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Friday, 26 June 2009

You want to complain?

The current issue of IPInsight ("the free e-newsletter brought to you by the Business Outreach and Education team" of the UK's Intellectual Property Office), leads with a feature entitled IP complaints. Its text reads as follows:

"Unhappy with your IP adviser? Your chances of holding them to account are about to improve.

A bill for £2,000 lands on your desk. It is from your IP attorney. Sure, they have been working on your case. But where has this bill come from? Did anyone ask whether you wanted the work doing? Actually, you might have liked it done differently. Or not at all.

At the moment, you can complain, of course. First, you raise it with your attorney. Then, go to one of the two professional institutes: The Chartered Institute of Patent Attorneys (CIPA) for patents, or the Institute of Trade Mark Attorneys (ITMA) for trade marks. But it feels as if they are all in the same boat. Nobody sees it your way round.

Next year, any such cosiness is being blown away. The professional institutes are losing their regulatory role. In future, they are being freed to concentrate on representing their members. From early next year, a new regulator, The Intellectual Property Regulation Board (IPREG), also known as IP Reg, will be responsible for ensuring high professional standards. The chief executive is Mike Knight, a former examiner at the Intellectual Property Office, who is used to casting a sceptical eye over IP attorneys.

In drawing up new policies for conduct, discipline and qualifications, he is under the direction of a board that includes IP users as well as attorneys. It will mean a big change in how the profession works. "We are turning it the other way round. We will be setting down standards in light of what the public expects. It will be no longer a question of what professionals think they ought to have achieved."

Knight will have little tolerance for anyone saying that IP varies too much from case to case. "Everyone is providing a legal service. We want to make sure attorneys tell their clients where they are going, what they are doing for them, what they can expect and how much it will cost. The best attorneys do it already. We want to spread these practices throughout the profession, so on each the client knows what to expect."

As a user, you can go to the IPREG website to take a look at the code of conduct and the qualifications expected of attorneys. Because the needs of a lone inventor and a global brand are so different, Knight is wary of producing a template for IP agreements, but in the code of conduct, you will find examples of what IPREG expects to see in a contract.

These standards, written under the influence of IP users, will be how the profession is judged in future. If you are unhappy, you will have a clear framework on which to base any complaint. If your attorney gives an inadequate response, you then go to another new independent body: the Office of Legal Complaints.

After taking an initial look at whether you have a genuine grievance, they will ask your attorney to put up a hefty sum to cover the cost of the investigation and any redress. If they are cleared, it will be returned to them.

But the principle is there that 'the polluter should pay', says Knight. "We want to win respect for a profession with high standards. If you are a bad attorney, you will pay for it."
The IPKat is happy to see all professions regulated, and he sees no reason why the IP professions should be treated differently. He is also pleased to see that IP users are being brought in to the review process. However, he wonders whether he is alone in considering the tone of this article to be unnecessarily offensive. It demeans the work that has gone into regulating the patent and trade mark professions in the past and the comment about cosiness strikes a gratuitiously unpleasant tone. Has the IPO fallen out with the professions, or is it merely sticking pins into them for the fun of it, to remind them that, while a dissatisfied client can change his professional representative, you can't change IPOs if you fall out with people working in the one you've already got?

IPReg website here
Rules of Conduct for Patent Attorneys, Trade Mark Attorneys and Other Regulated Persons here
"You want to complain!" -- the Monty Python sketch

23 comments:

athurgood said...

If it actually works, then why not, but perhaps I am overly cynical in thinking that accountability in the legal profession is generally very poor, and probably even more so in niche markets like IP. Having said that, as IP attorneys we sometimes really do have to deal with "psychologically challenged" clients, and they are the ones most likely to want to call into question the professional conduct of their attorney :-(

BTW, can't see that happening in France any time soon, especially as we're all heading for the Bar (please excuse the pun) - if you've ever tried to get a French barrister struck off for malpractice then you will know what I am talking about - did someone mention accountability ? Put that G&T on my tab would you ;-)

Billy Bunter said...

This text is sooooooo not surprising.

