"Captain, I cannae hold her" - sound familiar ? For all those Trekkie fans out there, I have some news : we, the French patent attorneys of this world, are going "where no man has gone before" (I'm not going to be politically correct for the sake of a quotation).
Yes, indeed. Such could be the conclusion one could have drawn from the meeting I attended on Tuesday afternoon organised by the National Guild of (French) Patent Attorneys. The trouble is, I don't really know where to start. I suppose it didn't help my understanding of the situation by my turning up late, but when one lives and works in the back of beyond like I do, getting to the meeting place on time was not necessarily an easy thing to organise. Unfortunately, and this is one of my pet gripes, the CNCPI is resolutely a centralised organisation with 99.9999% of its meetings taking place in central Paris and not necessarily near to an airport or a main railway station.
OK, so I turned up 10 minutes late. The meeting had already started, but fortunately not yet question time. Lucky me. I took a pew, strategically placed near to an exit, since I knew I would have to leave for a conference I was giving the other side of Paris later on the afternoon. And the floor was opened up to questions - I'll spare my non existent readership the pain of having to trawl through these questions and get to the point. What was all this about ?
Basically, the meeting was supposed to be informative. Unfortunately, I learned very little that I did not already know, surmise or suspect. Perhaps, had I stayed longer, I would indeed have learned something useful. The information was supposed to be about virtually anything related to the ongoing "negotiations" between the Guild and the Bar Association of France, by whom we are about to be devoured. During my time of attendance, the questions focused on the training requirements that would be necessary for any youngster or neophyte wishing to enter the profession and become a Avocat "spécialisé en propriété intellectuelle" (what is it with the French and pompous names, eh ?)
The upshot of most of what was said is that our Guild is basically in a "bend over, this might hurt a little" situation. In other words, there is no room for negotiation with the French Bar Association. This was more or less confirmed by the President of the Guild.
The French also seem to have got it into their heads that there is no European mutual recognition for IP Attorneys - while this may be true on paper, there is no European Union universal IP Attorney title, yet mutual recognition of titles exists, whether one likes it or not. Of course, one can not yet simply set up business as a barrister or other legal service representative in the EU if one doesn't have at least some form of recognition in one's own country, but recognition can and does happen on a EU level. Just because France has been fined on several occasions for its own protectionism in this regard, is by the by, but deliberately creating an internal system of training and qualification, as it looks like we are going to have, and which will make things significantly harder for new young entrants to the profession is not IMHO going to help our ailing and aging professional population.
OK, I hear you say, "what reasons are given for this elevation of professional status ?" Well, the ones I heard were a little hard to understand, and I'm in favour of the whole thing. I hate to think what the opponents of the movement must think - as the French say, "we're walking on our heads !!!"
- we're a test case for certain factions of the Bar Association that wish to see things change and introduce a specialisation for all barristers ; these factions are naturally interested in being able to manipulate the discussions the Guild is having to push the Bar Association towards "modernisation";
- everyone will look up to us as and recognise us as superior beings because we have such a long list of professional qualifications - errrmm, beg your pardon ??? I'm sorry, but my cynical side takes over here, and I have to admit having guffawed at the pomposity of replies such as these; the Guild continues in its longstanding tradition of inflating the image of our profession to over and beyond what it really is, but hey, I can puff up my chest too :-)
- the scaremongering approach : the spectre of deregulation looms and therefore we must run and shelter under the wings of Mother Hen aka the French Bar Association, but we can only do that if we give in to everything they ask of us. Hmmm, well, by the sounds of it, deregulation is coming, whether we like or not, and the barrister profession won't be spared - perhaps, with a bit of luck, we'll gain a few years more out of it before it finally hits us all - we'll just have to see at that time whether there is indeed "safety in numbers", but I doubt it.
So that's it. Not particularly brilliant. Then again, I'm probably far too cynical, too pessimistic, to be able to fully appreciate the context and developments that are overtaking the profession. Yet despite all of this, I remain in favour of the merger, mainly for purely personal reasons, but I don't think that the current developments will favour entry into the French profession of engineers or scientists with the current or even projected scheme of training available in France.
As an employer, I might be inclined to look into having my juniors train and qualify outside of France, and then take the European Union recognition or French 8 year experience route, or even just take on qualified non-French staff if they speak French. It doesn't necessarily mean that they'll be any worse or better than their "newly qualified" French counterparts.
