IP services and professional standards

The August 2010 issue of JIPLP is now available online (you can take a look at its contents here). The Editorial runs as follows:

"IP Services and Professional Standards

How do you know if a firm of patent or trade mark attorneys, or any given member of those professions, is any good? Clients need an answer to this question, but they are not always sure who can tell them. Terms such as ‘leading firm’, ‘leading edge’, ‘respected practice’, ‘first-class service’, ