Monday, 24 November 2014

Bringing high quality advice and advocacy to those who need them most but can often afford them least

Jane Lambert

When I practised on my own account from the Media Centre in Huddersfield my strapline was
"Bringing high quality advice and advocacy to those who need them most but can often afford them least."
 Although I now have to charge more because I have much higher costs I try to do the same in London.

It is now more necessary than ever because the Legal Services Consumer Panel wrote at page 5 of their report 2020 Legal Services How regulators should prepare for the future November 2014:
"The core challenge ahead is to extend access to justice to those currently excluded from the market because they cannot afford legal services. This need and other forces, including government policy, consumer empowerment, technology and the effects of liberalisation, will combine to result in less involvement by lawyers in many of the tasks that until now have made up their staple diet. Consumers will seek alternatives to lawyers or use them in different ways. In place of lawyers will be greater self-lawyering, online services, entry by unregulated businesses, and also by regulated providers, such as accountants and banks, who will diversify into the law. Calls will grow for more radical solutions that cut lawyers out, such as an inquisitorial style of justice and online dispute resolution, which are better suited to the new funding realities. The consumer interest will lie in resolving the tension between cost and quality, and determining when a lawyer is needed and when alternatives can safely suffice. Regulated lawyers should be viewed as a small part of an increasingly diverse ecosystem of legal services delivery; improving access will require looking at how the whole system will work in future around consumer need."
This is consistent with the speech of the Canadian futurologist Jordan Furlong to the Legal Futures Conference ("Knowledge gap between lawyers and consumers 'narrowing all the time'” 21 Nov 2014 Legal Futures).

This might sound rather depressing news for lawyers but it need not be. In reviewing Professor Susskind's Tomorrow’s Lawyers for the Law Society Gazette on 14 Jan 2013, my friend Joanna Goodman wrote:
"Tomorrow’s Lawyers, Susskind’s latest book, has a more optimistic title than The End of Lawyers? (2008), which he has referred to as ‘The End of Lawyers – question mark’.Tomorrow’s Lawyers removes the question mark and sets out a vision for the profession’s future."
In other words we do have a future so long as we respond to the "core challenge" identified by the Legal Services Consumer Panel. When it costs hundreds of thousands of pounds to litigate in the Patents Court and possibly more to fight a passing off or copyright dispute because of the need for oral evidence to prove confusion or copying it is not just the poor who are excluded from the legal services market but quite substantial businesses and institutions.

What can we at the IP Bar do to make the law more accessible? "Reduce your fees" is the usual call but that ignores the fact that it takes a lot of time and money to train a lawyer and even more to run a law practice. The answer is to use lawyers more effectively and technology certainly has a role there.

The other thing we can do is to make clients (particularly small businesses and their lenders and investors) aware of the cost saving opportunities that already exist. You don't have to patent every technology in every country in order to protect your investment in technology. Other legal and sometimes non-legal solutions can protect your investment and position in the market just as effectively. You don't have to fight every case in the multitrack. Most of the copyright, design right, passing off, trade mark and breach of confidence cases that I fought before the Vice-Chancellor of the County Palatine of Lancaster and his deputies over the last 30 years could now be litigated in the Intellectual Property Enterprise Court Small Claims Track where the costs and risks are minimal (see
Patents County Court - the New Small Claims Track Rules 20 Sept 2012 NIPC Law and the articles and presentations linked to that article. You can resolve generic top level domain name disputes for just US$1,500 by using the Uniform Domain Name Dispute Resolution Service (see "Always consider the UDRP first" 31 Aug 2014 NIPC Law) and many patent disputes through the IPO opinions service (see "Intellectual Property Act 2014: The New Law on Opinions" 29 Oct 2014 NIPC Law).

If you want to discuss this article, dispute resolution or intellectual property generally, give me a ring on 020 7404 5252 during office hours or message me through my contact form.

Wednesday, 5 November 2014

Intellectual Property Act 2014: Annual Report on Innovation and Growth: First Annual Report from the IPO

Jane Lambert

If there is one thing that the IPO is good at it is writing reports which is just as well as it was ranked 12th in 2012 in the the list of top 15 patent offices by number of patent applications which was the last year that the World Intellectual Property Office ("WIPO") published that particular league table (see page 17 of WIPO IP Facts and Figures 2012). No doubt it will slip still further after unitary patents become available because why would anyone want a monopoly of an invention for a small, crowded, offshore island which came within an ace of fragmentation last September when they can get a European patent for nearly the whole of the EU as though it were a single state?

S.21 (1) of the Intellectual Property Act 2014 requires the Secretary of State before the end of the period of 6 months beginning with the end of each financial year to:
"lay before Parliament a report setting out—
(a) the Secretary of State’s opinion of the extent to which during that year—
(i) the activities of the Patent Office have contributed to the promotion of innovation and of economic growth in the United Kingdom, and
(ii) legislation relating to intellectual property has been effective in facilitating innovation and economic growth in the United Kingdom, and
(b) how the promotion of innovation and of economic growth in the United Kingdom was taken into account in the case of any legislation relating to intellectual property that was passed or made during that year."
As the Act was only passed last May this obligation does not arise until next year but "the IPO wanted to start this good practice immediately" so this is the first report on the IPO’s work to support innovation and growth in the UK, covering the period from April 2013 to March 2014.

The report Supporting Innovation and Growth: a report on the work of the IPO  2013/14  appeared on the IPO's website yesterday. There are the highlights of the report as set out in the executive summary:

  • increasing the exceptions to Part I of the Copyright, Designs and Patents Act 1988 which is said "to ensure that our copyright framework reflects the impact of new digital new technologies" and somehow "contribute over £500 m to the UK economy over 10 years";
  • concluding negotiations on the European Directive on Collective Rights Management, signing the Beijing Treaty on the Protection of Audiovisual Performances, working in collaboration with other IP Offices to tackles issues around increasing patent backlogs and giving direct support to over 200 businesses dealing with IP issues worth over £370 million and helping a further 3,400 UK businesses through outreach and education work;
  • developing new ways of working to improve efficiency without loss of quality such as a new electronic processing system for trade mark applications and working with customers to develop on-line services for patents;
  • building awareness for IP;
  • passing the Intellectual Property Act 2014;
  • tackling IP crime; and
  • completing a programme of research to strengthen the evidence base on intellectual property.
Apparently the UK was judged to be the best location in the world for obtaining, exploiting and enforcing the main IP rights but the executive summary does not say who did the judging.