1. UKIPO can't just process IP anymore, it has to have a mission, which seems to be as a friend of SMEs and information source, promoting the Govt agenda that "we must do something to promote IP".

2. The assumption is that SMEs are thick and don't understand IP.

3. The UKIPO has access to copywriters (not copyrighters!) and magazine designers - they are becoming rather good at producing glossy brochures.

4. The copywriter wants to tell interesting stories. Much of IP doesn't make for exciting news. So a dry story about independent regulation is tarted up into a Daily Mail style expose (can you do acute accents in comments) with a pro-consumer angle. The copywriter probably knows and cares as little about the IP professions as the average SME.

5. On the other hand, the UKIPO is still, thankfully, not as "political" as some Govt agencies, so they perhaps don't have the antennae to realise how anti-patent-agent this story ended up.

Hee, hee, as Billy Bunter would have said.

Anonymous said...

After taking the decision a number of years ago to no longer work for clients who were private individuals and instead to only act for established corporate and academic clients, I find myself no longer having any problems with client complaints regarding our level of service. Strange no? If the IPO want to start acting as the consumers champion, as they already do for unrepresented applicants, for instance by suggesting acceptable claims during prosecution proceedings, good luck to them and bad luck to those of our profession who enjoy working for those types of problematic clients.

Aaron Wood said...

I hope I am not the only person looking at this with massive concerns; the fact that although we are specialists and charge high hourly rates, we are regularly faced with lay clients with unreasonable expectations in terms of costs and success, and with low means.

I hope that a filtering system will be used to weed out vexatious and empty claims; my concern is that time and money will wasted having to deal with claims by the "looneys". It is an emotive word but all IP practitioners have to deal with them to some extent. If my client fails to understand my advice about the low prospect of success and then complains, I would hope that this will be weeded out.

I agree that clients have an expectation regarding service and adhesion to cost estimates; the adoption of a model engagement letter will help with that. I suspect two major outcomes:

1. better use of engagement letters and adoption of more SLA's and service targets within firms (no bad thing);
2. the separation of the market, with some firms deciding that they simply will not act for the "man on the street" and will only act for the larger corporates.

Naked Law said...

Prejudice and errors.
Current system: A £2000 bill. Complain to CIPA. CIPA will protect its own.

But without CIPA there would be no regulation. At least CIPA does provide regulation – a system which patent attorneys volunteer to participate. There are people applying for patents who are not members of CIPA, and are not regulated or subject to minimal regulation. And in 1988 the Government specifically endorsed a system with people being able to act before the UK patent office without any professional qualification or any disciplinary code. The IPO can refuse to deal with persons appearing before it. In practice, the Patent Office was content to delegate much of this process to CIPA. CIPA has a much higher standard. Most patent attorneys are prepared to accept this voluntarily – was this really bad for the consumer? There is no evidence that that was the case.

But we are still moving to a new system. Well it doesn’t solve the issue of unregulated people practicing before the patent office – that group exists, and now it may only grow. But it is true regulation is extended, but many other elements of your description are wrong. CIPA is still the regulator responsible for discipline. The difference is that the part of CIPA which administers this (its regulatory board) has lay members and has to be able to act independently of the governing body. This regulatory board is not IPREG; it is the Patent Attorneys Regulatory Board, which works as part of IPREG. As noted this is only half the story: you can still have someone acting before the IPO who is not subject to any disciplinary rules designed under this new regime – there could be plenty of them such as all European Patent Attorneys regulated by their own rules. And anyway all these rules would probably not apply to the complaint about the £2000 bill anyway. That is likely to be a matter of poor service not discipline, and my understanding will be dealt with by yet another body, the Legal Service Board.

Will this regulation be better. Maybe: good professional standards are good for a profession and good for their clients -- that is why CIPA has existed for over 125 years. But there will be a significant cost – the client will pay that. And it could be that many professionals will “opt” not to join what is in reality still a voluntary regulatory system.

Is this a sensible introduction? No. It presents a picture which is unrepresentative and inaccurate -- Good regulation is good. This is not a good way to tell people about it.

