From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Wednesday, 28 January 2015

The patent profession: visions for the future, problems for the present

The typical successful patent practitioner
of the mid-2030s: technically savvy multi-
tasking female, working from home ...
Visiting a group of patent and trade mark attorneys (but mainly patent folk) the other day for a friendly chat over a sandwich and sushi, I was asked what I thought the profile of a typical successful patent practitioner might be in 20 years time. My colleagues were a bit surprised and perhaps a bit amused when I opened with the words "She will be ..." since, while change is in the air, the patent profession is still under-represented by women, particularly when compared with the other major branches of intellectual property practice [on this topic, new readers to this weblog may wish to read the recent posts here and here, together with a selection of the best and worst of our readers' comments].  I added that the typical successful patent practitioner of the mid-2030s would almost certainly have a wider range of peripheral skills and knowledge and thus be able the better to engage with clients in taking a holistic approach to what the client may perceive as a purely legal issue. Thus, in answer to the question "can you patent my invention?", the client will not just receive a yes/no response but will be prompted to consider a variety of different commercial and strategic options. This Kat believes that  this is already happening to a not inconsiderable extent in many practices and among more experienced practitioners, but he feels that professional training and better use of information and resources already available online will enable the successful patent practitioner to advise across a larger spectrum of issues with greater confidence and at a higher level of competence than at present.

The unified patent court: newly
 hatched, but misconceived?
When it comes to litigation however, it is less easy to profile the successful patent practitioner, at least in the new Europe.  Regular patent attorneys, patent attorney litigators and solicitors are all equally disadvantaged by the ongoing uncertainty as to how the unitary patent and the unified patent court will change their lives and those of those of their clients, and as to the extent to which they will need to prioritise their cultivation of patent claim interpretation, drafting pleadings, manipulating procedural rules and advocacy.  The new system should be a newly-hatched chick, freshly emerging from its shell and ready to face the world as it assumes its pre-ordained form. Instead it more closely resembles a stream of escaped yolk, oozing from the shell in a direction of its own making: all agree that it may have some value, but will it in practical terms be of any use?

Group therapy plus refreshments and net-
working: the ideal mix for a patent conference
So how do we get from where we are now to where we want to be in, say, 2035?  There are three basic approaches: one, through the media, is based on the transmission of relevant legal fact and principle, so that it can be absorbed, understood, and applied where necessary. A second, through training courses, mock trials and workshops, gives people the opportunity to practise skills that require and transcend knowledge: writing specifications, drafting claims, pleadings and contracts, advocacy techniques and the like.  The third, of which this Kat is particularly fond, is the sharing of individual and collective uncertainty, ignorance and unfamiliarity with the best way to tackle uncharted issues: this for him is the best justification of the patent conference, where speeches and sessions are not mere exercises in the transmission of fact but a catalyst.  There, you have the chance to discover that you are not alone: your doubts and anxieties are those of the people attending with you, and both the sessions and the discussions surrounding them can provide insight where one there was a professional fog, clarity in place of confusion.  Although the word "networking" is overused by many conference organisers and disparaged by cynics as a euphemism for "having a good time, ideally at someone else's expense", a good conference gives those who attend the chance to speak with one another, to listen, to engage in professional dialogue and to come away with a sense of collegiality, a feeling that something has been gained by the sharing experience.  Judging by the fact that there have been a fairly large major international patent events over the past couple of years, most of which have been well attended, this Kat suspects that both those who organise these events and those who attend them feel much the same way as he does.

On a personal level, this Kat notes with some pleasure that Managing Intellectual Property magazine's International Patent Forum 2015 will soon be with us, running on 10 and 11 March.  This year's must be the third, since he was pleased to announce the second last year.  This Kat -- who has a soft spot for the magazine since he founded it in 1990 and was its first editor -- is pleased to see that admission is free for in-house corporate and patent counsel, academics and R&D professionals and that it is once again offering a £300 discount to readers of this weblog who register for it [to claim this discount, private practitioners should email registrations@managingip.com, quoting "IPKAT"].  The venue is once again London's Waldorf Hilton Hotel, which is not 100 miles from his base in Holborn, so he may well be popping in to enjoy the ambience, say hello to his friends and pick up a little inspiration.

The line-up of speakers has some familiar countenances plus a sprinkling of new faces.  Corporate speakers include Clemens Heusch (Head of European Litigation. Nokia), Julie Dunnett (Director of IP, GKN Aerospace), Kevin Fournier (IBM), Leonid Kravets (Interdigital Communications), Ian Hiscock (Head of IP Policy and Litigation, Novartis) and Adam Pilcher (Metaswitch Networks), and this Kat will be curious to know how confident are the patent decision-making processes in the enterprises which they represent. To give just one example, he has heard several different versions of what US software patenting is all about in the wake of Alice v CLS Bank [noted on this blog by Darren here], but what is the reality on the ground so far as patents examined and granted before and after Alice are concerned, and for examiners, businesses and investors?  Likewise he has received mixed messages concerning China's patent grant and protection policies. These are great topics to talk through and to see how much consensus can be reached when patent owners and practitioners can get put their heads together.

The Forum's website can be accessed here. See you there?

11 comments:

Anonymous said...

I agree that a patent attorney in the future will take a more 'holistic' approach. Hopefully within 20 years we will have cracked the problem of making IP (especially patents) a fully tradeable asset and that will have opened up new collaborative models and new business models.