Stay tuned for another nail-biting episode : "Beam me up, Scottie"
Wednesday, February 20, 2008
Wednesday, February 06, 2008
Grandfather Patent Attorneys Revisited
The French government has just published a decree indicatining how people with a minimum of 8 years experience in Intellectual Property can apply to become registered industrial property attorneys with the French Patent and Trademark Office. The full text can be found here
The aim of the decree is twofold :
- satisfy the present government's requirement to open up the profession and do away with a rather antiquated examination board, discretionary examination papers and marking system ;
- satisfy the National Guild of Industrial Patent Attorneys, who are currently in the throes of a race to try and get as many candidates qualified as possible before we all become Avocats (see my earlier post on that hot topic), and the conditions for entry become noticeably harder, at least for engineers or candidates with a scientific background who would normally have become patent attorneys.
I have summarised the main points of the decree below :
1) The jury referred to in Article R. 421-6 of the Intellectual Property Code (CPI) will meet at least twice a year (Ed - this is a vast improvement on the current examination scheme of 2 yearly examination sessions, alternating between trademarks and patents)
2) The request for entry on the list of qualified persons must be sent to the Director of the Institut National de la Propriété Industrielle (INPI aka French PTO) by registered letter with acknowledgement of receipt.
The request must include :
1° A signed and dated request by the candidate indicating the speciality(ies) for which the candidate requires registration, i.e "brevets d'invention" (patents) and/or "marques ou dessins et modèles" (trademarks or industrial designs).
2° A photocopy of some form of formal personal identification (note that in France, driver's licences do not generally constitute valid personal ID, so you have to show a valid resident's card or a passport).
3° A photocopy of one of the diplomas mentioned at 1° or 2° of Article R. 421-1 CPI. These include the following : a higher education degree or diploma from a University or equivalent institution in law, science or technology, optionally obtained through a recognised further professional training program.
5° A signed declaration of professional experience attesting to the exactitude of qualifying professional activity (i.e. work in Intellectual Property), issued by the employer or tutor under whose responsability the candidate has acquired the experience. The declaration must include a list of responsabilities and activities engaged in by the candidate during his/her professional experience and their duration ; the declaration can include details relating to the prosecution and filing of industrial property titles, or their defense and litigation.
The candidate is allowed to include any other form of evidence that it considers relevant to its request in relation to justifying its professional experience in IP. If the 8 year period of experience has been acquired under the responsability of several different persons, each such person must provide a corresponding declaration.
6° The request must be accompanied by evidence of payment of the required fee which will be decided by the French PTO's administrative council.
The jury will examine all requests that reach the Director of the French PTO at the latest one month before the date at which a meeting of the jury is planned.
The jury will check the candidate's understanding, at an oral interview, of the ethical rules of conduct of the profession, and can, if it deems necessary, hear the candidate on the nature and reality of its professional experience (Ed - just in case you manage to falsify all of the other papers required !!!! - doh !!!!).
Well, I still don't know who is going to sit on the jury, my most recent understanding was that there might at least be one or two registered IP attorneys, the rest being members of the judiciary, the French PTO, and the Bar Association.
One would assume that the French PTO is still going to run a check for "morality", as they called it, i.e. check to see whether the candidate had a past criminal record or not, and yes that check extends to asking the police force in foreign countries about the shady (or not-so shady) past of non-French candidates.
Of course, if you are a foreigner, have all the required experience and documentation, then it should be relatively easy to get on the list. From there, its only a small step to becoming an "Avocat", just wait for us to merge with them early next year, whey hey !!!!!!
The aim of the decree is twofold :
- satisfy the present government's requirement to open up the profession and do away with a rather antiquated examination board, discretionary examination papers and marking system ;
- satisfy the National Guild of Industrial Patent Attorneys, who are currently in the throes of a race to try and get as many candidates qualified as possible before we all become Avocats (see my earlier post on that hot topic), and the conditions for entry become noticeably harder, at least for engineers or candidates with a scientific background who would normally have become patent attorneys.
I have summarised the main points of the decree below :
1) The jury referred to in Article R. 421-6 of the Intellectual Property Code (CPI) will meet at least twice a year (Ed - this is a vast improvement on the current examination scheme of 2 yearly examination sessions, alternating between trademarks and patents)
2) The request for entry on the list of qualified persons must be sent to the Director of the Institut National de la Propriété Industrielle (INPI aka French PTO) by registered letter with acknowledgement of receipt.
The request must include :
1° A signed and dated request by the candidate indicating the speciality(ies) for which the candidate requires registration, i.e "brevets d'invention" (patents) and/or "marques ou dessins et modèles" (trademarks or industrial designs).
2° A photocopy of some form of formal personal identification (note that in France, driver's licences do not generally constitute valid personal ID, so you have to show a valid resident's card or a passport).
3° A photocopy of one of the diplomas mentioned at 1° or 2° of Article R. 421-1 CPI. These include the following : a higher education degree or diploma from a University or equivalent institution in law, science or technology, optionally obtained through a recognised further professional training program.
