The life sciences sector in law involves both contentious and non-contentious disciplines and includes clients which range from biotechnology start-ups and university research department spin-outs to multinational pharmaceutical companies. Clients are sometimes categorised as ‘innovators’ or ‘generics’, but, as will be explained further below, the distinction is not quite as strict as it once was.
Inevitably, the life sciences sector is characterised by issues which revolve around intellectual property (mainly patents) and the exploitation, licensing and enforcement of such rights. There is also a heavy regulatory element.
Life in practice
The traditional distinction made by law firms, particularly within their litigation practice, is that they are either on the side of the ‘innovators’ who seek to exploit and enforce their intellectual property rights, or act for the ‘generics’ who seek to compete with the innovators by launching a competing product as soon as possible, either after the expiry of patents or after successfully invalidating them.
However, in more recent time the distinction has become more blurred given that large generics often have innovator arms and innovator companies often have generic subsidiaries. Furthermore, law firms are becoming more accustomed to dealing with sophisticated clients who understand that there may be advantages to instructing a law firm which has had experiences on both sides.
There are a relatively small number of firms who specialise in heavy patent litigation and such litigation can often involve quite large teams. It is therefore work which is characterised by deadlines and team-work.
Transactional and other non-contentious work in the life sciences area is very varied. Work ranges from dealing with university spin-outs and mergers and acquisitions involving life sciences companies, to licensing and selling patents and other intellectual property, to drafting research collaboration and clinical trial agreements. While working in litigation often involves working on a case that lasts for several years, many non-contentious matters may only last for a matter of weeks or months from start to finish and can be very time pressured.
What skills are needed?
It is often said to be a benefit for a lawyer working in the life sciences sector to have a science degree and preferably a life sciences degree. This is because, in the litigation context, there will often be large amounts of complex information which needs to be quickly understood and assimilated in order to be able to be in a position to focus on the key issues in the case. While these skills are not exclusive to life sciences graduates it can make life easier to have a head-start on the technology.
In any event it is usually necessary to retain an expert witness (sometimes more than one) as part of the litigation process and, while an expert will be a great help in educating the legal team (and the Court) in the technical field, it helps to be able to guide the expert as to the legally relevant areas on which to focus and it is important to be able to build rapport.
An ability to engage with the detail required in such matters and, at the same time, to be able to take a step back and look at the overall case is highly necessary and is often successfully managed by having mixed teams and involving counsel in the team at an early stage. It is also necessary that contentious life sciences lawyers have a particularly good grip on the procedural aspects of the case as there are some procedural aspects which are peculiar to patent litigation.
Litigators nevertheless have to be commercial and keep one eye on the client’s commercial objectives as well as keeping an open mind for any opportunity for settlement that might benefit the client.
In non-contentious practice, understanding the client’s commercial objectives is paramount and it is important to have a good understanding of the technology that forms the basis of the matter in hand. Having a life sciences degree can be advantageous in this respect although not essential.
Transactional lawyers, in common with litigators, need to have an eye for detail, and this is especially important considering the often long and complex sets of legal documents that form the basis of many life sciences transactions.
What’s happening in the field?
The biggest change on the horizon for life science litigators is the impending launch of the Unified Patent Court (‘UPC’) which is set to launch in 2017. It will provide for a system of patents which have unitary effect across 25 countries in the EU and which will allow patentees to obtain a cross-border injunction without having to issue proceedings in every country (on the converse it also allows for applicants to seek to revoke a patent in the same way). The Court of first instance will comprise a central division with its seat in Paris and with sections in London and Munich. The London section will have responsibility for pharmaceuticals and is expected to become a focus of life sciences litigation.
The UPC will also have an impact for life sciences transactional lawyers, most notably in the context of patent licences, in which licensees and licensors will have to consider how they will cooperate with each other in the context of opting in or opting out of the UPC during the initial transitional period.
The trainee’s role
Trainees in a litigation seat are expected to research legal points and to assist in the efficient running of cases. Typical tasks include making notes of meetings with experts, clients and counsel, preparing research notes on legal points and the state of the scientific art at a given point in time, managing action lists, drafting letters to the other side and emails to clients as well as issuing proceedings and applications at Court.
A trainee in a non-contentious seat can also expect to research legal points in the context of drafting and interpreting agreements and may spend a significant amount of time carrying out relatively simple drafting tasks and proof reading and amending complex agreements as well as attending client meetings and negotiations, primarily to take notes.
Attention to detail is extremely important as is an ability to think carefully about how and why a particular task fits into the strategy of a case or non-contentious matter. The latter trait becomes very important for a trainee whose seat may only span part of the lifetime of a matter and may have missed out on some of the initial discussions and need to catch up quickly.
What sort of firms do life sciences work?
Generally speaking, life sciences litigation is highly complex and very valuable to a client. It can mean the difference between being able to exploit a market or monopoly worth many millions of pounds annually or not. As such, it tends to be the larger and/or more specialist firms that engage in life sciences litigation and London remains a centre of excellence.
In non-contentious practice, life sciences work can range from relatively simple, low value work for smaller clients to highly complex, multi-million pound transactions. The higher value work tends to be carried out by very large firms but the smaller matters are carried out by a whole range of firms of different sizes and specialities.
Daniel Byrne is a senior associate and Louisa Jacobs is an associate at Bristows.