOT to get ripped off when disposing of your law firm.
Having first noticed the obvious need for editing and then having pondered on whether this was a discussion or -- as it seemed to me -- a marketing promotion, I then started wondering about the condition of many small IP practices.  During the current recession, many such practices must be teetering on the brink, surviving on small amounts of regular work from current clients, bits of outsourced work for other practices, the making of further reductions in overheads and a good deal of (depending on one's personal preferences) praying or cursing.

It would be too embarrassing and depressing to ask readers to write in and give details of how they have been ripped off when selling -- or possibly merging with or even buying -- another practice. It would however be interesting for one of the SOLO IP readers to review the free report which is on offer and to let us have a piece which we can publish on the blog that measures its contents up against any real-life perspectives that readers may have.

Tuesday 10 July 2012

Mediation Services

The IPO mediation room ?
The IPO is currently making a call for evidence to try and work out why it is not getting any mediation business. Is it because nobody suggests it, or no lawyers want it, or we are all just ignorant that the IPO has a service to offer.  It would be good to know so can we send our input.

From my viewpoint, I have aspired to use mediation far more often than I have ever achieved it. My best results have been with the mediation element of the Nominet Dispute Resolution Service. They have a simple approach and it costs nothing and it uses the pleadings you have already prepared. Best of all it takes place over the phone and is initiated by Nominet not the parties. It would be neat if the IPO were able to have a staff member read the Patents County Court Pleadings and offer a similar approach, though would it be before or after the CMC - ideas?

Other recent reasons why I have not got disputes into formal mediation include:
  • the parties are physically too far apart so coming together for a meeting is impossible
  • the other side tells me to stop calling and suggesting that settlement might be something we can discuss
  • its too hard to decide who will appoint the mediator and who will pay the cost
  • the £££ charge of the best mediators are disproportionate to the value in dispute
  • you mean we need a suite of three rooms in central London!
  • the decision makers are not prepared to come and spend the time on it - they employ lawyers they don't want to do it themselves
  • the idea of preparing a bundle and argument for the mediator is too much extra expense
  • the client thinks he is going to win
  • getting a debate going on the blogs and on twitter about the rights and wrongs of the case is so much more fun
  • a mediator cannot invalidate the patent/trademark/registered design
A mediator has to be a certain type of person, who is learned and fair without coming across as judgmental. The IPO has a role that involves making decisions and it may well be that this makes them come across as more on the side of the gamekeeper. However they are not-for-profit, whereas most mediators are working for profit, so its as good a starting point as any. Maybe all they need is a few more Google Ads.

Friday 6 July 2012

Holy grail or poison chalice? IP and legal services in Wales

One of my most frequent tasks as an editor is to correct terms such as "English Court of Appeal" and "UK Patents County Court". In each case the correct term for the jurisdiction is England and Wales.  The relationship between the two is sometimes similar to that of Switzerland and Liechtenstein -- the larger jurisdiction is dominant, but that does not mean that the smaller is in any sense insignificant.

Why are these reflections of interest to an IP blog? The answer lies in a recent Press Association news release, reproduced in relevant part below:
"The creation of a separate legal jurisdiction for Wales would be a major economic boost for the principality, Plaid Cymru AM Simon Thomas has said. The prospect of Wales having its own legal system could be on the cards following a government consultation.

Although no firm decision has been made, officials say the issue needs to be examined due to increasing differences between the law in England and in Wales following the onset of devolution.

The Welsh Assembly has powers in 20 devolved areas and since last year the institution gained primary law-making powers. However, even if laws passed by the Assembly only apply to Wales, they are still part of the law of England and Wales. ...

Mid and West Wales AM Mr Thomas [said].
"As distinct laws in England and Wales are created, it is inevitable distinct legal jurisdictions will be created eventually. "The question we have to ask now is whether we want to grasp the nettle and proactively work towards the goal of a distinct legal jurisdiction, or do we want to just leave it to evolve in an ad hoc and uncontrolled way? The creation of a distinct legal jurisdiction could be a real economic driver for Wales. Not just the fact that power will be closer to the people, but that the supply of skilled jobs in the legal profession will increase. It would mean more opportunities to keep our talented young graduates in Wales ...".
Thomas cited the precedent of Northern Ireland, where there is already a distinct legal jurisdiction and a justice system that employs around 16,000 people.

Not many Welsh names have been the subject
of applications for GI protection ...
Members of the IP fraternity will be aware that, while Northern Ireland and indeed the larger jurisdiction of Scotland, have their own legal systems, they share their IP statute law with England -- and that is where the vast majority of IP work, both contentious and non-contentious, is handled.

What might be the effect of dismantling of the current jurisdiction of England and Wales? Will it provide exciting new opportunities for small local IP practices to spring up in the hillsides -- or will it create small practices in a more painful manner, by causing more clients to prefer the tried and tested English system to a new, unfamiliar one and reducing some of the Principality's larger IP practices to small ones?

Tuesday 3 July 2012

Regulating Client Money

One of the major difficulties I encountered in managing an IP practice as a Solicitor was compliance with the detailed acounts rules. At present those regulated by IPREG have a delightful concise Rule 11.

"Regulated persons shall ensure that their professional finances are managed appropriately."

If you are acting as a litigator it is a little more complex but in either case "money on account for fees or disbursements paid up front" can sit in the Office account. Possibly many patent and trademark agents do not even have a client account. However Financial Matters are one of the areas set to change under the latest proposals and we are beginning to see detail coming in that will make our terms of trade get ever longer and the duties of our Head of Finance ever more elaborate. So we may get:

"In the event that a regulated person receives money from a client, other than by way of payment of fees or disbursements incurred, but including money on account for fees or disbursements paid up front, they should ensure that such money is held on trust for the client in an account which is entirely separate from the regulated person’s or the firm’s professional business accounts.

In the event that money may be held on trust for a client, a registered person’s terms of business should deal with the issue of ownership of interest earned on money held on behalf of a client."

Running Away with Client's Money by Ian Burt et al
It may well be that there is no other way than to require the client account. However money can be recived for a client from the EPO and OHIM as refunds of fees and this necessarily becomes mixed with office money in deposit accounts. Many of us will have different ways of dealing with this and the client will usually be told what they are if and when it arises.   The matter is further complicated by the fact that that money is in Euros and we account in sterling. Nothing so far has appeared in the Code about the vexed question of how to convert unpaid disbursments in foregin currency into sterling. It has been common practice to include a profit cost uplift here. Even if you try to make a genunine pre-estimate of actual cost my rule (Xe rate +5% plus £10) won't be yours and indeed if your charges for currency conversion are higher than £10 nor should it be.

If you are a client where there are substantial disbursments its best to discuss policies in the engagement process. However it is worth remembering that cutting costs in one area often results in them appearing elsewhere so the overall cost is the one that needs to be fair.

Keeping it simple means keeping no client money, but that forces you into valuing disbursments so lets all head of to the Banks looking for client accounts that won't deduct charges. Dont forget to tell your clients that such money accrues no interest due to them.

Of course if IPREG give guidance on all this we are all compelled to operate the same way and that will likley be the Solicitor's way and may be anti-competitive. Remember the Red Book.