Amendments to UK Patents Court Guide paves way for increased diversity

The AmeriKat squinting into
the bright future of more
opportunity for junior 
 patent lawyers

This past week, at the 30th Fordham IP Conference's session on Women in Patent Law the AmeriKat presented on the recent amendments to the Patents Court Guide to improve diversity in the Patents Court.  

The provisions came about via an initiative of the London Chapter of the ChIPs Network (see previous posts here).  The ChIPs Network is an in-house, industry led organization which creates programs and opportunities to advance women in tech, law and policy to propel innovation and inclusion and equity for all.  The US arm of ChIPs has already had success with their NexGen Model Order program whereby judges in the Federal Circuit created provisions in their standing orders to ensure that junior lawyers, particularly women, were expected to have a chance to get on their feet earlier and participate in oral advocacy.   

Using that model, a group of the London Chapter leaders - Amy Crouch, Laura Whiting, Tom Mitcheson KC and me (no longer in third person) - went about proposing amendments to the Patents Court Guide.  For those readers outside of the UK, the Patents Court Guide is the tool which organizes how patent litigation is conducted in the UK, from preparing bundles to how to arrange a hearing.  

There were three lessons that the London Chapter leaders learned from this process.  First, was identifying there was a problem.  Practitioners will already be well versed in the demand for diverse teams from clients, particularly US-based clients. When asked to field women KCs (as they now are) for high tech patent cases, the list to choose from was 2.  When asked if there was a woman judge who could hear a category 4 or 5 patents case, the answer was "no".  But when one looked at the junior end of the spectrum, the position was better - more women and lawyers of colour.  Thus, the team knew that there was an issue of maintaining the pipeline of diversity to the senior ends of the profession.  To maintain that pipeline there needed to be increased opportunity to exposure to court-time with the resulting profile raising in front of clients, judges, barristers and law firms.  Thus, the proposed amendments to the Patents Court Guide were aimed at encouraging those opportunities.  

Second, we needed to convince others there was a problem that warranted these changes to the Patents Court Guide.  We knew there was a problem, but not everyone universally shared our perspective.  People's own lived experience and personal perception informs their world-view. Thus, we needed data.  Data derived from reported cases (2015-2019) demonstrated that whilst the (limited) number of appearances in the Patents Court by women QCs had broadly tracked the population demographic of that group (i.e. the % of all IP QCs who are women – currently 6%), the same was not true in the junior population, where in 2019 only 15% of appearances by junior advocates in the Patents Court were by women (from a total 32% of all junior IP barristers).  

After several stakeholder engagements, including a Townhall and, with the wonderful support of Mr Justice Meade, amendments were passed and published online in November 2022.  

These include the important opening provision and statement that:

5A.Use of junior advocates

The Patents Court wishes to promote diversity among those appearing before it. Parties may choose how to use their advocates (and representatives generally), but greater use of junior advocates will be encouraged.  A junior advocate is defined as a barrister, solicitor advocate, or other representative with higher rights of audience, who in each case is not either Queen’s Counsel or a partner of their firm.

Parties are encouraged to consider whether interim applications, or parts of interim applications may be presented by junior advocates. Disclosure issues, where they arise at a Case Management Conference or at another separate hearing are a good example of issues on which it may be appropriate and helpful for the argument to be prepared and undertaken by a junior advocate.

Further provisions about junior advocates appear at 7.3A, 12.9A and 19.1 below.

The third lesson is that everyone one needs to be accountable for changing the legacy of diversity in the UK patent profession.  We are already encouraged that junior barristers have been benefiting from increased opportunity for oral advocacy, including in interim hearings and at trial.  In Anan Kasei v Neo, with the express encouragement of the Judge, Mrs Justice Bacon, Miles Copeland took on advocacy roles.  Mr Justice Bacon said at the outset of that trial that she would be happy to see juniors taking on roles in the case.  In Astellas v Teva/Sandoz, Anna Edwards-Stuart took to her feet during trial, as well as Sarah Love for Apple in IDG v Lenovo. 

Although we are encouraged by this, we know that we all need to keep pushing the profession to use the opportunity and make adjustments to how we staff and run cases in the Patents Court.  This means monitoring the data of appearances before the court, asking for more diverse staffing from our trial teams and having conversations with clients as to how these changes increase cognitive diversity which can and will benefit the case, client and patent law in the UK .   

The team will be evaluating how the amendments are working in practice and identify best practices to share with practitioners and the Court.  We will continue to keep the pressure up. But we are so far encouraged that those who are coming after us are no longer going to be the only ones in the room. 

If you would like to share your experiences or ideas on any of these issues, please contact Amy Crouch (amy.crouch@simmons-simmons.com), Laura Whiting (laura.whiting@freshfields.com), Tom Mitcheson KC (mitcheson@3newsquare.co.uk and me (annsley.ward@wilmerhale.com).