Aaron Wood said...

Wow - my mystical powers of clairvoyance know no beginnings....!!

Unfortunately, the separation of the businesses is not good for individuals, as the investment needed to support the requirements of the big corporates benefits the smaller clients, who get better infrastructure, IT offer etc. The invisible hand and all that jazz..

I think that someone will set up a Tesco-law-esque filing house (or has Revomark already done that) that offers bargain basement filing and little or no strategic advice to SME's.

Meldrew said...

The IP Insight article contains an offensive and inaccurate portrayal of the current regime for regulating patent and trade mark attorneys. The word “cosiness” in particular gives the clear implication that wrongdoing has been tolerated. This is bordering on the libellous.

In addition this web page incorrectly portrays the relationship between IPREG and the two institutes CIPA and ITMA. It is CIPA and ITMA that were given the role of regulating the respective professions and IPREG is a creature of CIPA and ITMA.

Further the article ignores the role that IPO has had in that regulation for many years. Has IPO been asleep on the job?

The level of complaints against patent and trade mark attorneys is way below that of general solicitors [a previous Legal Ombudsman report showed that a solicitor was about 25 times more likely to receive a complaint than a patent attorney] and the complaint rate agaist trade mark attorneys was even lower [fewer individual (loony) clients?].

Cost of regulation for patent and trade mark attorney is being put up pointlessly, and to add insult to injury gratuitously offensive material is being issued by IPO.

Well, if we are being gratuitously offensive, the comments from IPREG look like a Quango touting for business.

Filemot said...

The Chartered Institute of Patent Attorneys, CIPA are intending to defend us on this one and it will be discussed at the Council Meeting on Wednesay.
One can also imagine that it will be an interesting piece of any other business for the joint IPREG/ITMA/CIPA meeeting next week as well.
Finally the IPO will be hosting their regular Patent Practice Working Group on 7 July http://www.ipo.gov.uk/ppwg.htm
The IP profession of today is not a cosy clique and it certainly is possible to complain about fees and have that dealt with in a responsible manner. The scenario luridly painted as a hook for this article is a serious misrepresentation of reality and if the IPO apologise quickly the normally excellent relationship between the IPO and the profession or at least this member of it can be restored.

Anonymous said...

Hmm the reference to the public's expectations seems troublesome. The public frequently have unrealistic expectations in terms of cost and outcome.

I supported Mike in his appointment. I still think that he will do well. All of this smacks of brinksmanship and positional play, however - ie. "get your house in order or else I will get tough".

I think the other point is the comment that "if you are a bad attorney, you will pay for it". Technically that is probably incorrect. Most clients have absolutely no idea how good an attorney is. They do know whether you are responsive and whether you stick to budgets.

Surely once this is taken into account the message should be:

"If your client feels you are a bit unresponsive because you are scraping a living from a collection of individual applicants, all of whom actually represent a small amount of work but think that their work is the most important thing in the world and thus feel you should be replied to within 5 minutes (completely ignoring the procession of other small clients), you will pay the price. If your client feels that they have been oversharged because they failed to mention substantial factual inaccuracies in what they originally told you, you will pay the price."

How many very poor attorneys (in technical terms) are actually lauded as good attorneys and have successful practices - quite a few!

Rebecca Dimaridis said...

"They will ask your attorney to put up a hefty sum to cover the cost of the investigation and any redress. If they are cleared, it will be returned to them"

I think this is going a little overboard - it's like making a compulsory order for Security for Costs, but without giving the attorney the right to defend it. Doesn't seem fair to me.

Billy Bunter said...

Just to add a note of controversy, I actually think the IP profession of today (if by that is meant the non-solicitor branches) is a cosy clique.

Solicitors have been getting it in the neck from the political establishment for several years, resulting in over zealous ombudsmen, separation of regulatory from representation functions at the Law Society, facilitation of Tesco-law legal structures, etc. Most other countries' legal professions look on developments in the UK with horror.

