Category Archives: Legal policy

The Legal Manufactory

Why would anyone, starting out in their career, decide to become a lawyer? According to the visionaries and marketing men, the era of the traditional lawyer is over. It is so twentieth century! Instead we have become legal process engineers, for whom a knowledge of computer coding may be as important as a knowledge of case law on constructive trusts.

The astute visionary, seeking to convince his audience, must give practical examples to which the audience can relate. The examples given in the legal sector sometimes focus on the benefits of new technology, and other times focus on competitive pressures (real or desired) on the legal profession.

We can automate the due diligence or discovery process using current technologies, though manual sifting of the results is usually still required. We can create online courts for certain types of dispute, though lawyers and judges will still have a role. We can even automate the process for preparing a contract, using detailed questionnaires. But someone needs to prepare the questionnaire and draft the multi-option contract template that underlies the automated system. And, no matter how much automation has been used, the transactional lawyer needs to approve the final product as suitable for his client’s deal.

As with driverless cars that still have a human in the driving seat, we have varying appetites for allowing a computer to decide everything. As with electric cars that currently (a) cost more than petrol cars, (b) only work for long journeys if there are charging points at suitable intervals, and (c) require downtime to allow the recharging to occur, most of us will treat them – electric cars and some legal automation technologies – as novelty or luxury items for many years to come.

The competitive pressures on lawyers come from different directions and with varying degrees of force.

  1. From commercial clients, there is some pressure on law firms to be seen to be taking steps to re-engineer their processes. As well as the use of new technologies, there is the outsourcing of routine legal tasks to lawyers in lower-cost centres, from India to Northern Ireland. But IP Draughts is not sure how real these pressures are. If a client is sufficiently price-insensitive as to use a major London law firm when there are plenty of other, experienced commercial law firms across the country, it suggests that financial considerations are still not at the fore of the commercial client’s thinking.
  2. Consumer clients are not perceived as having much competitive power, and pressure comes instead from their proxies, including politicians and regulators. But the growth of McKenzie friends suggests that, if not prevented by the regulatory system, some consumers will gravitate towards non-lawyers to provide their legal services.
  3. The virtual abolition of legal aid (government reimbursement of legal costs for poor people) has put considerable pressure on legal practitioners who made most of their income from this route, and on free advice centres whose customer base has increased as a result. This has indirectly created pressure on the legal profession, as there is then greater focus on why the (unsubsidised) legal system doesn’t provide services at a price that consumers can afford. There is a vague and hopeful view that if only the regulatory constraints were loosened, and outside investors were enabled to create new types of legal factory, the loss of legal aid would become unimportant.
  4. Thus, politicians pressurise the legal regulators, and the legal regulators then come up with inventive ways of seeking to stimulate the market for new entrants to the legal profession. The regulators may think they are just shaking the tree to cause some fruit to fall, but there is a danger that the shaking may disturb the roots of the tree so much that it dies, or stops producing fruit. Any competent gardener would have told them they were applying the wrong kind of pressure, but regulators tend to be controlled by the professional quango elite nowadays, rather than experts in the subject-matter of the regulation. As a UK politician said during the Brexit campaign, the people have had enough of experts.

IP Draughts doesn’t complain about the use of technology. When he started his own firm 23 years ago, it was technology such as the fax machine, the laptop computer and the mobile phone that enabled him to compete with large firms. He was also pleasantly surprised at how easy and cheap it was to practice on his own account – much simpler and cheaper than it is now in the era of the Solicitors Regulation Authority.

He is concerned about the current, blundering incompetency of the legal regulators, and their inability to distinguish between opening up the market to new entrants (inter-profession competition) and interfering in the internal practices of the existing legal professions (intra-profession competition). By all means allow new categories of regulated organisation to provide legal services . But don’t dictate how a solicitor is trained, keeps up-to-date, and offers legal services – these are internal matters that help to distinguish the solicitor brand, and the SRA, LSB and other regulators should keep out of them.

Coming back to the original question, the pressures of new technologies and the market will likely change the way in which some lawyers practise, and for some it may be a less satisfying or financially rewarding role. No doubt there will be an increase in legal factories, run by non-lawyers, though IP Draughts would never want to be involved in such an enterprise.

But, in IP Draughts’ view, there will always be a need for the wise counsellor who guides the non-lawyer through the maze of online courts and outsourced [electronic] paper pushers, and manages their legal problem or opportunity. Of the 160,000 solicitors who are currently on the roll of the Law Society, perhaps half this number will have this role in a few decades’ time, and the rest will be working in other types of legal or non-legal role. IP Draughts hopes that the Law Society will retain its role as the ‘guild’ for those who follow the wise counsellor route. If it tries to cater for all types of lawyer and legal engineer, it may end up satisfying none.

