Maelstrom in a teacup: IP professions should be lovers not fighters

According to the Legal Services Act 2007, there are 8 legal professions in England and Wales (or, to use the lifeless terminology of the Act, 8 categories of “authorised persons” that are regulated by “approved regulators”).

 

 

1. Solicitors
2. Barristers
3. Notaries
4. Legal Executives
5. Licensed Conveyancers
6. Patent Attorneys
7. Trade Mark Attorneys
8. Law Costs Draftsmen

The approved regulators are under the overall supervision and control of the super-regulator, the Legal Services Board. In the case of solicitors, the approved regulator is the Solicitors Regulation Authority (SRA). The regulator for patent and trade mark attorneys is known at IPREG. For historical reasons, the regulator for notaries is the Archbishop of Canterbury, through his Faculty Office.

In past decades, there was a degree of rivalry between patent and trade mark attorneys (PTMAs) on the one hand, and solicitors on the other. No doubt there was further rivalry between patent attorneys and trade mark attorneys, otherwise why would there be separate bodies representing these two tiny professions, but that is a subject for another day.

The rivalry between PTMAs and solicitors could be seen:

(1) in the campaign by PTMAs in the 1980s to be permitted to call themselves attorneys rather than agents, against rearguard defence by some solicitors who argued that PTMAs were the equivalent of patent agents in the US and would not be allowed to call themselves attorneys in the US as they were not qualified lawyers. US clients would be misled, so the argument went, into thinking that UK patent attorneys could provide general legal advice. Solicitors lost that battle, as evidenced by the enactment of section 278(2) of the Copyright, Designs and Patents Act 1988. Subsequently, the professional bodies for both patent and trade mark attorneys have renamed themselves by dropping the word “agent” from their titles and substituting the word “attorney”.

A few years ago, the Institute of Trade Mark Attorneys (ex-Agents) registered the name “trade mark attorney” as a certification trade mark, much to the consternation of solicitors practising in the trade mark field. Those concerns were eventually mitigated following a mediation and settlement that allowed solicitors to use the name trade mark attorney. There seems to be no end to the ways in which conflict can be continued under the heading of pursuing professional interests.

(2) in the campaign by PTMAs to gain rights of audience in the UK courts (ie, to appear as advocates before the court) in IP matters. This campaign has also been successful.

Thus, there has been a general trend to improve the legal status of PTMAs, to the point where they are now recognised by legislation and legal practice as lawyers, having largely the same privileges and duties as solicitors.

The downside to this is that PTMAs are learning just how tediously bureacratic the regulation of lawyers in the UK can be. Issues that IPREG has been grappling with include whether PTMAs must, as solicitors must:

• have detailed rules of conduct, including on such subjects as conflicts of interest, complaints-handling, and diversity
• comply with EU money laundering regulations when taking on clients
• maintain separate “client accounts” for money held on behalf of a client

Much of the regulation that has developed for solicitors has been focussed on protecting consumers, as distinct from business clients. As politicians increasingly pander to consumerism, professions are mistrusted and the last vestiges of self-regulation are stripped from them. Instead, regulation is done by independent bodies run by politically-appointed committee-professionals and staffed by non-lawyers who use their own jargon such as “learning outcomes” and “behaviours”. People who have no experience of being an excellent lawyer can only measure those things that are capable of being measured, such as numbers of complaints or whether we have been to a private school. These may be relevant issues, but they are only a part of the picture. Regulated by outsiders, we lose some of the ethos that come from regulation by peer pressure, and which has helped to make the English legal profession respected internationally.

In this new world, PTMAs are just as vulnerable to interference and misrule by the political elite, all in the name of protecting consumers, as solicitors are. As indeed, are all professionals. Recently, we learnt that Government is considering the development of a new medical profession, somewhere between nurses and doctors. There were hints in the air that something similar might be contemplated for patent advisers, following the Hargreaves Review, but so far little has come of it other than the misguided sponsoring, by the UK IPO, of a British Standard for Commercial IP Advisers. Meanwhile the English criminal bar is being decimated by the introduction of a defender service.

Viewed from not very far away, PTMAs and IP solicitors are almost identical in their activities, professional regulation, and vulnerability to political interference. This should lead them to make common cause to protect themselves from outsiders, not fight among themselves like Afghan tribesmen.

In parallel with increased political interest in the IP/legal/any and all professions, is the increased interest in the substance of IP laws. This operates at two levels: the impotent national level, as indicated by a wearisome and unimpressive series of Government reviews, including Hargreaves; and the plenipotential EU level, where there is a continuous stream of legislative proposals. CIPA and the Law Society of England and Wales have committees that consider these proposals and reviews, and provide thoughtful and detailed responses to them. In IP Draughts’ view, there should be more joint activity by PTMAs, IP solicitors and other IP professionals when making these responses. For example, has CIPA considered asking the Brussels office of the Law Society (actually it is a joint office of several Law Societies) if it could come under its umbrella?

A similar point could be made at an international level. IP Draughts is a member of the Law Society of England Wales’s IP Committee and we have recently started discussions with the Irish Law Society’s IP Committee about cooperation in responding to EU IP proposals. This seems so obviously a good idea once it has been raised, but it is not always obvious before someone thinks of it.

Surely it is time for the UK IP professions to work together both on professional regulation and on new developments in IP law? Who knows, perhaps in time they might merge into a single profession?