The smaller UK legal professions, bar, patent agents, trade mark agents, have by comparison fallen below the radar and it is high time that the playing field is levelled. For example, the CPD requirements for patent agents seem less rigorous than for solicitors.

Tibor Gold said...

It is gratuitous. It is especially offensive to Mick Ralph, Registrar and Secretary of CIPA, whose annual reports published in CIPA Journal show how effective he has been in patiently and diplomatically dealing with complaints and bridging over mutual client-attorney misunderstandings...and how very very few clients from the already very few initial complainants escalated matters to a formal complaint.

Meldrew said...

Mr. Bunter states "For example, the CPD requirements for patent agents seem less rigorous than for solicitors."

Don't get me started on compulsory CPD - a system of measuring inputs of dubious value with little or no correlation with worthwhile outputs.

My previous post states "...a previous Legal Ombudsman report showed that a solicitor was about 25 times more likely to receive a complaint than a patent attorney...".

I believe this indicates a strong negative correlation between formalistic requirements such as compulsory CPD [how many lectures has a practitioner snoozed through] and practical requirements such as doing a job the client is happy with.

Of course, correlation is not an indicator of cause-and-effect, but it should give pause for thought(s).

For example was compulsory CPD introduced for solicitors because of the high complaint rate?

Was the intention to lower the complaint rate or just as a PR exercise?

Did CIPA and ITMA introduce compulsory CPD because:-
a) it is a good thing
b) it is good PR
c) solicitors do it so we might as well ape them?

CPD should be driven by the individual and no amount of measurement of inputs is going to provide any guide as to outcome.

Anonymous said...

Word on the street is that Mr M Knight, as well as CIPA and ITMA are all fuming. Amusingly, the IPO website went down this morning. Too many irate attorneys?

As for CPD. My main problem with it is that you cannot reach the target no matter how many hours of personal study you do. You have to pay to go and fall asleep in a lecture, or deliver a lecture to a bunch of sleepers...

Anonymous said...

It looks like the article has now been amended (at the bottom) with a disclaimer that "This is an opinion piece which does not set out the position of the Intellectual Property Office."

and an introduction that:
"In this article, Adam Jolly, business writer and editor specialising in the management of growth, innovation, technology and risk, gives his challenging perspective on the regulation of patent and trade mark attorneys."

Anonymous said...

Aha! Next time Adam Jolly looks to a patent attorney to help with editorial content, you can be nice, but maybe take the opportunity to register a protest at his insult!

And I agree with the person who said it is an unwarranted insult to the excellent regulation teh public has had from Mick & other volunteers at CIPA secretariat and committee membes, is spot on.

icfeet said...

First I have heard of Adam Jolly. Google shows he co-authored a book with Jeremy Philpott of the EPO as advertised on the EPO website at http://www.epo.org/topics/news/2007/20070717.html

I agree that the article is gratuitously offensive. Objectively, it gives the impression that Mr Jolly or Mr Knight has a grudge against the profession. I can live with any grudge exhibited by the former. But, as an IP attorney, I have to be sure that Mr Knight is impartial. It seems to me that Mr Knight has the options of resigning his position or making it totally clear that the representation of his views in the article is inaccurate.

Billy Bunter said...

On CPD, when it was first brought in for solicitors, senior solicitors were exempted for a transitional period of a few years, to get them used to the idea that they could be subjected to such indignities. Nowadays people just get on with it - it is part of the landscape.

Patent agents are very lucky that they don't have to deal with the Solicitors Regulation Authority, who are trying to assert independence to the point of objecting to the Law Society appointing members of their Board.

This Government panders to the consumer, believing there are more votes in consumers than in professionals. We have lost the influence of members of the Bar in Government, which used to be a safeguard for the legal professions. Meanwhile the OFT seems to think that it is there as a champion of consumers at the expense of professionals, rather than as a promoter of "fair" trading.

Patent agents and solicitors should cease hostilities and recognise that they have many more interests that unite them than differences. As a first step, both bodies should consider enabling patent agents to become members of the Law Society.

Anonymous said...

