All firms will need to have business understanding
- Trade secrets will become critical for many businesses
- New technologies – such as the Internet of Things, personalised medicine and 3D printing – will raise special challenges
- Billing will have to be more transparent
New companies entering the patent playing field will have new needs for practitioners to advise on. One, as highlighted previously, will relate to standards and competition/antitrust law. Others will concern the use of data, regulation and privacy, as well as other IP rights – copyright, open source licensing and above all trade secrets. As one practitioner says: “AI, data analytics and cloud computing will cause companies to supplement patent strategies with more focused trade secret strategies.”
The ability to advise on trade secret protection will be critical, given that many technologies will not be patent eligible, worker mobility is likely to increase and much valuable knowledge will be stored in the cloud. Yet it is hard for practitioners to build a business in trade secret work: put bluntly, there is no prosecution and litigation is currently rare. Even when parties do litigate, confidentiality is likely to limit the scope of the proceedings.
Instead, clients will need strategic advice around how to protect innovation, spanning patents, trade secrets and other rights, in the context of specific industries. Understanding the particular business will be key – and that does not just mean understanding the science. What implications does personalised medicine have for patient privacy and regulation? Who will control data, and how, when cars and energy meters are connected by the Internet of Things? In advising on such questions, says one client, “the ability to learn is more important than having the right background”.
The other challenge raised by these changes concerns billing. Clients are already pushing back against hourly billing in many areas including patents, as they are under pressure from their own businesses. “The traditional law firm charging model is very much under threat. For nearly every job we ask for an estimate and expect to be told if there is significant variance”, says one in-house counsel, while another adds that the company has fixed fee arrangements with all of the 35 or so firms in its network. One practitioner said that a client told him it would rather have capped fees, even if the total amount ended up being more: “They said they were fed up of having 10 emails going backwards and forwards arguing about the invoice.”
So more important than how you bill is keeping the client informed. One in-house counsel says: “From my point of view, the hourly rate is fine as long as you keep the client in the picture. It’s all about transparency.” In particular, clients want to see that they are getting value for money: “I don’t want to pay for junior lawyers to track and do research less efficiently than I could do it myself.”
Bills have to be appropriate and justified. As one practitioner says: “If you go to a silk purse law firm you want silk purse work – but I’ve seen the mistakes made. Half of them are due to delegation. The rest are due to not having enough experience in specific areas and knowing client needs.”