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Changing Landscapes

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Having recently restructured my position within the legal profession as a full-service lawyer after some twenty years practicing as a dedicated patent (and trademark) attorney, I have been given an interesting perspective on both professional areas.

Multi-scope lawyers and patent attorneys are not too dissimilar in the way they provide their services to the public.

Patent attorneys are actually a species of lawyer practicing applied law in a very narrow area, namely, industrial intellectual property pursuant to the Designs Act 2003, Patents Act 1990 and Trade Marks Act 1999. While some patent attorneys cover esoteric areas such as plant breeder’s rights, most attorneys tend to specialize in the general scientific and engineering fields. Personally, I was a general practitioner attorney in the mechanical and biomedical engineering field.

Patent attorney practices were very old fashioned in their attitudes with little or no marketing to their clients and until recently were run like law firms of 10 to 20 years ago with rigorous anti touting rules. Most of the work, however, was fixed price as clients would shop around without any idea that a patent specification invariably differs for every invention. Consequently, attorneys started drafting to a low price with an unsurprising and corresponding drop in drafting quality.

As the demand for trademark expertise grew,  lawyers began to develop a trademark side of the profession. While there has been an increase in self-filed applications, there has also been an increase in demand for professional assistance and advice. Patent and trademark attorneys fulfill this role as they  are trained to negotiate the complexities and nuances of the legislation.

A poorly drafted patent invites infringement because it cannot be enforced properly or at all. The Claims of a patent, unlike the conditions of a contract, are strictly construed according to technical meaning without recourse to intent. It doesn’t matter what you meant to protect if it hasn’t been properly described and defined in the patent. Your infringer is excused from reading between the lines and the Court takes this approach in the interests of advancing the relevant field. There is also the view that legislators are inherently against commercial monopolies of any kind.  Years and cost of research and development can be lost by the absence of, or an inadequately drafted patent.

Unlike legal contracts which operate inter partes wherein new contracts concerning the same subject matter can be entered into, a patent specification is really a once only contract in rem. Patents are limited to only one invention at any one time without the ability to be changed or modified. As a patentee, you only get one chance to get it right the first time. It is crucial therefore that professional help is sought from a patent lawyer or attorney in the first instance which significantly far outweighs the risks of not having one.

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