Fear and loathing in patent land

There’s nothing wrong with patents or patent attorneys – it’s how we use them that can cause problems

There’s nothing wrong with patents or patent attorneys – it’s how we use them that can cause problems.

The world is a strange place. Since establishing EverEdge IP we have, on more than one occasion, been labelled 'anti-patent' or 'anti-patent attorney'.

It's a funny kind of accusation really as EverEdge IP engages and employs patent attorneys on our staff, is now regarded as one of the world's top IP strategy firms and actively promotes the importance of IP, including patents. 

However, it does neatly summarise the division opening inside the rapidly changing IP industry: on one hand are patent attorneys and their job is to protect IP rights. Nothing wrong with that; good ideas often need protection. Patent attorneys (and their cousins, trademark attorneys) focus almost universally on the hard IP rights – patent and trademarks – rather than the soft IP rights – copyright and know-how. 

No surprise there – you can make a darn sight more money filing patents than you can trying to sell services around copyright or confidential information. However, the key to remember is that be it patents or trademarks, the focus is selling protection, not making money from the IP. Unfortunately, in an industry where less than one in 1,000 patents generates any money at all, quality control can be poor; imagine quality control if only every ten thousandth car needed to be driven!

On the other hand, in the past decade you have seen the emergence of specialist IP strategists whose job is to provide IP and technology owners with advice on if and how IP should be protected and how it can be commercialised. 

IP strategists look at IP and technology from primarily a commercial perspective to analyse what you have, if it should be protected and what combination of the whole spectrum of IP classes should be used to create that protection. 

An IP strategist should have deep IP experience but absolutely should not be filing your patents and trademarks, for the obvious reason that you should not let the person defining your IP protection strategy benefit from selling you that IP protection. 

In other words, don't ask your patent attorney if you need a patent, or as my  father would say, 'Don't ask a barber if you need a haircut'.

As an IP or technology company owner, the key is to keep the two core IP functions of protection and strategy/management separate at all times. This is becoming ever more important as IP is increasingly recognised as a critical business asset. 

With that understood I can unequivocally say that first, a good patent attorney is worth their weight in gold (provided that you are using them in the right role: protection, not strategy) and second, there are some very good patent attorneys in New Zealand.

The obvious question then is, how do you tell the good from the not so good? The answer is twofold. Firstly, ensure your patent attorney has excellent domain expertise; i.e. being world-leading in biotech doesn't mean you know your stuff in agritech. Secondly, your patent attorney should understand their role is as IP protector, not as a strategy definer. 

So below is a list of New Zealand patent attorneys that we think really get it and we have been privileged to work alongside on occasion. Important disclaimer: this list is compiled completely independently and without the knowledge or input of any patent attorney. 

No favours were given or received!

Mechanical: Anton Blijevens, AJ Park (Auckland)
Electrical: Leonard Cousins, Origin IP (Auckland)
Software: John Terry, Ellis Terry (Wellington)
Biotechnology: Greg Lynch, Catalyst IP (Wellington)
Trademarks: Simon Rowell (Auckland)
Chemical: Julie Balance, In Legal (Wellington)
Litigation: Rosemary Wallis, Baldwins (Auckland)

So in summary, neither patents nor patent attorneys are bad; in fact, both can be incredibly valuable provided you remember to separate protection from strategy and management and ensure that your patent attorney does the same. 

​Paul Adams is CEO of EverEdge IP, New Zealand’s largest and most successful intangible asset management and commercialisation firm, winner of the Outstanding IP Leader Award, China 2012 and ranked as one of the world’s Top300 IP Strategists, www.everedgeip.com.