4° A diploma from the Centre d'études internationales de la propriété industrielle (CEIPI) at the University of Strasbourg, or an equivalent title obtained through a recognised further professional training program. (Ed - the conditions of recognition by the French state of such training programs are laid down elsewhere by law).
5° A signed declaration of professional experience attesting to the exactitude of qualifying professional activity (i.e. work in Intellectual Property), issued by the employer or tutor under whose responsability the candidate has acquired the experience. The declaration must include a list of responsabilities and activities engaged in by the candidate during his/her professional experience and their duration ; the declaration can include details relating to the prosecution and filing of industrial property titles, or their defense and litigation.
The candidate is allowed to include any other form of evidence that it considers relevant to its request in relation to justifying its professional experience in IP. If the 8 year period of experience has been acquired under the responsability of several different persons, each such person must provide a corresponding declaration.
6° The request must be accompanied by evidence of payment of the required fee which will be decided by the French PTO's administrative council.
The jury will examine all requests that reach the Director of the French PTO at the latest one month before the date at which a meeting of the jury is planned.
The jury will check the candidate's understanding, at an oral interview, of the ethical rules of conduct of the profession, and can, if it deems necessary, hear the candidate on the nature and reality of its professional experience (Ed - just in case you manage to falsify all of the other papers required !!!! - doh !!!!).
Well, I still don't know who is going to sit on the jury, my most recent understanding was that there might at least be one or two registered IP attorneys, the rest being members of the judiciary, the French PTO, and the Bar Association.
One would assume that the French PTO is still going to run a check for "morality", as they called it, i.e. check to see whether the candidate had a past criminal record or not, and yes that check extends to asking the police force in foreign countries about the shady (or not-so shady) past of non-French candidates.
Of course, if you are a foreigner, have all the required experience and documentation, then it should be relatively easy to get on the list. From there, its only a small step to becoming an "Avocat", just wait for us to merge with them early next year, whey hey !!!!!!
Wednesday, January 30, 2008
The Scores on the Doors
Yes, the "Ayes" have it, or had it, yesterday, at the AGM of the National Guild of Industrial Property Counsel in France. A massive 66% voted in favour of the resolution for the Guild to continue talks with the French Bar Association with an aim to proposing a text to the Ministry of Justice that would allow for merger of the two professions.
Despite the attempted disruption by the old guard, the motion went through, although by all accounts it was somewhat "mouvementé" as we say over here. However, all is not packaged and parcelled as neatly as one might assume from the results above. Oh no, democracy (or should I say, bureaucracy ?) above all else has to be seen to be respected - this is France, after all, the birthplace of the people's revolution (hmmm, better not wander off down that track). Forget the babbling, what I mean is that we will have to have another vote once the agreement has been hammered out with the Bar Association, and there are plenty of opportunities for the "Nays" to scupper the project and send us all back into oblivion or early retirement. Indeed, in the true "democratic" fashion, the Nays are requiring a qualified majority for that vote, scheduled on February 19th, 2008, for the vote to even be considered valid. I must admit to not being aware of the various quorum requirements for subjects like this within our representative body, so am unable to comment. I will undoubtedly just vote with my feet, as they say, and make sure that my vote goes to the "Ayes".
Told you it was going to be gripping stuff, its about the most exciting thing that's happened to us since the Guild was created (which isn't in fact all that long ago, but hey, who's counting ?)
Anway, time to calm down now and gloat over our recent victory against the Forces of Oblivion...more in Episode IX...where's that good looking princess gone ?
Despite the attempted disruption by the old guard, the motion went through, although by all accounts it was somewhat "mouvementé" as we say over here. However, all is not packaged and parcelled as neatly as one might assume from the results above. Oh no, democracy (or should I say, bureaucracy ?) above all else has to be seen to be respected - this is France, after all, the birthplace of the people's revolution (hmmm, better not wander off down that track). Forget the babbling, what I mean is that we will have to have another vote once the agreement has been hammered out with the Bar Association, and there are plenty of opportunities for the "Nays" to scupper the project and send us all back into oblivion or early retirement. Indeed, in the true "democratic" fashion, the Nays are requiring a qualified majority for that vote, scheduled on February 19th, 2008, for the vote to even be considered valid. I must admit to not being aware of the various quorum requirements for subjects like this within our representative body, so am unable to comment. I will undoubtedly just vote with my feet, as they say, and make sure that my vote goes to the "Ayes".
Told you it was going to be gripping stuff, its about the most exciting thing that's happened to us since the Guild was created (which isn't in fact all that long ago, but hey, who's counting ?)
Anway, time to calm down now and gloat over our recent victory against the Forces of Oblivion...more in Episode IX...where's that good looking princess gone ?