 

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What will the next UK government do about IP?

This time next week, the UK is likely to have another Conservative government. None of the party leaders seems to be greatly inspiring the voters. The Brexit issue is still central. The mood of the electorate appears to be one of resignation to the inevitability of Britain leaving the EU, with little appetite for reversing the decision, and a vague hope that the Prime Minister can do a good deal, as she has been claiming.

Like many, IP Draughts was surprised to read that the Secretary of State for Exiting the European Union, David Davis, had claimed earlier this week that “over a hundred pages of detail” had been published on the UK’s negotiating position for Brexit. IP Draughts had assumed that this meant that the government had moved from airy principles to a slightly more detailed position. He had been planning to comment on the absurdity of thinking that thousands of detailed Brexit issues could be reduced to 100 pages.

But, listening to the radio broadcast just now, he realises he was naive. The Secretary of State was simply adding up the page numbers of several statements of principle made at different times, including the White Paper, notification letter to the European Union, and so on. The Secretary of State’s claim is even more vacuous than IP Daughts had first thought.

The IP Law Committee of the Law Society of England and Wales, currently chaired by IP Draughts, is in the course of preparing a table that summarises the main IP-related Brexit issues and our recommendations for how to deal with them. So far, the table has reached 24 pages of A4 paper, and over 6,000 words of text. This is a short-ish note of headline issues rather than a detailed briefing paper.

There are hundreds, if not thousands, of other trade-related, Brexit themes of similar significance to IP, including (to take a few that come immediately to mind):

  • mutual recognition of judgments
  • the Euratom treaty and future cooperation in atomic research
  • the regulation of medicines
  • VAT laws
  • data protection

Assuming that UK civil servants are preparing detailed briefing notes on each of these topics (plus short summaries for ministers), IP Draughts estimates that there will be hundred of thousands of pages of detail going in the direction of the Department for Exiting the EU.

IP Draughts fears that, in this blizzard of paper and electronic documents, IP issues will be relegated to something like schedule 27 to an overall briefing note, and will not be given the attention it deserves. He is also concerned that there are cross-cutting themes, affecting IP and other subjects, whose importance may be missed.

Many years ago, the management guru, Charles Handy, referred to the “silos” of expertise within the UK Civil Service. IP Draughts wonders whether these silos are well-placed to identify and suggest solutions for dealing with cross-cutting themes such as CJEU jurisdiction, which comes up in many of the trade issues.

At some point, the UK government is going to have to address the detailed issues. At present, we have no visibility on the process for developing policy on these issues, or whether it will be possible for external organisations such as the Law Society to influence the policy.

Usually, when new laws are made, there is a formal consultation process. In this context, consultation implies not just being willing to receive papers, but also engaging in a conversation. Usually, the IPO consults on every small change to IP laws. If a similar process is envisaged for Brexit-related changes to IP laws, it will be a major exercise. It remains very unclear how this is going to be managed, given the timescale of Brexit and the huge number of issues that arise.

At present, civil servants are in pre-election purdah. But it seems like they have been in purdah since long before the election, and there are no signs of any change after the election. We are told to keep sending in our submissions, but we get no feedback and no clues as to whether we are making the right underlying assumptions as to the direction of the government’s travel.

At some point, surely the dam must break and a flow of policy dialogue will resume? Or are we just supposed to sit and wait until the Prime Minister tells us what deal she (assuming she continues to be Prime Minister) has struck on the EU trade mark and thousands of other issues?

These are strange times.

 

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Contribute to IP policy

It’s that time of the year when the Law Society of England and Wales advertises for new members of its policy committees.

The Intellectual Property Law Committee is looking for 3 new members. Have you considered making a contribution to the development of UK and international IP policy through membership of the IPLC? It can be rewarding, particularly when you see the results of diligent, thoughtful submissions to government, e.g.

  • the Intellectual Property (Unjustified Threats) Bill, which now awaits Royal Assent. The IPLC initiated a campaign to amend the law on IP threats in about 2006, and after a slow start the Law Commission was persuaded to review the subject and make recommendations which the government largely accepted.
  • David Cameron, when Prime Minister, negotiating to get the life science part of the central court of the Unitary Patent system to be located in London. (There are currently issues around how long the UK will be able to remain a member of the system, in view of Brexit, but the deal about the London court was struck prior to the Brexit referendum.)

Details of the current membership of the IPLC and its terms of reference can be found on the Law Society website here. The members are usually solicitors qualified in England and Wales, and are a mixture of private practice and in-house practitioners.

