Journal of Intellectual Property Law & Practice Advance Access originally published online on January 3, 2008
Journal of Intellectual Property Law & Practice 2008 3(1):1; doi:10.1093/jiplp/jpm232
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© The Author (2008). Published by Oxford University Press. All rights reserved
Editorial |
Office politics
The main focus of the IP student is on the substantive law: what can you patent, which acts infringe a trade mark, when will freedom of speech arguments trump a copyright-based action for an injunction, and so on. Once in practice, this focus broadens to take in wider interests, for example how to advise and guide a client without misappropriating its decision-making capacity or how to work within a team when preparing litigation or practising due diligence. As one progresses, thoughts may turn to loftier subjects, such as the service rendered to professional and commercial bodies, or to lesser and more selfish ones, such as promotion to partnership, a move to another practice, or the bold step of setting up on one's own.
There is however one topic to which many practitioners pay little or no attention and, if they do focus on it, that focus is usually short-lived. That topic is the mode of operation of the public institutions that are responsible for the administration of IP rights.
Lack of attention is not, however, the same as lack of concern. Both on behalf of their clients, who own IP rights or seek to dismantle the rights of their competitors, and on their own account, many practitioners raise concerns regarding the cost, the speed, and the perceived quality of service of patent and trade mark-granting institutions. But in the heat of private practice, there is little opportunity for a lawyer, patent, or trade mark attorney to devote time and attention to the structure and performance of these public organs and to seek to improve them. Nor is there any competitive advantage in doing so: an office that is slow to grant patents or process trade mark oppositions is likely to be slow for everyone, so any disadvantage or inconvenience is perceived as a shared one—it ‘comes with the territory’, so to speak, and may even be relied upon as a constant in an otherwise ever-changing professional and business world.
In recent months, however, much interest has been expressed in the mode of operation of these institutions. The USPTO has received attention of almost Beckhamesque proportions following its introduction—and speedy withdrawal—of proposals for the improved processing of patent applications that were perceived by some sectors of industry as placing bureaucratic convenience ahead of users' interests. The European Patent Office has sparked off keen debate on the relative virtues of paper and electricity as means of communication in a Europe more divided by variations in professional ethos than by linguistic barriers. WIPO has seen announced the resignation of its third Director General amid allegations of improprieties in its appointments procedures and budgetary arrangements. At national level, too, there has been much activity: a good example is the UK Patent Office, which has been required to change fee structures, administrative procedures, and even its own name in a bid to keep the right side of the Gowers Review and its recent momentum for reform.
Where does this leave the system's users? The profitable and efficient discharge of obligations towards a client depends not only on knowing the law but knowing the system that administers it. In today's economic climate of globalization, patent and trade mark administration systems must be compatible with one another just as much as the telecommunications systems that connect them must be compatible. The result of this is that, every time a change is made to one part of the complex web of international and national administrative offices, the consequences of that change are felt, to a greater or lesser extent, throughout the entire system.
If patent offices and trade mark registries are to work well per se and in relation to one another, the entire IP community must involve itself in the reform process. If it takes a little longer to mend the bits that are broken and to improve the bits that do not work so well, so be it. Consensus as to how offices should run can be achieved—and it will bring the result that, if what is implemented is the result of this consensus—we will have to stop blaming the administration for the deficiencies of the system, since it is we who will be responsible for them.
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