Introduction: the patent system is changing

The day-to-day work of patent law practitioners will be very different in a decade’s time. Pressure on the patent system is increasing due to the sheer volume of applications, the complexity of innovation and the speed of modern business. This pressure is compounded by the participation of more companies and increase in emerging markets. Clients, IP offices and courts will change the way they operate – so practitioners will have to change too.

In the face of such challenges, many aspects of the current patent system are simply not fit for purpose. IP offices will pursue cooperation and harmonisation where possible and adopt new technologies to automate much of their work – for example, on translation, searching and examination. Courts too will use more electronic systems and a wide range of service providers will develop solutions designed to simplify and demystify patent procurement, management and litigation.

Those who specialise in prosecution (in Europe, patent attorneys) will increasingly find that much of what they have been doing for the past three decades can be either automated or streamlined with the use of software. They will have to change how they interact with IP offices, engage with other IP firms and advise clients. “Patent attorneys and law firms will feel the pinch. You need smart people to manage the input of data, but not as many prosecuting attorneys filing applications. They will have to get more involved in the technology side and understand data and data inputting”, says one in-house counsel.

Litigators face slightly different challenges. They too will be affected by technological changes, such as the use of e-discovery and artificial intelligence (AI). Although it’s hard to imagine a robot arguing a patent case before a judge or jury in the next 10 years, it’s easier to see much of the dispute resolution groundwork being done by software. This will particularly be the case in complex cases, which can involve the scrutiny of thousands of documents such as licensing agreements, contracts and prior art publications. Litigators are also at the mercy of trends in the courts, such as uncertainty around patentability in the United States or shifts in approaches to the doctrine of equivalents in Europe.

In response to these challenges, IP practitioners will look for new opportunities over the coming years. Some of these may emerge in new forums (such as the proposed Unified Patent Court) or emerging jurisdictions, such as China. Others will respond to changing client needs: expect more demand for strategic advice on trade secrets or competition law, for example. Above all, there will be opportunities arising from new industries and businesses, based on 5G technology and the Internet of Things.

In this changing environment, firms themselves will have to change. Some will want to reform their structure or merge. Many will take on non-lawyers to meet changing client needs. A few firms may withdraw from patent work – but this will provide opportunities for others. However, simply hoping that the world will continue as it is today is not an option.