Complaints: a matter of give and take

The various branches of the intellectual property professions, at any rate in jurisdictions where legal services are highly regulated and/or highly competitive, on account of there being too many IP professionals in relation to the amount of available work, are very sensitive to their image: are they trusted, are they respected, are they believed by current and prospective clients to be discharging their functions in a satisfactory manner?  The prospect of being reported to one's regulatory body in consequence of having slipped up or -- probably a good more often -- of having been thought to have slipped up, is a miserable one. For small and sole practitioners the discomfort is compounded by the fact that one is exposed and has nowhere to hide.  The small cog in a big wheel can hide behind the image of a large, faceless firm, while the small practitioner may be synonymous with it.

The situation is not much more comfortable when the small or sole practitioner is making a complaint, rather than receiving it.  Compliance with complaints procedures can be tiresomely repetitive, bureaucratic and time-consuming, even if this is for the laudable purposes of ensuring transparency in dealing with it and in seeking to establish whether the complaint is justified.  Where this is the case, and particularly where -- even where the complaint is justified -- no obvious damage can be attributed to the client, it is quite probable that a complaint will simply be left to fester in the mind of its real victim, the frustrated and inconvenienced practitioner.

The European Patent Office is highly conscious of the need to have a quality complaints procedure, and discussion within the profession has led to this week's sidebar poll on the IPKat weblog here.  If you have something to say about the EPO's complaints procedure, you will probably find the poll a little too short and simple -- but its organisers would like to hear from you anyway, whether you feel that the EPO is handling your complaints well or not.  The closing date for responses is this Sunday evening, 24 June, so don't miss the chance!

Let's all be Alternative

The UK Patent and Trademark Attorney's Regulator, IPREG has issued a Consultation on their proposal to apply for ABS licensing status. Being a small regulator and trying to keep things as simple as possible they have come up with the ingenious idea that every entity should be treated the same way, ABS or not.
Every Entity will need a Head of Legal and a Head of Finance and Administration. If they follow the Law Society interpretation of the equivalent SRA provisions these can be the same person, which is essential for the true SOLO.

Two heads are better than one from Paul Mannix

IPReg is also proposing to set up a Compensation Fund (required for ABS licensors). It would be hard to do this if only true ABS were required to fund it so I assume this was a big motivator for the single solution. This funding issue seems to be a problem for the Solicitors Regulation Authority too and they are consulting about it as well.
If you are already regulated by IPReg you should have received the papers directly by email on Friday. We are supposed to respond by 17 September.
Will these proposals encourage you to consider re-joining a partnership or getting into a larger association to ease the regulatory burden?
Will they make trademark only, non-litigation practices opt out of regulation altogether. I want to litigate so accept that there has to be regulation, but if you look in the Journal at the names of agents on UK trademark applications it seems that Google Ad-words are more influential on the market than indications of regulation.

Is facilitating SME access to the legal profession enough to give them the advice they need?

One of the striking, albeit predictable, issues identified in the independent review on intellectual property and growth, carried out by Professor Ian Hargreaves, was the difficulty faced by SMEs in obtaining the advice they need to make effective use of their IP.

When meeting small technology firms at TechHub, Hargreaves found that nine out of ten were interested in “an integrated source of advice which combines commercial and technical insight with legal expertise”.

A key problem Hargreaves notes in his report, along with the complex array of services on offer, and difficulties in determining which are reliable or trustworthy, is that:

At present, long established IP legal advisers (for example, patent attorneys) seldom offer expertise on the commercial aspects of IP.  Conversely, IP advisors with a business focus lack the detailed knowledge to assist SMEs in obtaining [intellectual property rights].

Based on this report the IPO is searching for solutions to facilitate access to this expertise, which can be crucial to the success of new businesses.  Surely, in light of the raft of other changes currently reforming the legal landscape like the introduction of Alternative Business Structures, and given the height of demand illustrated by Hargreaves, legal professionals will take the hint and respond to this need. 

I discuss the problems with the recommendations in more detail in my blog post Hargreaves: Why Internet and Social Media are Key Reasons SMEs Lack Access To The Right Type of Advice.

One issue is how the IPO might use solicitors to educate the public about IP.  Most people will have reason to visit a lawyer’s office at some point, and it could be a better use of the IPO’s time and resources to take advantage of the expertise, connections and sheer manpower that already exists in the legal sector, rather than investing further in developing their own offerings that have so far failed to address the problem.

My own view is that the report conspicuously failed to highlight the need to educate both lawyers and the public in IT.  The world has changed a great deal for businesses recently, and the web is now the main platform SMEs will use to launch new services.  Unfortunately, the lack of IT expertise in the profession means legal advice often fails to adequately account for this.  The report does note a number of positive steps that could improve access to IP advice, such as buddying up law firms with relevant expertise and smaller firms that lack it, or accrediting lower cost providers of integrated IP legal and commercial advice.  However, facilitating access to the legal profession does not address some of the core problems – as the next generation of lawyers come through the ranks, SMEs should be entitled to expect them to understand IT, the web, Social Media and other topics that influence modern business decisions.  I do wonder why such training is not a mandatory requirement of LPC students and trainees, and why the IPO is not spending public money more usefully in educating the professions, rather than trying to find low cost providers of IP/commercial services. 

In for the long haul? Can you compete with the One-Stob-Shop:

One of the most surprising and unexpected news items of the year, if not the century, is the decision of road hauliers and transport company Eddie Stobart to diversify into the field of legal advice. The Stobart Barristers website makes a refreshing change from those of traditional chambers, and presumably the brand image of the underlying business (clean lorries, niftily driven with a view to reaching the desired destination in the minimum of time and at a competitive price) is expected to boost its legal profile too.

This curious development has repercussions for readers of this blog who struggle to earn their humble crust through the practice of intellectual property law: Stobart Barristers is offering legal services in the field of copyright law. At this rate, small and solo IP practitioners may be left with nothing but small cases (below).

Client science

Roaming around the Exhibit Hall at this year's International Trademark Association (INTA) Meeting this year in Washington DC, I came across a neat little paperback published by Oxford University Press out of its New York office and obviously aimed at the US market -- but which looked as though it has plenty to offer non-US readers too, particularly for those with small practice in which the personal side of counselling and client relationships is not merely a bit of expensive veneer but the basis on which a practitioner-client relationship survives or withers.

The book is called Client Science: Advice for Lawyers on Counseling Clients through Bad News and Other Legal Realities, and it's by Marjorie Corman Aaron, Professor of Practice at the University of Cincinnati. According to the book's web page,

"Lawyers know that client counseling can be the most challenging part of legal practice. Clients question and often resist the complexities and uncertainties inherent in law and legal process. Honest advice from the lawyer can make a client doubt his or her allegiance and zeal. Client backlash may be directed at the lawyer who communicates bad news. Thus, the lawyer may feel torn between the obligation to clearly inform a client about weaknesses in legal positions and fear of damaging the client relationship. Too often, the lawyer struggles to counsel a particularly difficult client, but to no avail. 

Client Science is written to provide insight and advice to lawyers on how to more effectively communicate with their clients with regard to legal realities and difficult decisions. It will help lawyers with the always-difficult task of delivering "bad news," which will result in better-informed and thus more satisfied clients. The book explains applicable social science research and insights and translates them into plain language relevant to legal practice and client counseling. Marjorie Corman Aaron offers specific suggestions related to a lawyer's ordering, timing, phrasing, and type of explanation, as well as style adjustments for the lawyer's voice, gesture, and body position, all to impact client counseling and to improve the lawyer-client relationship".

All this stuff about gesture and body language sounds good. If it works with clients, one might even try it on one's colleagues ...