On the subject of regulation and accountability:

1. Who is the civil servant who took the decision to publish this vile item?

2. To whom is he or she answerable?

3. Is there any possibility of public input into the suitability of content on this important publicly funded site?

4. By whom and when is a public apology going to be made to CIPA, ITMA, their members and the British public?

I feel obliged to withhold my identity since I have regular dealings with the IPO and no longer trust its judgement, sense of fair play or ability to conduct itself in an objective manner,

Anonymous said...

On a lighter note, it's surely this Monty Python sketch (especially the second part) that is needed and not the Parrot Sketch.

http://www.youtube.com/watch?v=kQFKtI6gn9Y

Anonymous said...

In the light of the discussion on complaints & on a lighter note,I just couldn't resist (I assume this text is sufficiently transformed not to be subject to any residual copyright - a parody of a parody):

The Norwegian Patent Sketch


Customer: Hello Miss

Assistant: What do you mean Miss?

Customer: I’m sorry I have a cold, I wish to register a complaint

Assistant: I’m sorry, but it’s a public holiday in Wales

Customer: Never mind that my lad, I wish to complain about this ‘ere patent, what I purchased from you not ‘alf an hour ago in this very boutique.

Assistant: Ah yes the Norwegian patent, what seems to be trouble sir?

Customer: I’ll tell you what the trouble is my good man, it appears that you neglected to pay the filing, search, examination, and renewal fees.

Assistant: Lovely claim drafting though.

Customer: Claim drafting don’t enter into it, the application is lapsed!

Assistant: No it isn’t, it’s just in suspension.

Customer: [sarcastically] Listen, my lad, I know a lapsed patent when I see one and I’m looking at one right now.

Assistant: But there are residual rights.

Customer: Residual rights are a function of the validity, which was never examined ipso facto, there ain’t any.

Assistant: You could write a cease and desist letter. These can be based on the residual rights.

Customer: Well, then if there are residual rights, I’ll try and invoke them shall I. [Holding patent up in front of his face] ‘Ello Mr Patent, ‘ow are we today, would you like me pay your renewal fees for you so we can go to court for a preliminary injunction?

Assistant: There you see, the residual rights can be invoked

Customer: That, my good man is precisely my point, you cannot invoke residual rights on a lapsed patent!

Assistant: Ah yes, but if I hadn’t let it lapse, the resulting patent would have been litigated for nullification, incurring additional expenses for you, the client.

Customer: Nullification, nullification! This ‘ere patent could not be nullified if you threw 10,000 novelty disclosures at it. It is dead, deceased, gone to meet its drafter, cast off its mortal coil, it has ceased to be, if it wasn’t here, it would be pushing up the daisies and tripping the light fantastic at the legal library. It is lapsed, deemed to be withdrawn, refused, revoked, it has lost all rights in rem, ab initio, a posteriori, a priori, a forteriori and retroactively even!

[Smashing the rolled up papers on the table with great force]

That my good man, is an ex patent!

Assistant: But it was published

Customer: Published you say? [Pause] I took the liberty of examining the file estoppel for this patent after I got it ‘ome and discovered that the only means by which it ‘ad been published, was by virtue of the fact that a photocopy had been nailed to a tree outside Concept House!

Assistant: Well I suppose I’d better replace it then [looks behind counter]. Well it looks as though we’re right out of patents.

Customer: I see, I get the picture.

Assistant: I’ve got an industrial design

Customer: Does it protect a technical invention?

Assistant: Er, no.

Customer: WELL IT’S HARDLY A BLEEDING REPLACEMENT THEN IS IT!!!??@@##.

Assistant: [Sheepishly] No, I suppose not.

Customer: Well.

Assistant: D’you….., d’you want to come back to my place?

Customer: [Checks the shop] Yeah, all right, sure.

Anonymous said...

It's difficult to follow such a comment, but what about a complaints procedure for the IPO? The Office has become noticeably less efficient and thorough in recent weeks and months. Is this perhaps because officers are too busy pursuing agendas outside their main remit?

Anonymous said...

Article has now been withdrawn.

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