London Protocol - at last !!!
Just a very quick note to say that I have just been informed by my national representative body of the entry into force of the London Protocol for May 1st, 2008. Three cheers, and drinks all round !!!
On the down side, it is interesting to note that our national body, the CNCPI, were informed of France's deposition of its instruments of ratification by the German Ministry of Justice. One would have thought that the INPI/French government would have been kind enough to inform us before everyone else (some British and German colleagues knew before we did, take a look at, e.g. the IPKat blog). Obviously, we are in the dog's house with the French Ministry of Industry and Commerce now that we are going to defect to the Ministry of Justice, or maybe we are just being snubbed in general by the government. I wouldn't be totally surprised considering how we've behaved over the past year or so, humming and hahing, blowing hot and cold, and generally kicking up a stink when it came to the question of translations (among other things).
Well, at last, the wood is starting to be seen through the trees. I can see much belt tightening and gnashing of teeth in store for those French firms who haven't planned financially for the drop off in easy money that the coming into force of the protocol will cause. At least I can now tell my clients that they will be able to make some savings when it comes to validating their European patents. Better than a knock in the teeth with a spiked cricket bat (not that I've ever seen one, mind you, or isn't that what they used to call a cudgel ? - we English are so civilized)
Come on, all we need now is the EPLA and we'll have some semblance of a unitary system of law throughout the EU. Astute readers will note that in my Euroland gung-ho approach I haven't said anything about the Community patent. IMHO, this will remain an economically unviable pipe dream until the various nations can pull their fingers out and do away with the requirement of having everything translated into whatever minority language we can think of adding at ever decreasing intervals as the Union expands. But I shall leave my criticism of that for another day, time to crack open that bottle of champagne that I paid with all those fees gained from translation last year :-)) after all, next year I might be sipping water and riding a bicycle !!!
Toodlepip !!!
On the down side, it is interesting to note that our national body, the CNCPI, were informed of France's deposition of its instruments of ratification by the German Ministry of Justice. One would have thought that the INPI/French government would have been kind enough to inform us before everyone else (some British and German colleagues knew before we did, take a look at, e.g. the IPKat blog). Obviously, we are in the dog's house with the French Ministry of Industry and Commerce now that we are going to defect to the Ministry of Justice, or maybe we are just being snubbed in general by the government. I wouldn't be totally surprised considering how we've behaved over the past year or so, humming and hahing, blowing hot and cold, and generally kicking up a stink when it came to the question of translations (among other things).
Well, at last, the wood is starting to be seen through the trees. I can see much belt tightening and gnashing of teeth in store for those French firms who haven't planned financially for the drop off in easy money that the coming into force of the protocol will cause. At least I can now tell my clients that they will be able to make some savings when it comes to validating their European patents. Better than a knock in the teeth with a spiked cricket bat (not that I've ever seen one, mind you, or isn't that what they used to call a cudgel ? - we English are so civilized)
Come on, all we need now is the EPLA and we'll have some semblance of a unitary system of law throughout the EU. Astute readers will note that in my Euroland gung-ho approach I haven't said anything about the Community patent. IMHO, this will remain an economically unviable pipe dream until the various nations can pull their fingers out and do away with the requirement of having everything translated into whatever minority language we can think of adding at ever decreasing intervals as the Union expands. But I shall leave my criticism of that for another day, time to crack open that bottle of champagne that I paid with all those fees gained from translation last year :-)) after all, next year I might be sipping water and riding a bicycle !!!
Toodlepip !!!
Tuesday, January 29, 2008
The Name Game
A rather obscure title for a rather obscure blog entry on something that is going to have a huge impact on our daily working lives as IP professionals in France. Today, is the day, when the members of the CNCPI, or National Guild of Industrial Property Counsel, meet at their AGM and decide on whether we should all just stay as we are, i.e. insignificant, unheard of and drowning in our own narcism, or instead throw ourselves into the gaping mouth (Ed : shouldn't that be "welcoming arms" ?) of the tentacular bar association mothersquid (Ed : all similarities to any existing ET films starring Sigourney Weaver are purely coincidental).
Yes, if the vote goes in favour of the resolution, we shall all become "Avocats - Conseils en Propriété Intellectuelle" - oooooh, I hear the crowd cry in wonderment. "Errrr, I'm sorry, what' s one of them ?", says someone at the back, like a comment out of another animated movie starring a plasticine dog and his dolt master. So, come on smartass, what is it ?
