Thought leadership from our experts

Thinking Global: The unexpected payoffs of keeping soft IP and hard IP under the same roof

Lawyers, like biologists, tend to have a weakness for taxonomy. In the past decade, many IP departments have divided themselves into several subdivisions, or in some cases into a maze of totally independent departments, some specializing in "soft" IP (trademarks, designs, copyright) and others in "hard" IP (patents).

But looking a little closer, we can categorize further. Often, such divisions occur along gender lines, with more women specializing in soft IP and more men winding up in hard IP.

Are these categorizations efficient? A couple of months ago I spoke to a group of multinational companies to explain that our firm had decided against making such a distinction, as we believe that IP concerns increasingly need a global approach.

This is necessary in risk assessment regarding technical matters, apparently first protected by patents but also trade secrets; product designs that can be protected by patents; designs; copyright; or even unfair competition law.

For us, the goal is to solve whichever IP problem arises, or could arise, in the most efficient way possible. This means searching out and bringing together the best people for the job: foreign colleagues, economists, patent attorneys or investigation companies. It´s worth pointing out that for this group of executives, the response was unanimous, in the sense that they are looking for comprehensive analysis and an exhaustive yet focused consultation that takes all potential issues or liabilities into account. Who wants to wait for three or four specialized responses, which then need to be dissected and synthesized to present a coherent strategy?

When clients ask us to draft or review an IP contract, or seek advice on how to resolve a dispute, they need much more than a cut-and-dried approach, the one that has worked however many past cases. They want us to think out of the box. A design contract needs to take into account the relevant trademark and patent issues, and be made bulletproof against the unfair competition concerns that may arise. Let´s say you have decided to move ahead with a patent litigation. Who do you call if suddenly you have to deal with a serious claim of unfair competition?

Now, let´s address an underlying assumption of such a division of IP labor. Does hard IP prevail over soft IP? Are there more serious, underlying aspects of our domain that require specialized focus, compared with more routine matters? For clients, in the best case this is "inside baseball," a debate that doesn´t count for much outside its milieu. In the worst case, playing up the specializations of multiple IP departments can lead to lack of responsibility. Someone is in charge of the patent implications, someone else is dealing with designs, another with unfair competition: If inconsistencies emerge, who is ensuring that everyone is speaking to each other? Who is noticing the risks?

For a modern law firm to be truly efficient, the trainee, the assistants, the associate and the partners need to feel responsible for every aspect of every case. If any elements, or people, are sidelined, then you are introducing the risk of unaccountability. That courier was supposed to be sent just before the weekend, to ensure certain evidence would be admissible? "I don´t understand, my colleague said he was going to make it happen, I´m not sure what happened." Obviously, this cannot ever be a response.

This brings us back to an obvious question: Why are there more men who practice hard IP, and more women in soft IP? Both areas of the law require sophisticated reasoning: mechanical engineering is as complicated as fashion. We´ve all heard people claim that men are more adept at grasping scientific matters, but it seems increasingly clear that they´re also inclined to seek a work-family balance, and to appreciate that the diversity they got used to in law school is being reflected among the managing partners. On the other hand, it´s hard to deny that many women quit practicing during the child bearing years. But some patent litigations play out over years. Your client is going to lose a key player for who knows how long? Now?

I think the answer, for most cases, is making flexibility a pillar of your practice, for everyone involved. It´s a reflection of an awareness that any case can be a "moving target," and that teamwork will ensure the best results, as long as it takes. Instead of trying to comparmentalize an issue, make sure everyone in the game understands and undertakes the risks.

And this could be the perfect time to shake things up. A Brexit doesn´t happen every day. A lot of people are going to have to step out of their comfort zone to anticipate the fallout, in particular on the Unitary Patent Court and European Trademarks and Designs. Who knows, maybe flexibility isn´t so much a goal, but more an inevitability.