A single patent court system for Europe and the high-profile ‘phone wars’ are putting IP at the heart of clients’ business strategies
Recent multibillion-pound patent portfolio acquisitions of Motorola Mobility and Nortel have emphasised the value of IP as a mainstream asset class.
On a global level countries are developing national ‘IP strategies’ designed to make them owners of IP rather than subordinates subject to IP owned by entities in other countries.
Last month the EU Parliament finally approved unitary patent regulation, creating a single patent court system for member states. It will unify the current fragmented system – whereby the granting of patents and their enforcement is split across individual jurisdictions – in a bid to reduce complexity and costs. The aim is to have Europe working as a single commercial market to improve business certainty.
All of which means IP has never been more strategically important for business and the economy, and law firms must ensure they are structured to respond.
Marks & Clerk Solicitors encompasses the enforcement and exploitation practice with the patent and trademark attorney side of the business that manages the brand portfolio. Partner and patent litigation specialist Graham Burnett-Hall says the model is beginning to be emulated by other firms.
“Imitation is the best form of flattery,” he says. “Unlike other firms that are full-service, we live and breath IP, and focus on what we do best. What we’re seeing is patent attorney firms which haven’t previously been involved in litigation taking on partners and lawyers to provide a one-stop shop.”
Burnett-Hall says the unified patent system means that major global disputes – such as the ongoing mobile phone wars – can now treat Europe as a single jurisdiction for the purposes of litigation. This plays into the hands of firms that offer a modern IP business model across jurisdictions whereby clients can choose in which jurisdiction to bring a case.
“The bigger picture is that clients will want to go to one firm for a patent problem across the EU, not just in the UK,” he says. “Therefore, it’s a great strength to be able to offer a one-stop shop with a seamless transition of advice in managing portfolios, from registration through to litigation.
“Our business model places us in a useful position, with patent attorneys alongside prosecutors being able to get the ear of technical judges in the new courts.”
Ben Goodger, a life sciences and privacy and data protection partner in Edwards Wildman’s IP department, believes the business models of most IP practices and patent and trademark agencies are “stuck in the 1970s”.
He says the existing approach of waiting for the client to have a problem or project and then delivering the solution while charging high fees for specialist expertise is “less and less sustainable”.
“What’s needed is for IP legal practitioners to understand how the context in which the IP they are asked to advise on operates and to have a holistic and strategic approach to the advice they give,” says Goodger.
The IP team at Edwards Wildman is attempting to lead the escape from the “ivory tower” – where Goodger says IP for business still languishes – to place IP at the centre of the client’s strategy.
The importance of this, Goodger says, cannot be underestimated. He cites Kodak and Nokia as examples.
“Get the IP wrong and the whole business can be damaged – fail to innovate and protect your innovation properly, and you can be brutally pushed out of the market,” he says. “Indeed, IP can often be the key driver of business strategy. New advisory models will emerge that join up the dots of what a business needs – a combination of legal, technical, marketing, economics and financial or valuation expertise all working together.”
At Taylor Wessing the focus is international, and it is also moving towards a more holistic approach. Its 22-partner global IP offering is divided along three sector lines – IT and telecoms, media law, and patents and copyright.
Media partner Niri Shan says that while other firms treat IP as a separate service group to bigger corporate departments Taylor Wessing’s global coverage has been crucial to its growth.
“Clients come to us and say ‘make us compliant in these jurisdictions’,” he says. “It’ll take firms a while to reach that position – it’s not as easy as making the right lateral hires overnight. The modern IP practice should cover the life-cycle from creation to registration to litigation. The firm has to have commitment.”
It may not be an overnight process to transform a firm’s IP strategy, but any firm not addressing and resourcing its practice risks being cast adrift.