Improving Access to IP Advice

One of the more contentious aspects of Hargreaves was the criticism of patent agent's ability to provide the IP Advice service that SMEs require. In early April the IPO published a discussion paper called From Ideas to Growth: Helping SMEs get value from their intellectual property and the accompanying page now announces some round table discussions in London on 8 May and 22 June and in Newport on 16 May. Chapter 2 of the booklet deals with ideas to get IP advice to SMEs at lower cost.

Lovable low cost Advice or a Home Office from CitrixOnline

Let's face it this is not going to be an easy discussion in which to get the mainstream patent profession to participate. The report was a direct attack on the existing profession. We are not providing the required service at the right price or at all. The initial response to these new proposals is likely to be defensive rather than  constructive.
IP advice is not regulated, nor is patent drafting. Only qualified people can call themselves patent agents, so there is plenty of scope for advisers to enter the market if they choose to. Many have, so the first proposal the IPO have put forward is to publish an online directory that provides names and qualifications so businesses can pick and choose what they think they need. That seems to be about the extent of the proposed involvement of the private sector.
The next section deals with getting advice into public sector programmes which seems to be more awareness related and something the IPO itself will take on.
There is a short section on the Technology Strategy Board's Catapult Centres. They sound interesting places and it would be very interesting were they to contain some patent resources. Are there any jobs or even office space going in these organisations? Some SOLO members might find it fun to be based in one.
The PatLib Library Network gets a welcome boost and maybe some much needed resources.  See its blog which highlights some of its members activities. Note that business can have a free one hour consultation with a patent agent if they are prepared to wait up to 6 weeks.
Local Enterprise Partnerships may have a role.
An Independent IP Advisory service is then proposed which suggests what many SMEs want is patent advice on a subsidised basis. The ides is that this might be associated with or linked to the Manufacturing Advisory Service

So far I don't see any proposal for a Business Masterclass for patent agents to make them more commercially aware of how IP really develops within a business. Only occasionally do patent agents get full feedback on the impact of IP on the long term business cycle and never if they work in firms who major on the profitable agency work, so access to real business school training might be welcome.

The effort needs to go to support those businesses prepared to accept some level of risk, who aim to develop businesses on a decent scale and can attract and manage significant levels of investment. Those are perhaps businesses likely to apply for TSB grants, rather than those who walk into a library. It is to be hoped that this project really helps to boost the benefits of working with competent IP advisers. Perhaps I will see you at the IPO's new Westminster office on the afternoon of Friday, 22 June to toss these ideas around a bit more. Question is how do you reserve a place?

Happy World IP Day

26 April is World IP Day.   Let's celebrate this momentous day when all should be pondering the great contribution that Intellectual Property makes to our society and civilisation. At the same time let's remember:
You can't own Information

Information or knowledge was made to be shared. It is a basic building block of civilisation and when we don't share and teach, knowledge and wisdom is lost and has to be rediscovered. The misunderstanding that you can own it leads to all sorts of trouble.
It leads to to wasteful treaties on traditional knowledge when all that is necessay is to give originators proper credit;
It leads to confusion as illustrated by this CNet story when Google Drive say they need a licence to copy your data for storage, which they do but it can and should be very limited indeed;
It leads to Force India believing it "owned" far more than it had kept secret and a court hearing before Mr Justice Arnold over 14 days and a 122 page judgement on 21 March 2012 very concisely summarised for commercial purposes here by Wragges;
It leads to the idea that just by paying a lawyer to spend time on patent searches you can avoid patent disputes;
It leads to the UK IPO failing to understand why many design based businesses get on with life and dont feel the need to protect their design work but allow it to be shared;
It leads to Twiter creating an Innovator's Patent Agreement so that it can obtain business method patents that it will not enforce

Countries including the UK do create Intellectual Property Rights that are usually limited in time and always in scope that allow their holders to control certain information. The idea is usually to facilitate investment and the wider disseminatation and use of the Information. If you use IP I do hope that its for the greater good of society and that you have a happy World IP Day.