"Well", I say, my pointy fangs glinting in the dark (Ed - you're frightening the kids, you know that?), "its a lawyer, specialising in intellectual property". Shock horror, faints, swoons, cries from the children, and consternation. But don't worry, we're still going to carry on what we were doing before, we're just getting a new name because we think that it'll make us more familiar to the public (a child gawps at me in fear), (Ed - no, its coz you're 6'4" and you look mean and ugly). No seriously, we are going to be harmoniously integrated into the great bosom of the French legal system, and all will be well (Ed - you're fired, too sarcastic by half).
"I'll be back, vengeance will be mine, ah, ah, ah, ah, ah", I say, grinning menacingly and cackling like all madmen in B-rate movies tend to do.
So there it is. Will I become a Avocat or not ? Whilst those of you with limited knowledge of French might be inclined to chide "he's obviously nuts if he thinks he's going to become a green fleshy fruit that you turn in guacamole", then let me put you straight about what this means for us as a profession :
- we cease to exist in an independent form (much like green fleshy fruit turned into guacomole); no great loss as far as I'm concerned, nobody in the general public knew what we did anyway, other than having a ludicrously pompous title. My son's school administration changed my professional title to "Estate Agent" in their database, which just goes to show how insignificant we are (sob, sob, nobody loves me);
- we get to be called Avocat - isn't that great, sounds so cool, yeah, "Avocat, Avocat, Avocat" (perhaps I really do need a holiday);
- we get to plead in French and European courts (if we ever get a European IP tribunal that is, rage, rage), instead of being relegated to haggling like fishmongers with the INPI, EPO or the OHMI - yay, go Avocat, go !!
- we get to snub our noses back at our European and US counterparts in true French arrogant fashion (Ed - oooh, that was low);
- errrm, did I mention that we get to be called Avocat (Ed - that'll do, lad) ?
Believe it or not, I'm actually in favour of the change. It won't stop me from doing what I do at the moment. It might even open up opportunities elsewhere. For once, our profession is actually doing something about its future, instead of looking over its shoulder to its past. Good luck to the committee, I've already given it a big thumbs up !!
However, all is not rosy and plain sailing in the Guild. There are opponents, who have themselves sharpened their knives and ground their axes. The Dark Side is moving to counter the Light, and the light sabres are drawn. If the resolution fails to get the majority vote, then the central committee will undoubtedly be thrown into disarray, and their may be calls for the current president to resign. It might end in an almost civil war-like stance within the profession, and perhaps we'll get a Chancellor Palpatine instead. Oh, the grippiness of it all, I'm on the edge of my seat in anticipation (Ed - no you're not, you're eating your lunch).
Stay tuned for another thrilling episode in "IP - what's the game ?", coming to your screens soon (Ed - you're still fired, and don't come back).
Yes, if the vote goes in favour of the resolution, we shall all become "Avocats - Conseils en Propriété Intellectuelle" - oooooh, I hear the crowd cry in wonderment. "Errrr, I'm sorry, what' s one of them ?", says someone at the back, like a comment out of another animated movie starring a plasticine dog and his dolt master. So, come on smartass, what is it ?
"Well", I say, my pointy fangs glinting in the dark (Ed - you're frightening the kids, you know that?), "its a lawyer, specialising in intellectual property". Shock horror, faints, swoons, cries from the children, and consternation. But don't worry, we're still going to carry on what we were doing before, we're just getting a new name because we think that it'll make us more familiar to the public (a child gawps at me in fear), (Ed - no, its coz you're 6'4" and you look mean and ugly). No seriously, we are going to be harmoniously integrated into the great bosom of the French legal system, and all will be well (Ed - you're fired, too sarcastic by half).
"I'll be back, vengeance will be mine, ah, ah, ah, ah, ah", I say, grinning menacingly and cackling like all madmen in B-rate movies tend to do.
So there it is. Will I become a Avocat or not ? Whilst those of you with limited knowledge of French might be inclined to chide "he's obviously nuts if he thinks he's going to become a green fleshy fruit that you turn in guacamole", then let me put you straight about what this means for us as a profession :
- we cease to exist in an independent form (much like green fleshy fruit turned into guacomole); no great loss as far as I'm concerned, nobody in the general public knew what we did anyway, other than having a ludicrously pompous title. My son's school administration changed my professional title to "Estate Agent" in their database, which just goes to show how insignificant we are (sob, sob, nobody loves me);
- we get to be called Avocat - isn't that great, sounds so cool, yeah, "Avocat, Avocat, Avocat" (perhaps I really do need a holiday);
- we get to plead in French and European courts (if we ever get a European IP tribunal that is, rage, rage), instead of being relegated to haggling like fishmongers with the INPI, EPO or the OHMI - yay, go Avocat, go !!
- we get to snub our noses back at our European and US counterparts in true French arrogant fashion (Ed - oooh, that was low);
- errrm, did I mention that we get to be called Avocat (Ed - that'll do, lad) ?