Inevitably, Brexit is taking up a lot of our time at present, as we identify the issues that will arise, particularly in relation to EU IP rights, and make recommendations on how to deal with these issues. IP Draughts recently attended a meeting with the IP minister, Jo Johnson MP (younger brother of Boris) and others to discuss some of the headline issues.

Ideally, we probably want one patent specialist, one copyright specialist and one trade mark and designs specialist, to complement the existing membership.

Details of all the Law Society vacancies and how to apply can be found here. Expenses are paid (subject to navigating the policy and procedures!) and a small honorarium is also paid. The closing date for applications is 12 noon on Monday 10 April 2017.

 

 

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MPs’ report on TT: mostly practical, sensible advice

The House of Commons of the UK Parliament has a Science and Technology Committee. The committee has today released its report (HC755) on its Inquiry into Managing Intellectual Property and Technology Transfer. Disclosure: IP Draughts was one of 19 witnesses who gave oral evidence to the inquiry, and he gets a brief mention in the report, more on which below.

The terms of reference of the inquiry explained that it was taking place in light of two recent developments:

Dame Ann Dowling’s July 2015 Review of Business-University Research Collaborations commented that in universities “there is a tension between the desire to earn short-term income from their Intellectual Property and the need to deliver wider public benefit, and potentially greater long-term return on investment from this IP. The emphasis needs to shift towards the latter, and this must be reflected in Technology Transfer Office funding models and success metrics. … This area remains a major source of frustration for both academics and businesses.”

Our recent hearing on Graphene included discussion about the role of universities in the commercialisation of their research work. We now invite written evidence on how well this system works and what measures are needed to improve it.

The inquiry ranged across a number of aspects of university technology transfer (TT) and the commercialisation of IP. The final report of the committee focused on three areas:

  • how business demand for technology transfer might be increased
  • the geographical context of technology transfer [is it nearly all done in the ‘golden triangle’ of Oxford, London and Cambridge, and should it be encouraged in other places]
  • funding and support for technology transfer

Golden triangle. A=Oxford, B=Cambridge, C=London, X = Milton Keynes?

The report summarises the range of views that it heard when taking evidence on these topics and draws some sensible conclusions and advice for government. The main points that IP Draughts takes from the report are:

  1. Let’s move on to implementation. We’ve had enough national reviews of intellectual property and technology transfer (“at least 12 …over the last 15 years”). It’s time for the government to take action in several areas, outlined in the report. [Hoorah! IP Draughts and his colleagues on the Law Society’s IP Law Committee have spent hundreds of hours over the last 15 years submitting evidence to some of those reviews, including Gowers and Hargreaves, and have been disappointed by the quality of some of their conclusions.]
  2. Don’t scapegoat the TT offices. Dame Ann Dowling’s review expressed the frustration felt by some companies and academics about the process of negotiating IP issues with universities. The suggestion appeared to be that TT offices were the cause of this frustration. The present report gives a much more balanced picture, pointing out that some of the perceived difficulties may be down to (a) a lack of understanding of the complex issues involved, (b) the problems of valuing early stage technologies, and (c) the different interests of the parties. The report provides some welcome support for TT offices (“…situated in the middle of complex IP negotiations, balancing competing priorities, with varying degrees of support.”) [Hoorah! It is too easy to blame the TT office, which often has insufficient support from the university’s senior management, leaving other participants – whose interests differ from the university – with an easy target for cries of causing “difficulties”.]
  3. Focus on improving take-up by UK industry. Universities are good at generating technology; UK industry has a poor record of making use of it. Rather than continually focus on making universities better at serving UK industry, focus on improving the environment for industry to make use of university research and innovation. [Hoorah! Viewed globally, UK universities have a more impressive reputation than UK industry. Government policy should focus on the areas mentioned in the report, including tax policy on R&D credits, VAT and investment in technology.]

Some other recommendations in the report didn’t resonate with IP Draughts. Databases of university technology are unlikely to be of much use. Getting government agencies to look into training TT offices sounds like a bureaucratic solution. Encouraging regional specialisation in research and TT sounds like another top-down, dirigiste waste of time and money.

Overall, IP Draughts welcomes the report’s conclusions and the committee’s encouragement to government to implement TT-friendly policies.

And how could he not, when he is quoted at paragraph 69 (on the subject of whether TT offices cause problems in negotiations over IP):

Other witnesses suggested that the very nature of negotiations, together with the challenges posed by valuing new, early-stage technologies, can mean that a degree of delay and difficulty is unavoidable. As [IP Draughts] explained, “it is a negotiation: inevitably, there are going to be difficulties sometimes”.

Hardly an earth-shattering observation, but one that needed to be made in light of Dame Ann Dowling’s unbalanced conclusions on this issue.

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