Life as an IP Lawyer: Sydney, Australia

The AmeriKat's professional life, be it on the Kat or sat at her desk litigating her hours away, involves a huge amount of coordination, support and opposition with lawyers from all over the world. One of the IPKat's key objectives is to bring this global IP community closer together by sharing IP decisions, legislation and practice from across the world with our readers, with the aim that by understanding our unique perspectives on the culture of IP practice we can work together to make IP a success story for innovators, creators, users and the public. With those grand aims, the AmeriKat thought it would be worthwhile to ask the next generation of global IP lawyers to illuminate IP practice in their jurisdiction, as well as to give readers some fun reading over their lunch-al-desko...

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Wen Wu

For the seventh in the series, we travel 10,553 miles south east to Sydney, Australia - the location of this year's AIPPI Annual Congress - where Wen Wu of Gilbert + Tobin looks towards the role of artificial intelligence in IP practice, changing default locations for IP Office hearings and dining with Sir Robin Jacob.

What can you see from your office window right now?

I’m lucky to be surrounded by a panoramic view of Sydney overlooking Pyrmont Bay, towards the Blue Mountains. In the evenings, laser lights dance and flicker as part of Sydney’s Vivid festival.

When did you know that you wanted to pursue a career in IP?

I took A/Prof Michael Handler’s IP course at UNSW in the first part of 2008 and loved it. Later that year, I wrote a paper on the iiNet case. I knew then I wanted to work in this fascinating area of law.

Walk us through a typical day...

I get to the office between 8 and 9am, depending on the morning’s commitments. My typical day will probably familiar to your readers: preparing cases for hearing; preparing correspondence/advice; participating in calls/meetings/conferences; supervising/mentoring or being supervised/mentored; instructing counsel; and attending court. Some days will be more exciting than others, but the subject matter is never boring. There is no “face time” in my team, so when it’s not busy, I leave at about 7pm.

What are the key differences in your system that clients/other lawyers from outside the jurisdiction find surprising or strange?

For a country with a population of 24 million spread over an area the size of the US, Australia has a modern, relatively sophisticated IP system. We are a signatory to most major IP treaties. In 2016, Australia’s IP Office handled ~28,000 patent filings, ~71,000 trade mark filings and ~7,000 design filings (PDF). Our main IP court, the Federal Court of Australia, has substantial IP experience and recently introduced a specialist IP stream.

A second difference is that we have a second-tier patent called the innovation patent, with a lower level of invention and a term of 8 years. Because they are quick to register, innovation patents are often deployed in litigation. They have received criticism from one of our law reform bodies, which recommended their abolition. The Australian Government has not yet responded to this recommendation.

What are the key challenges that are facing the next generation of IP lawyers in your jurisdiction? How are those challenges different from the previous generation?

The main challenge is one common to all lawyers everywhere: how to create and demonstrate value to clients in a world of increasing commoditization, automation and disruption of legal services. In previous generations, expectations were different and communications were less instantaneous (I recall reading a letter from decades ago ending, “We look forward to receiving your response within 28 days”).

What are the misnomers that people have about IP practice in your jurisdiction?

Law students are often attracted to IP practice because it is seen to be “sexy”. It is not sexy. But it is almost always interesting, intellectually challenging and varied.

What advice do you give clients when they are looking to protect or enforce IP rights in your jurisdiction?

Start with the end: what is the outcome the client wants to achieve? From the result, you work out the options and the strategy to get there. Speak to the law/IP firms on your panel and compare their approaches. Cheap is not always best. A brand name is not always best.

If you could change one thing about IP practice in your jurisdiction, what would it be?

That IP Office hearings were held by default in the major capital cities, rather than in Canberra.

View from the office...

What gives you the biggest thrill in your job?

To work with clients and experts in a variety of different industries and fields. There has never been a day where I haven’t learned something new about a client’s business or an expert’s field.

What are the top trends or cases that we should be looking out for in your jurisdiction in 2017?

I mentioned earlier about a law reform body’s proposal to abolish innovation patents. The body also made a number of other recommendations (PDF), including in copyright (introduce fair use) and patents (raising inventive step to be similar to Europe’s). The Australian Government will respond to these recommendations in mid-2017.

To be successful in your jurisdiction, what are the key skills a young IP lawyer needs?

A deep interest in IP law, a strong work ethic, the ability to handle stress, the ability to work in and rally a team towards a goal, and the importance of showing up.

As the IPKat’s readers are likely eating their lunch while reading this, what is a typical lunch for you?

I try to eat healthy on most days, but sometimes I have some comfort food like pho or Hainan chicken rice.

What other jurisdictions do you work with the most in your practice?

The US and the UK. On the trade marks side, we work with associates all over the world.

Looking into your crystal ball, where do you see the profession in 10 years’ time?

Unless the profession were fully replaced by AI, I hope we would still be thriving and responding to the challenges that face us today. Efficiency and innovations will be the norm. Technology will allow us to do more and different things, but we will be no less busy.

If you could practice IP law anywhere else in the world for a year, where would that be and why?

I’d like to practise in the US or the UK to see how things are similar but different, and to gain different perspectives.

Royal Botanical Gardens (Flickr)

If you could have lunch with someone famous in the IP world (judge, lawyer, inventor, politician, alive or dead), who would that be?

Sir Robin Jacob, one of your biggest IP rock stars.

What is the best piece of advice you have ever been given?

I’ve retold this story many times over the years that I can’t say whether this advice was given or not, but here goes: in response to the book Getting to Yes, one of my supervisors said to me, “The client’s position is yes. Get to yes.”

If our readers were to come to your city - which they may well be doing in October for AIPPI - what are the top three things you recommend they see, do and eat (in that order)?

Watch the ferries roll in and out of our beautiful harbour city, followed by a walk (or run) along the water’s edge in the Royal Botanical Gardens, topped off by lunch at Masuya Izakaya.