Believe it or not, I'm actually in favour of the change. It won't stop me from doing what I do at the moment. It might even open up opportunities elsewhere. For once, our profession is actually doing something about its future, instead of looking over its shoulder to its past. Good luck to the committee, I've already given it a big thumbs up !!
However, all is not rosy and plain sailing in the Guild. There are opponents, who have themselves sharpened their knives and ground their axes. The Dark Side is moving to counter the Light, and the light sabres are drawn. If the resolution fails to get the majority vote, then the central committee will undoubtedly be thrown into disarray, and their may be calls for the current president to resign. It might end in an almost civil war-like stance within the profession, and perhaps we'll get a Chancellor Palpatine instead. Oh, the grippiness of it all, I'm on the edge of my seat in anticipation (Ed - no you're not, you're eating your lunch).
Stay tuned for another thrilling episode in "IP - what's the game ?", coming to your screens soon (Ed - you're still fired, and don't come back).
Thursday, January 17, 2008
Give me an E, a P, a L and an A, and I'll give you the London Protocol
Such might be the title of the current ongoing political debate between France, and Germany, at least if the rumours in the European IP grapevine are true.
Indeed, in the very true spirit of intergovernmental political negotiation, it appears that the French government is holding back on filing its instrument of ratification with the European Patent Office (EPO) on the London Protocol, at least until the German government agrees to abandon the dual court system for trying invalidity and infringement and wholeheartedly and unreservedly adopts the EPLA.
As one might guess, the German government doesn't appear to be particularly keen on being held hostage in this way.
When I submitted the question of this rumour to our representative professional body, all I got in return was a rather laconic, "the French government will soon be filing its instrument of ratification with the EPO". Well, that was in early December 2007, and still nothing appears to have happened, so maybe there is some truth to the rumour after all. Sigh.
Of course, political bickering and blackmail between states is nothing new, often it is simply called "diplomacy" failing a more honest appraisal of the situation. Like most things here in Euroland, however, this form of diplomacy wreaks havoc with legal certainty, and evidently stands in the way of getting anything done, not to mention the strategy that we, as counsel, might have with regard to our clients in attempting to offer them the best protection for the least amount of financial outlay. Of course, the French government believes it has the upper hand, but in the end, I personally feel they've chosen the wrong hostage to hang up and threaten with a knife to the jugular. If I were paranoid, I'd probably say that it was thanks to the own workings of our internal representative body which was strongly against ratification of the London Protocol, and that they have now found a way of leveraging pressure just to put the axe in one more time. Of course, I have absolutely no proof of my paranoid theories, and maybe I should just sit down with a cup of tea and take my tablets like a nice boy ;-) - there, there, that's better, now, where was I ?
Back some time soon no doubt for further mind numbing, I mean, thought provoking :-) adventures.
Indeed, in the very true spirit of intergovernmental political negotiation, it appears that the French government is holding back on filing its instrument of ratification with the European Patent Office (EPO) on the London Protocol, at least until the German government agrees to abandon the dual court system for trying invalidity and infringement and wholeheartedly and unreservedly adopts the EPLA.
As one might guess, the German government doesn't appear to be particularly keen on being held hostage in this way.
When I submitted the question of this rumour to our representative professional body, all I got in return was a rather laconic, "the French government will soon be filing its instrument of ratification with the EPO". Well, that was in early December 2007, and still nothing appears to have happened, so maybe there is some truth to the rumour after all. Sigh.
Of course, political bickering and blackmail between states is nothing new, often it is simply called "diplomacy" failing a more honest appraisal of the situation. Like most things here in Euroland, however, this form of diplomacy wreaks havoc with legal certainty, and evidently stands in the way of getting anything done, not to mention the strategy that we, as counsel, might have with regard to our clients in attempting to offer them the best protection for the least amount of financial outlay. Of course, the French government believes it has the upper hand, but in the end, I personally feel they've chosen the wrong hostage to hang up and threaten with a knife to the jugular. If I were paranoid, I'd probably say that it was thanks to the own workings of our internal representative body which was strongly against ratification of the London Protocol, and that they have now found a way of leveraging pressure just to put the axe in one more time. Of course, I have absolutely no proof of my paranoid theories, and maybe I should just sit down with a cup of tea and take my tablets like a nice boy ;-) - there, there, that's better, now, where was I ?
Back some time soon no doubt for further mind numbing, I mean, thought provoking :-) adventures.
Wednesday, October 10, 2007
Adoption of London Protocol in France or, How Many French IP Firms will go bust in 2008 ?
At last !! The French government has finally managed to get its act together and vote for ratification of the London Protocol - Welcome to the 21st century! With a whopping 280 votes in favour, and only 33 votes against, the French Senate has confirmed the trend set by the parliament a few weeks ago, and finally practiced what the government has been preaching about stimulating economic growth in France.
