IP news: courses and cases

We seem to be in a lull between the Summer holidays and the start of Autumn. In a couple of weeks, IP Draughts restarts his teaching programme. Details of forthcoming courses can be found here.

Our flagship course, the one-week IP Transactions course, will be run at UCL from 8-12 November. Last year, the course was run entirely via Zoom. This year, it will be run as a hybrid – both in person and (for those that prefer it) online. This is subject to national developments in relation to Covid. Applications for this course are coming in fast; IP Draughts approved several applications this week.

IP Draughts is delighted to see that his fellow-speaker on the course, and long-time professional friend, Gina Bicknell, has recently joined Pinsent Mason as a partner. IP Draughts has known Gina for about 20 years, since she worked at UCL Business in a technology transfer role, and helped IP Draughts and his co-writer Victor Warner, with research for one of their publications.

For those who can’t take a week off work for a course, however good it might be, we have more bite-sized courses, including this IP Agreements course which is run as a series of one-hour talks over several weeks. This is different to the one-week course in its content and focus, and you only get one speaker – IP Draughts. If you are interested, have a look at the course details on the UCL Laws website.

There are slim pickings for IP lawyers in the English court reports at present. Most striking is a recent Court of Appeal decision on IP infringement, in which the court decided that Arnold LJ had got the law wrong, when deciding the case at High Court level. Ouch!

More interesting to IP Draughts is the High Court’s decision to keep Prince Philip’s will secret. It seems that it has long been the court’s practice to keep senior royals’ wills secret, but the justification for this was not widely known. This decision explains in detail the legal justification.

The judge cites Walter Bagehot’s 1867 book, The English Constitution, which IP Draughts read as an undergraduate. He still has his copy, 40 years later. Bagehot referred to the constitution needing two parts. As the judge puts it:

‘one to excite and preserve the reverence of the population’ and the other to ’employ that homage in the work of government’. The first Bagehot called ‘dignified’ and the second ‘efficient’. The monarch was the prime example of dignity in this sense.

To summarise the judge’s thinking, if you are going to have a monarchy, it needs to retain some privacy “in order to protect the dignity and standing of the public role of the Sovereign and other close members of Her family.”

IP Draughts suspects that the Daily Mail might not agree with this idea. Some members of the Royal Family might like this principle to be expanded into other aspects of royal life.

Finally, IP Draughts was intrigued to see that his 2015 blog article on the ownership of a Banksy art work (referring to a court decision by the aforementioned Arnold J) is having a spurt of popularity, at least if measured by the number of readers recently.

The difficult role of General Counsel

IP Draughts has been reading the independent review by Alison Levitt QC into goings-on at the Royal Institution of Chartered Surveyors. It is not pleasant reading.

As the review notes:

[it] was commissioned following the publication of a number of articles which alleged that the Royal Institution of Chartered Surveyors had tried to suppress a critical internal report into its finances and then unfairly dealt with those who had sought to explore the issue.

IP Draughts thanks Professor Richard Moorhead for drawing his attention to the review, and for his commentary on the role of lawyers in the events described in the review.

The review describes cash-flow problems, an unfavourable audit report by external auditors which was not disclosed to certain RICS committees, and the sacking of four non-executives who asked awkward questions. Alison Levitt refers to a dysfunctional organisational structure, and a management team that was engaged in a power struggle with members of the RICS Council and its committees.

Some of the descriptions of management keeping the Council in the dark and even being patronising to its members, are alarming but plausible. Over his career, IP Draughts has encountered some management teams that have seemed to treat their governance structures as an irrelevant nuisance.

All of this makes IP Draughts pause, as he is about to start a four-year term as a member of the Law Society Council. The Law Society is a representative, professional body, as is the RICS. In its favour, the Law Society has reformed its governance arrangements in recent years. He has yet to discover whether those reforms have worked.

One aspect of the RICS saga that Richard Moorhead focuses on is the role of RICS’s General Counsel. The review gives IP Draughts an impression of someone who saw their role as supporting senior management, rather than the “controlling mind” of the organisation, which Alison Levitt considered to be the Council.

Is it surprising that an in-house lawyer would consider their role as one of supporting the Chief Executive rather than the non-execs in question – people viewed as “trouble makers” who were asking difficult and inappropriate questions? IP Draughts is not remotely surprised, particularly if there is a strong-willed CEO and a weak chairman. This issue is magnified if the governance structure is unclear and not fit-for-purpose.

The review also discusses the role of a senior partner from FieldFisher, who was providing much of the advice to senior management, including advice that was rebranded as coming from the General Counsel. The General Counsel had worked at FieldFisher for several years before becoming GC.

One of Alison Levitt’s recommendations to RICS is that its General Counsel or head of legal should not be someone who previously worked at RICS’s external solicitors. This throws the spotlight on a practice that IP Draughts has come across many times before.

All of this confirms to IP Draughts how important it is for a General Counsel to have clear lines of communication with the governing body of the organisation, and to work for a CEO who respects and supports the GC’s independence.

Do you want an excellent IP career?

Major UK law firms offer extraordinary salaries to inexperienced people. See, for example, this table of salaries from Chambers, which show some firms offering newly-qualified solicitors six-figure sums.

The quid pro quo is, of course, extraordinary hours of work, and the associated stress. Some people thrive in this type of environment; others do not. Or they cope with it for a few years, then look for a more normal lifestyle.

What if there were a different way of practising law at the highest level? One where you get in-depth training, and the opportunity to develop your skills, without being dropped in at the deep end? In a law firm that is still at a human scale, with colleagues who are listed as experts in the legal directories? At a location that is attractive, and where you don’t have to spend 2-3 hours a day in commuting? With IT systems that have enabled home working since long before Covid appeared. And the opportunity to work with high-quality clients? And a work environment that isn’t focused on billable hours?

Anderson Law has been practising law in this way for over 25 years. We are now up to 17 people. The firm and some of its lawyers are recommended in Chambers (IP leaders outside London, and Life Science Transactions – UK wide) and in the specialist IP directory, IAM Patent 1000. In fact, we are the only small firm to feature in some of these lists.

We start our trainees on £30,000 per year, which is better than some of the salaries mentioned at the link above. And there are steady increases each year. We don’t think we are cheapskates, but nor are we able to offer stratospheric salaries. If you are someone who judges their career mainly on their salary, we are probably not for you.

But if you are looking to become an excellent IP lawyer, where the lawyers you encounter in negotiations are often from leading firms, and where you are given support to become as good if not better than them, perhaps you will consider joining us. You will have the opportunity to help grow the firm, and perhaps become a partner one day.

We will be advertising vacancies for trainees in the coming months. We also take on a few experienced lawyers as opportunities arise. Please contact us if you think you would fit in with our approach.

Podcast here.

First thing we do: let’s kill all the indemnities

Let’s kill the indemnities – yeah!

IP Draughts

DICK
The first thing we do, let’s kill all the lawyers.

CADE
Nay, that I mean to do. Is not this a lamentable
thing, that of the skin of an innocent lamb should
be made parchment? that parchment, being scribbled
o’er, should undo a man? Some say the bee stings:
but I say, ’tis the bee’s wax; for I did but seal
once to a thing, and I was never mine own man
since.

One of IP Draughts’ former clients had a poster on the wall behind his desk. The poster was in IP Draughts’ sight-line whenever they met in the client’s office. He found it difficult to concentrate on the questions that the client asked, as the poster read “The first thing we do, let’s kill all the lawyers,” which is a quotation from Henry VI, Part 2, by William Shakespeare.

On reading the quotation again, IP Draughts…

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