Re: Alice v CLS Bank. We're still waiting for a Federal Circuit decision to interpret it for us. However in the meantime there seems to be drop in litigation happening in the software area and I suspect we'll also get a reduction in patent filings from the early stage tech sector until we have a clear idea of what is patentable in this area.

Anonymous said...

My prediction for 20 years from now: patents will be 98% computer generated from boiler-plate models incorporating the latest jurisprudence insights, automatically generated with appropriate variations and legal quircks for each targeted jurisdiction.

Patent Attorneys will only provide the key aspects of the invention and toggle a number of options for types of protection requested. This list of key aspects and selected list of protections is what is actually examined.

No examiner, attorney, or judge will ever read the computer-generated patent text, which is merely kept around as a quaint reminder of times gone by and (not unimportantly) because the law still requires it.

It should be noted, however, that most of my colleagues laugh at this vision of the future, hence me posting anonymously....

Anonymous said...

...and here I thought that you were posting anonymously because you had no actual identity, being just an AI 'ghost int he machine' activated by a random toggle of switches of some post-personal invention era dystopian program...

(like me...
perhaps...
;-) )

Nick White said...

I'm actually disappointed that you would support a major IP event that blatantly discriminates against professionals. Why not make it free for all?

In 20 years? LOL

Anonymous said...

In 20 years time, life as a patent practitioner will be lots more fun. We will all be have Google Read brain implants as a means of auto-reading the judgements of Lord Justice Arnold, which will by then be as long as Harry Potter books. Oh, and all our clients will be Chinese.

Roufousse T. Fairfly said...

This is what the future could look like according to an USPTO contribution to the 2007 "Scenarios for the future" fantasy^W project of the EPO:

Russ lives in the village of Allegre, in France, famous for its displays of flowers and located just outside of the cathedral city of Chartres. Though American, Russ loves living in France with his wife, a pre-school teacher, and their children. He owns his three bedroom cottage, with a thatched roof and two birds-eye windows, a vegetable garden and situated next to the open sky and broad fields of his farming neighbors. One of his wife's brothers lives in the town, and is the proprietor of a local restaurant and Café du The.

Russ is well educated. He studied electrical engineering with a major in Patent Examination in Magill [sic] University in Montreal, Canada, and received advanced degrees in electronics at Berkeley in California and at the Sorbonne in Paris. He is fluent in French and English, and calls himself "passable" in German, though he knows the quality of every German wine on all the menus of Chartres, a half hour away from his house by car. Russ is much in demand as a professional patent examiner, being certified in English, French and German by the USPTO, the EPO, the JPO and WIPO. He is constantly being requested as an examiner by applicants, and commands a Class A fee for his services. It is rare his docket has fewer than 100 applications on it, because of both his strong knowledge of the technology, and his keen ability to isolate the new inventive material in an application, and quickly bring the prosecution to a patent if one is merited. Russ is often consulted by fellow professional examiners around the world, and is well respected in the professional association of examiners.

Russ's high salary is well appreciated by the tax assessors of Allegre, who welcomed him and his wife to the community, assuring him sufficient Internet bandwidth to his workroom in his cottage. Though his bicycle is well known through Allegre and the neighboring villages along his morning exercise circuit, less well known is his generous support of the pre-school in the church where his wife works, or for the Home for the Aged in his Department. Since Russ's wife Nicole and the children spend the day at the school, Russ often has his midday meal at his brother-in-law's village restaurant, sharing a table and gossip with the local workers, and returning to his own work at the cottage thereafter.

The life of a professional examiner in Allegre is a good one. Since there are ten EPO/USPTO/JPO qualified examiners in the region, the Trilateral has built a conference center in Chartres, not far from the famous cathedral. With advanced electronic collaboration facilities, and a few meeting rooms, the conference center provides a convenient location for electronic or personal interviews with applicants, visiting office managers and fellow examiners. Continuing training is also provided there. Its location, not far from the best French restaurant in Chartres, Le Gargoyle, has not hurt its popularity as a center for the intellectual property community in that region of France, and indeed a strangely disproportionate number of USPTO managers traveling to WIPO in Geneva find their way to that center for a conference with the local examiners, usually just before dinner time.


This wasn't in the main report, but in an annex which has been removed from the web site.

Isn't life wonderful.

I remembered this gem when reading the recent IPkat news item about KIPO accepting combined trademark and patent applications.

Anonymous said...

I can neither confirm nor deny that the idyllic script mentioned by Roufousse T. Fairfly is but one of several fantasies available to the human battery components as seen in the move "The Matrix"...

Anonymous said...

Mr Fairfly,
That actually wasn't part of that study but was a separate one. It hasn't been removed from the annexes.
But, for better or worse, Jeremy's vision is pretty similar to the Grey scenario in the link you attached.

Roufousse T. Fairfly said...

I found the original link at archive.org.

The fragment I quoted was very much a part of the study:

Home→Topics→Patent system→Scenarios for the future→Other scenarios→Patent examination in 2030→The examiner

Anonymous said...

Wow, being able to request the Examiner! Wow only a 100 cas docket!!! Utopia!!

Anonymous said...

I like that the fictional 2030 Examiner is called Russ, in light of the recently announced computerised lawyer, Ross.

This also ties in with the computer generated applications mentioned above. I think this will happen, though I think the commenter there will be surprised at how long it takes. Probably closer to 30 to 40 years away I'd say.

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