Friday, May 09, 2008

The Red Button and CPI Meltdown


Yes, indeed. Houston, we have a problem. We have gone nuclear. When I talked about "things hotting up" in my last post on the topic of the merger of IP attorneys and the French Bar, I was expressing what I suppose one would in hindsight call "typical British understatement". The proposal to vote on a merger in somewhat "fuzzy" conditions was the metaphorical Red Button that the Bureau of the CNCPI pressed, and in true Gallic style aimed at its own foot, a hotbed of bubbling, unstable, fissile mass.

In the space of 2 weeks, the exchanges on the CNCPI blog (, and those of Mr. Pierre Breesé ( have attained more than a critical mass, and what appears to be irreparable meltdown is now in progress. People have been stabbing each other anonymously, and rather cowardly in my own humble opinion, in the back, with some unpleasant personal attacks, and most of all, there has been a huge cloud of FUD (fear, uncertainty and doubt) that has been disseminated amongst the ranks. We are now all suffering from a form of poisoning by all accounts similar to a tab of LSD, where those of the Bureau see Diamonds in the Sky, and the opponents the grimmest spectres of a Hollywood horror film.

There are those, however, who have managed to float above carnage and have taken a loftier, more critical view (they must have a good supplier, a jet pack or a NBC suit). I cite Mr. Breesé, as one, who like myself, was initially in favour of the merger, but upon having seen what the French Bar wanted to impose on us "engineers" (how common we must seem) and future generations, and in light of the vague assertions of our beloved bureau and CNCPI President, has reappraised his position for one of : "Now just wait a minute, just who is driving this train, and why are we headed for that rickety old bridge ?"

Who indeed ? A group of people committed to the merger, of that there is no doubt. A merger at all costs, despite reassurances to the contrary. A merger from which there will be no going back, no sirree. One in which our European counterparts are smugly laughing behind our backs as they watch us tear ourselves apart, driven to madness. As in all wars, the crows will inevitably have carrion to feed on.

One thing is certain, and that is that nothing is at all certain, at least in terms of how the divergent positions between the French Bar and the resolutory conditions laid down by the CNCPI Bureau are to be reconciled. In the end, 790 CPIs against nearly 50,000 barristers is but a drop in the ocean, not even a worm to a hungry thrush. Either the barristers will get their own way, or the government will weigh in. Unfortunately, the government is not in the Bar Association's good books at the moment, having done the dirty on them with the recent reform of the court system and closure of many provincial courts, so the Bar Association has a couple of Aces up its sleeve which it is sure to lay down before the day is done, and the government, in a soothing gesture, will no doubt bend like a willow in the wind, rather than face the ire once again.

Where will this leave us, ex-CPIs and soon-to-be Avocats ? If one is to believe the arguments put forward by the CNCPI Bureau, we will be more visible and more competitive in Europe. Hmmm. I have still yet to see how that will be so, nor even any evidence in the form of a published economic study.

Will our prices go up ? Probably. Go Europe. French industry, renowned for its unwillingness to invest in the "immaterial", will be sorely inclined to leave us for cheaper pastures outside of France, or boost or create their own internal IP departments where they will be able to manage costs.

How will we become all of a sudden more competitive in the European market ? Certainly not with the trickle of scientists gullible or suicidal enough to want to spend at least 8 to 10 years further study attempting to qualify.

Oh yes, how stupid of me, OUR NEW TITLE "Avocat specialisé en Propriété Intellectuelle". Must be worth a couple of bob, at least.

How about the increased litigation I will be able to conduct and plead in court ? As one member of the profession has pointed out, there is a fundamental ethical and professional liability problem in procuring patent rights and then having to defend them yourself in an invalidity suit.

Of the same ilk, the question pertaining to saisie-contrefaçon : are barristers representing the client's interest entitled to carry out the seizure knowing what it is they are looking for because they drafted the patent, without infringing the fundamental rights to fair process of the alleged infringer ? Under existing French case law, a CPI does not infringe the Human Rights of the alleged infringer, even if he is the usual representative for the plaintiff because he is considered an "independent expert". However, if he is the usual barrister, that situation may well change.

Perhaps we will end up with a situation similar to the US where a law firm will have litigation counsel and prosecution counsel, but we've got that in the current system with IP attorney and barrister, so why merge ?

The much awaited vote on the resolutions put to us takes place on May 13th. Will the result be a black hole or the birth of a new star ?

Oh no !! I can feel my skin is starting to peel and my hair fall out in tufts, must be the effect of the fallout, or the gravitational pull !! Or, perhaps, just perhaps, I'm getting old ;-)

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