Is elitism justifiable in IP?

no go areaLast week, IP Draughts briefly put his head above the safety of the trench by suggesting that professional knowledge and experience were necessary to take good decisions on IP issues. This week, he jumps out of the trench entirely and runs across no-man’s-land, wearing a large red arrow on his back.

In IP Draughts’ view:

  1. There is a collective attitude among some specialist IP practitioners, including judges, solicitors, patent attorneys and barristers, that could be described as an elitist approach to practising IP law. It is difficult to write down the precise recipe, but it is a mixture of academic aptitude, technical skills, professional attitudes, peer status and social conformity.
  2. Providing a good service to clients and taking good decisions in court doesn’t need this particular mixture of attributes. It acts as a barrier to diversity in the profession and as a barrier to communication with clients.

A couple of examples from IP Draughts’ experience will illustrate the point.

  • The selection of junior IP judges in the Copyright Tribunal and as Appointed Persons in trade mark and design matters. The individuals who were appointed to the latter role a few months ago are all talented individuals. But it is notable that they are all barristers, at least one of whom seems to be destined for higher office. IP Draughts knows talented and experienced solicitors who could do the job well but may not fit into the self-perpetuating ‘IP elite’ mould. IP Draughts wonders whether the selection process favoured IP barristers, despite the senior judiciary’s vocal support for solicitors to become judges. (For the record, IP Draughts did not apply and has no interest in applying for these roles, but he does know someone who was unsuccessful in the last round of applications.)
  • The diversity of the IP professions can be shown to have increased in recent years, when measured by things that are measurable, such as the number of women, non-whites, first generation graduates, and so on; but more needs to be done. An interesting take on this subject from Daniel Alexander QC appears in his interview with New Africa Analysis. In the areas that cannot be measured so easily, such as adherence to a set of self-perpetuating values that exclude people who don’t share those values, it is more difficult to determine whether progress is being made. One might assume that diverse people will mean diverse values, but is that the case? The Chartered Institute of Patent Attorneys has had two women presidents recently, and the current president, Andrea Brewster, is leading steps to improve diversity in the profession. But she recently felt obliged to stop writing a regular article in the CIPA Journal, which she had written for years, because of pressure from certain CIPA members. Her light-hearted, self-deprecating, humorous articles presented a different view of the IP profession and made it seem less dour and serious. But some members considered that the articles gave a bad impression of UK patent practitioners, particularly when written by the president of their profession, and complained loudly about them. It was inevitable that the articles stopped. IP Draughts hopes they will resume once Andrea’s term of office comes to an end.

To IP Draughts’ mind, these small examples illustrate a set of narrow, collective attitudes in which there is felt to be a single ‘right way to do things’. This is not to say that everyone in the IP professions shares these attitudes. But enough people do to make the attitudes influential.

eliteThe attitude is not unique to IP lawyers: it can be seen in other areas of commercial law. An extreme example, perhaps, was the appointment of the ‘brilliant’ Jonathan Sumption QC direct to the UK Supreme Court. Other current justices of the Supreme Court worked their way up through the ranks from (in the case of lawyers practising in England and Wales) the High Court to the Court of Appeal and then on to the Supreme Court.

Lord Sumption has also illustrated the point through his recent comments about the need to increase the number of women in the Supreme Court. He favours selection of the ‘best’ judges, rather than taking more active steps to increase the number of women.

Leaving aside the question of whether there should be any positive steps to improve diversity (and thankfully Lord Neuberger, the President of the Supreme Court, takes a more enlightened view than his colleague) Lord Sumption’s approach assumes that there is a clear and objective set of criteria for ‘best’. No doubt he would advocate criteria that play to his strengths, such as intellectual brilliance, long experience of courtroom advocacy at the highest level, and please don’t discriminate against Old Etonians. Alternative criteria, such as reasonable intellectual powers, moderate experience, social diversity, good judgment, commitment and a desire to learn and do the best job possible, may not cut much ice with someone of his traditional cast of mind.


Filed under Intellectual Property, Legal policy

4 responses to “Is elitism justifiable in IP?

  1. You’re right about defining ‘the best’.
    Ideally, you’d want ‘elite’ to go back to meaning “A select group that is superior in terms of ability or qualities to the rest of a group or society”; rather than “A group or class of people seen as having the most power and influence in a society, especially on account of their wealth or privilege”.

    Andrea’s column is sorely missed. It was most fun bit of the magazine.

    • Agreed, though I am also questioning whether following a linear scale of eliteness, based on superior abilities of legal analysis and argument, serves justice best. Instead, should we think in terms of a threshold of (perhaps very high levels of) competence, then value difference among candidates who achieve the threshold.

  2. Depends what the IPEC judge is doing on BGT. Is he judging or performing? Perhaps IPEC could be outsourced to Simon Cowell’s production company? And the court renamed as Britain’s Got Innovation (TM)?

  3. Really liked this article Mark.

    I think your point about the “best” not being objectively determined is a crucial point. We all bring our ideas of what is good and best to the table. So long as there are some objective criteria to meet eligibility for the role (not a small task to determine either) all other traits and interests (satirical article/blog writing included) should be welcomed.

    I guess we’ll know we have gone too far when the head of IPEC appears on Britain’s Got Talent?

    Kind regards, Mario

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