IBIL Event Report: The hybrid future of IP practice amidst COVID-19

The AmeriKat's view of the IBIL session
(as the summer rain comes crashing
down outside)

Last Thursday evening, for those who weren't already exhausted from the constant video calls and hearings, UCL Institute of Brand & Innovation Law (IBIL) hosted its final event focused on COVID-19 and the implications on IP law and practice, literally entitled "IP Law, Policy and Practice".  The previous two sessions dealt with IP rights for treating, diagnosing and preventing COVID-19 and copyright, competition law and privacy (you can watch the two webinars here). 

Duncan Bull (Kilburn & Strode) reports on the highlights from the session:

"The third webinar in the series focussed more on the practical implications of the COVID-19 pandemic for the UK IP professions and featured a host of key people from within the patent, trademark and IP litigation worlds. For those interested in watching the whole webinar, you can find a recording here, but otherwise this guest Kat has summarised the key points made by each of the illustrious speakers.

The session was chaired by Professor Sir Robin Jacob, Director of IBIL at University College London and he brought his usual wit and good humour to the proceedings, with some amusing anecdotes about early UK court hearings conducted via videoconferencing.

Professor Gwilym Roberts (Partner, Kilburn & Strode) kicked off the talks by discussing the bigger picture around innovation through previous significant global events and recessions, focussing on patent prosecution. Highlighting that the human race has typically innovated its way out of previous recessions, he took an upbeat view on the outlook for the UK IP industry as a whole. He also emphasised how several policy initiatives which arose out of previous crises, such as patent pooling and the threat of compulsory licensing, have helped to drive positive behaviours in the use of IP during the COVID-19 pandemic. It is encouraging to hear how the current flurry of innovation in a number of sectors, most notably healthcare and connectivity, may help to build a platform for future reliance on IP rights as the global economy begins to recover.

Catherine Wolfe (Partner, Boult Wade Tennant) followed up with a discussion of the impact on the trade mark sector. Discussing the recent trade mark filing figures, it was encouraging to hear that following a dip in filings early on in the pandemic, the UK IPO received a record number of domestic trade mark applications in May 2020. Catherine emphasised that the effect of COVID-19 has been very unequal across different sectors of the economy, with some areas seeing a huge increase in business while other sectors have been completed devastated as a result of government lockdowns. This has led to some businesses being more active with their IP portfolios and others trying to defer costs during the current uncertainty. Catherine also discussed some of the negative impacts of the pandemic on work culture, such as the difficultly of maintaining social groups at work. However, the potential positive impacts of the pandemic on IP firms attitudes to working from home were also emphasised, with the possibility of greater geographic and cultural diversity if employees do not need to commute as regularly in future.

Moving over to the litigation and transactions side of the industry, Katharine Stephens (Partner, Bird & Bird), talked about the impact of the pandemic on this work. Katherine pointed out that the rapid move to remote working has presented challenges to firms’ technology infrastructure but has forced certain old working habits to be reconsidered. It was positive to hear that COVID-19 appears to have increased people’s appetite to change the way they work and move towards more agile working. It was interesting to note that Katharine predicted an increased impact of legal technology in future, with projects having more involvement from legal operations or IT staff, which may challenge the hourly rate-billing model of many firms (Sir Robin was very pleased about this prospect!). A note of caution was also raised that the number of IP claims in the UK High Court and IPEC has reduced during the pandemic compared to the same period last year, meaning there could be a longer-term dampening on court activity.

Iona Berkeley (Barrister, 8 New Square) followed up with a talk on the practical side of UK court hearings and how this has impacted ongoing cases. It was incredibly encouraging to hear that, on the whole, the UK courts have adapted very quickly and have managed to continue with the vast majority of hearings via videoconferencing. This change seems to have been well received by litigants and counsel alike. Iona highlighted how the change to remote hearings can have a positive impact on client involvement, with clients being able to see the process of the hearing and understand the nuances more easily. The provision of remote hearings was also praised for its ability to widen access, particularly for litigants in the UK based outside London. Iona also mentioned a recent talk by Sir Geoffrey Vos, the Chancellor of the High Court, who indicated that the option of remote hearings could be maintained in future for many proceedings. There was some discussion about how the procedural rules around this would need to be clarified and it is clear that further deliberation will be needed to ensure remote hearings operate efficiently and are fair to all parties.

Finally, we were fortunate to hear the perspective of a sitting UK High Court judge, Mr Justice Birss. There was much praise for the UK court staff who have enabled hearings to be held virtually, and more recently to prepare some court rooms in the Rolls Building to be COVID-secure to allow a return to in person or hybrid hearings. Similar to the other speakers, Mr Justice Birss emphasised that the change to remote working has driven many positive adaptations, changing old habits and forcing people to be less strait-laced and formal about certain processes. It has also widened access to court hearings for individuals who may find remote hearings less demanding. It is clear that remote or hybrid hearings will be around for some time and may well be used more commonly in future. Even though the move to virtual hearings has been well received, Mr Justice Birss stressed that remote working does have its challenges for the court system, and that many judges miss the collegiality of being in their offices. So, there will likely be some return to “normality” eventually!

After the talks there were some insightful follow up comments in response to questions from the audience. It is clear that many firms and the courts are still learning a lot about ways to respond to the COVID-19 pandemic and there may well be more developments to come in future. Thanks to IBIL and all the speakers for putting on an interesting and informative talk."