What has been your career highlight to date?
This is a challenging question to answer because I have been fortunate to have so many. Being on the board and board chair of MPEG LA and Open Invention Network and being a part of the chairmanship of the 1994 ETSI Special IP Committee are particularly noteworthy. In the end, though, it is my ongoing involvement with SEP/FRAND policy and licensing over the last 35 years that stands out; it has allowed me to work with leading figures in the IP world, from Dr Roger Miselbach (BT) and George Graf (Alcatel) in ETSI’s early days, then with Ruud Peters (Philips) implementing global FRAND licensing and more recently with leading lawyers worldwide as an expert witness on ETSI IP Rights Policy. Working with the best is the way to learn and perform better as they drive your standards higher through engaging and enjoyable work.
You are a keen advocate for the importance of industry consensus in establishing what FRAND is for SEP licensing. What, in your view, needs to happen next to move closer towards such a consensus?
Renewing and re-establishing consensus around FRAND licensing is critical for the future of global standardisation. This needs to start with industry leaders renewing a dialogue – in private and in public – that shows a willingness to engage in the pursuit of consensus. Building consensus starts with a conversation, even if the trigger is an disagreement. This conversation does not initially need to involve proposing solutions. When building consensus, solutions best emerge as a product of dialogue. Listening to differing and divergent points of view and understanding what is driving those views helps to create the foundations of consensus. Building on that understanding will lead to shared solutions that are inherently more likely to carry consensus.
Industry leaders can make a major contribution by establishing a forum that can be focal point for conversation, discussion and consensus building. Indeed, an issue with global FRAND licensing is that existing national and regional forums are not well suited for the coming debate. A new forum is needed and industry leaders should establish this.
Which recent decisions or legislative developments have had the biggest impact on IP strategy in the United Kingdom in the past few years?
Undoubtedly the biggest impact has been the diversity of legal change, whether through new laws or court decisions, which impact intellectual property in new areas and in unexpected ways. This includes, of course, emerging debate and decisions about the ownership of AI-generated works and recognition of the value of trade secrets, but also less expected areas like the ownership of personal data, and even legal areas outside mainstream IP law, such as the UK Online Safety Bill.
Generally, we are in a time where the boundary of personal IP ownership is becoming increasingly blurred. A very concerning area is the use of AI to create works in the style of an author without any reference to or approval from the actual author. This is a complex legal area, but it seems that the primary creators of content are not being well served by the law. IP strategists need to be alert to the fact that intellectual property is subtly changing shape and look more broadly than traditional forms of IP rights for providing assets to deliver IP strategies. At the same time, the IP industry needs to continue to influence governments to keep laws relevant.
What common mistakes do parties make when embarking on a licensing negotiation – and how can they avoid them?
Our ability to repeat human mistakes is astonishing, and I hold my hand up here too. We all need to remind ourselves of the basics: consider both sides of a negotiation, allow for a win-win and – a favourite of George Graf that I regularly recall – never reject an offer without considering your next best alternative. To put it another way, be careful before rejecting the best offer you are going to get!
How has your role as an executive producer at Kiloran Media, a company dedicated to developing new and innovative media projects in a safe commercial environment, influenced your IP practice?
Kiloran Media is an innovative hence experimental vehicle, created to explore the interface between creative content producers and the kind of incubator developed for technology. Two recurring issues to address are IP ownership and reward. Finding IP ownership structures that accommodate the needs of creators and investors is challenging. This means reassessing traditional IP practices, being open minded and thinking flexibly to address the differing needs of participants.
How do you manage expectations and maintain close working relationships with clients when the stakes are so high?