As a French patent attorney, I personally welcome this decision, which has been all too slow in the coming. Many of my French colleagues, including the professional body that represents us, the CNCPI, do not, and have always opposed moves to reduce costs for the hands that feed us, i.e. our clients, instead of focussing on what we are supposed to be doing, i.e. counselling. Those very same clients are the ones that would file European patent applications, and then could not afford to validate the granted European patent in the various designated states because of the cost of translations. What would be the advice that we gave them ? Well, limit your choices to those countries where you either have an actual business activity (commercial or production), or to those where infringement might be a possibility. This often meant a drastic reduction in the playing field, and many a client quite reasonably questioned me on the rationale of having filed an European application in the first place.
Aside from the immediate consequences of this vote, there will be a significant impact on the revenue streams of many French IP outfits that basically depended on translation activity for survival, and that either refused to look ahead and leave some eggs out of the basket, or just simply buried their heads in the sand (ostrich for dinner, any one ?). That behaviour in itself now turns out to have been a major strategic business error, which additionally was, in my opinion, totally foreseeable.
The fallout of this decision, however, does not stop at the IP boutiques : patent translation firms have flourished over the past 20 years in France, and these firms are all going to be hit by the ratification. Rather unsurprisingly, the representative bodies of these firms also attempted to put pressure on the government not to ratify the London Protocol.
So what is the likely outcome of the present decision, once it comes into effect ? As I see it, and I may be wrong (nobody is perfect, after all), a fairly sizable number of small IP firms in France will simply go bust, because they didn't have the foresight to address this issue before it became a reality. Others will undoubtedly be so weakened that they will be forced into buyouts or mergers with larger firms, probably on not so friendly terms, since the global value of the boutique will be diminished (and this, irrespective of the size of the firm). Even the mammoths of the French IP world will be hit, although they will probably have the resources and variety of work that will enable them to weather the storm and come out battered, but essentially unbroken. Nonetheless, layoffs are in all likelihood to be expected and we may see a good deal more job postings for administrative staff seeking work.
Another thing that will have to change will be the daily life of the junior or trainee attorneys, who used to spend a lot of their early days in law firms proofreading the translations before they were filed with the French PTO (INPI). My own personal recollection is that it was an extremely unrewarding and entirely unprofitable experience period in my life, especially once I learned the statistics relating to who actually read the damn things in the first place, i.e. virtually nobody. Some of my fellows might say, and even did, "All character building stuff", to which I would reply : "Characters could be better built by teaching trainees to "counsel" clients, rather than force feeding them with sales pitch." Unfortunately, our profession in particular, seems to feel that it has had for the past 20 years an unwritten duty to "sell" rather than "advise".
Of course, even the most basic of IP entrepreneurs understands that we are in it to make money (and I am no exception), otherwise we would all be working for the Citizen's Advice Bureau or some other such freebie quango (which we already do, by the way, to the extent provided by the law), but there is a distinct difference between making a client pay for a service to which real value, of use to the client, has been added, e.g. counselling with all of the experience and business acumen that goes with it, and the opposite end of the spectrum where one simply takes the client's money because it is easy to do so and facilitated or obligatory from the legislative perspective. Perhaps it has also got something to do with the fact that many French IP professionals have either very little or no strategic industrial experience, and so feel ill at ease offering advice that truly corresponds to a client's business strategy. I'm being naturally provocative here, but I do suspect that there is some degree of truth in what I write, and this is certainly true from my own personal experience of many of those whom I have had cause to meet along the way.
In response to the impending crisis, I sometimes hear IP firms saying : "We'll develop new "products" to sell to our clients and generate new income". My own response to that kind of thinking is that (a) it would appear to be rather late in the day to begin thinking about new products, (b) how precisely does one propose to sell these products to these clients, I mean, why buy this new "product", when the client was (dis)satisfied with what we were already doing, (c) other than counselling, exactly which new products can one come up with - it's not as if we are selling vacuum cleaners or bathroom detergents - and (d) even if all of the above were possible, the number of "products" created would have no market penetration in the timeframe required to offset the drop in income due to the London protocol.
So, how many French IP firms will go bust or be acquired during 2008 ? Well I really don't know, but would hazard a guess at say 25-30% of all French firms. A quarter to a third of the profession, now that's something to think about. As it stands, we currently do not even have enough young professionals working in French IP to cover the projected retirement of a third of the profession over the next 10 years, a situation which is yet again of our own making (and on which I shall no doubt rant in a separate entry). Whatever happens, there will necessarily be a radical change in the IP landscape in France in the coming year. We had it coming guys (and girls), and as usual, we've only got ourselves to blame.
