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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Wednesday, April 13, 2005Can Patent Legal Work be a Commodity?The Patent Baristas recently wrote:"[...]Interesting question! In think that there in fact is a borderline between "Column A work" and "Column B work". But where to draw this line? I do not think that drafting a patent application should ever be "Column B work". There are, however, in the course of patent as well s trade mark prosecution a lot of more formal steps which are clearly "Column B work". An extreme example is the entire renewal service business which, during the past ten to twenty years or so, has significantly slipped out of the hands of patent attorneys in favour of highly computerised specialised agencies. My analogue to a computerised patent attorney' office of the future is today's banking business: If you are a businessman wanting to get a EUR 10,5 Mio. loan (and if you are welcome with such a desire at all) you will have a decent talk with a competent bank manager. But if you want to withdraw some money from your account or simply need to know the bottom line of your account you will be referred to dedicated computer systems. In the same way if a client has a certain problem to be solved requiring intellectual capacities of an attorney, then he should be served by a qualified attorney and billed accordingly (whether or not on the basis of the billable attorney's hor, that's quite another thing). However, the formalities work as done today in the entire legal business seems somewhat archaic to me, like as if the bank clerks would still continue to compute the account balances by hand. There should be more room for automatisation in the formalities sector. For example, if a U.S. Client wants to get a European Community Trade Mark via the OHIM in Alicante, Spain. The usual way of business might go as follows: The managing director of a U.S. company dictates a letter requesting his U.S. attorney to organise work for a European Trade Mark Attorney in order to file for the desired trade mark application. The U.S. attorney reads his Client's letter and starts dictating another letter to a European Colleague, repeating the indications of the trade mark, the list of goods and services, etc.pp. Then, a European Trade Mark Attorney repeats these steps by typing essentially the same information into a PDF form to be filed with the OHIM. Reporting goes the other way round, essential with the same degree of fussiness. If all persons in this sketch would replace the old-fashioned letters by e-mail messages there would be little difference: The messages interchanged are not so well-structured that they could in fact be processed automatically. There are efforts to implement electronic filing procedures with the major Patent and Trade Mark Offices also in Europe, of course. But all these projects only help to solve a part of the problem, namely the isolated act of filing an application (or subsequent documents) with the competent Office by the electred representative. The problem of imposing a formalised and computer-readable structure on all of the formalities communications amongst the Client and the various national/international representatives (Law Firms etc. pp.) organising the Intellectual Property business in its entirety seems not to be tackled seriously, at least at the time being. In my view what really is needed is  some kind of a universal open XML-based standard for interchanging Intellectual Property business data, e.g. for encoding a commercial request to file for a certain patent or a certain trade mark, or for reporting an Office Action back to a representative or to the Client. By means of such an universal standard, the IT systems of the various Patent and Trade Mark Offices, of the Law Firms, and of the Clients could be interconnected by an Internet-based network. And, all the services created for the Client by means of this network of nodes processing XML-based messages would be commodities. There are also pseudo-commodities. If a mayor Client company issues, say, 50 orders for patent drafting to a single Law Firm, then there is clearly room for some kind of statistics. In such or similar situations large companies might be lead into temptation to offer only a flat rate per case. This can only work if the Client and the Law Firm know each other very well since long years and if there is a basis of mutual trust that the Client company will not only let the difficult inventions be converted into patent applications on the basis of the flat rate but also simpler ones.
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