Managing expectations is critical, as is living with yourself. Basic rules are best in difficult circumstances – for example, as an expert witness, sticking to the truth is essential. Also, it is wise to always play the long game. It is tempting to try to win favour by giving clients the answer that they want to hear, particularly as an expert witness, but sticking to your principles, being honest with your views and patient when explaining them pays dividends in the end. This may lead to difficult and charged conversations – particularly when the stakes are high – and these days there is sometimes a reluctance to have heated debates, as these are discouraged by modern office culture and so we are less practised in them. As long as such debates are about substance and not personality, they can be navigated. However, continuing to listen in the heat of the moment is a challenge for us all. So, we need to continually improve our people skills.
What were some of the biggest challenges facing your clients in the past 12 months, and how have you helped them to overcome these?
I continue to work with SMEs as this is both stimulating and challenging. For SMEs two things are always in short supply: time and money. It is essential to deliver a business plan that morphs and evolves on limited cash flow. IP strategy is a business follower and needs to constantly be adapted and implementation of that evolving strategy needs to continually deliver relevant IP rights on a budget that is, at best, vestigial.
One of my clients has particular challenges with an iterative technology development process that is already over a decade long. During development, the technology has been through a series of generations that require different approaches to IP protection. Understanding this development arc allowed a dual-level strategy to be developed and implemented: a stable underlying strategy and then a continually adjusted top-level strategy. Presenting this, especially to new investors, is not without challenges. I have worked closely with my client on the dual-speed strategy and presenting it to potential investors in a way that resonates with investors that have an understanding of more conventional IP strategies.
You have over 40 years of diverse experience across the world of intellectual property. Can you offer two pieces of advice for those considering a career in IP law?
Until recently, a common goal has been to achieve a good work/life balance, but the changing face of work shifts the shape of what this balance might look like. The transformation of the workplace in the last decade let alone the last 40 years renders much of my experience limited in value, so I go back to fundamentals. When I started work after university, I had little understanding of what working in intellectual property might mean or what my ambitions were. During my early years in the field, I took time to better understand who I was and what I wanted from life and work. I would encourage everyone to take this approach, regardless of the life arc that they are considering.
Experimenting with different jobs can be helpful to gain self-awareness and understanding but is not without risk. Back in the 1980s when I was starting, there were two paths in intellectual property – private practice and industry – which offered very different opportunities and rewards. I tried both and in doing so found the basis of all good arcs: an inspiring challenge and ambition along with it. Over time, tackling that challenge changed who I was, which led to a period of reflection and change in life direction.
This leads to my second piece of advice, which is be prepared to change course when your aspirations or life experiences propel that change. In today’s work environment, this is verging on a truism, as adapting to change is a necessity. Then I would add, do not be so set on a life arc that it excludes an alternative path. I found that taking an unexpected, sometimes almost accidental path as rewarding as the one that I had initially planned. So be open to the possibility of the unexpected.
What does inspiring leadership look like to you?
Ultimately, leadership is about politics – human politics. At its best, it is a bridge between the impossible present and an unimaginable future. To achieve this bridge, a leader needs vision, strategy and resolve. They need to have a clear vision of the ultimate goal and a robust yet flexible strategy that will lead to it. A leader must also have the resolve to persevere when things go wrong, doubters’ voices become louder and the less resolved leave the ship. Of course, errors are made and sometimes ships do sink; in those cases, good leaders own the consequences of their actions and rebound.
When success does come, that success is shared by all who have contributed. A leader needs a team and a team needs leadership – trite but true. Sometimes that leadership can be situational and move within the team. Whether it is an individual or shared leadership taking the team forward together is a good, recognisable test of leadership. In all of this, listening is perhaps the most underrated of skills but provides enduring benefits. Certainly, when I am looking for leadership, someone who listens and understands my point of view without necessarily agreeing with it is someone to work with.
Richard Buttrick is an independent consultant with extensive knowledge and experience of creating and exploiting intellectual property to maximise value, acquired over 40 years in various sectors, technologies and situations. Over the past decade Mr Buttrick has focused on supporting small companies as they start to develop their approach to intellectual property, while also working as an expert witness in FRAND/SEP litigation around the world. He is a UK patent attorney, a European patent attorney and a member of the Licensing Executives Society.