As a French patent attorney, I personally welcome this decision, which has been all too slow in the coming. Many of my French colleagues, including the professional body that represents us, the CNCPI, do not, and have always opposed moves to reduce costs for the hands that feed us, i.e. our clients, instead of focussing on what we are supposed to be doing, i.e. counselling. Those very same clients are the ones that would file European patent applications, and then could not afford to validate the granted European patent in the various designated states because of the cost of translations. What would be the advice that we gave them ? Well, limit your choices to those countries where you either have an actual business activity (commercial or production), or to those where infringement might be a possibility. This often meant a drastic reduction in the playing field, and many a client quite reasonably questioned me on the rationale of having filed an European application in the first place.
Aside from the immediate consequences of this vote, there will be a significant impact on the revenue streams of many French IP outfits that basically depended on translation activity for survival, and that either refused to look ahead and leave some eggs out of the basket, or just simply buried their heads in the sand (ostrich for dinner, any one ?). That behaviour in itself now turns out to have been a major strategic business error, which additionally was, in my opinion, totally foreseeable.
The fallout of this decision, however, does not stop at the IP boutiques : patent translation firms have flourished over the past 20 years in France, and these firms are all going to be hit by the ratification. Rather unsurprisingly, the representative bodies of these firms also attempted to put pressure on the government not to ratify the London Protocol.
So what is the likely outcome of the present decision, once it comes into effect ? As I see it, and I may be wrong (nobody is perfect, after all), a fairly sizable number of small IP firms in France will simply go bust, because they didn't have the foresight to address this issue before it became a reality. Others will undoubtedly be so weakened that they will be forced into buyouts or mergers with larger firms, probably on not so friendly terms, since the global value of the boutique will be diminished (and this, irrespective of the size of the firm). Even the mammoths of the French IP world will be hit, although they will probably have the resources and variety of work that will enable them to weather the storm and come out battered, but essentially unbroken. Nonetheless, layoffs are in all likelihood to be expected and we may see a good deal more job postings for administrative staff seeking work.
Another thing that will have to change will be the daily life of the junior or trainee attorneys, who used to spend a lot of their early days in law firms proofreading the translations before they were filed with the French PTO (INPI). My own personal recollection is that it was an extremely unrewarding and entirely unprofitable experience period in my life, especially once I learned the statistics relating to who actually read the damn things in the first place, i.e. virtually nobody. Some of my fellows might say, and even did, "All character building stuff", to which I would reply : "Characters could be better built by teaching trainees to "counsel" clients, rather than force feeding them with sales pitch." Unfortunately, our profession in particular, seems to feel that it has had for the past 20 years an unwritten duty to "sell" rather than "advise".
Of course, even the most basic of IP entrepreneurs understands that we are in it to make money (and I am no exception), otherwise we would all be working for the Citizen's Advice Bureau or some other such freebie quango (which we already do, by the way, to the extent provided by the law), but there is a distinct difference between making a client pay for a service to which real value, of use to the client, has been added, e.g. counselling with all of the experience and business acumen that goes with it, and the opposite end of the spectrum where one simply takes the client's money because it is easy to do so and facilitated or obligatory from the legislative perspective. Perhaps it has also got something to do with the fact that many French IP professionals have either very little or no strategic industrial experience, and so feel ill at ease offering advice that truly corresponds to a client's business strategy. I'm being naturally provocative here, but I do suspect that there is some degree of truth in what I write, and this is certainly true from my own personal experience of many of those whom I have had cause to meet along the way.
In response to the impending crisis, I sometimes hear IP firms saying : "We'll develop new "products" to sell to our clients and generate new income". My own response to that kind of thinking is that (a) it would appear to be rather late in the day to begin thinking about new products, (b) how precisely does one propose to sell these products to these clients, I mean, why buy this new "product", when the client was (dis)satisfied with what we were already doing, (c) other than counselling, exactly which new products can one come up with - it's not as if we are selling vacuum cleaners or bathroom detergents - and (d) even if all of the above were possible, the number of "products" created would have no market penetration in the timeframe required to offset the drop in income due to the London protocol.
So, how many French IP firms will go bust or be acquired during 2008 ? Well I really don't know, but would hazard a guess at say 25-30% of all French firms. A quarter to a third of the profession, now that's something to think about. As it stands, we currently do not even have enough young professionals working in French IP to cover the projected retirement of a third of the profession over the next 10 years, a situation which is yet again of our own making (and on which I shall no doubt rant in a separate entry). Whatever happens, there will necessarily be a radical change in the IP landscape in France in the coming year. We had it coming guys (and girls), and as usual, we've only got ourselves to blame.
Subscribe to:
Posts (Atom)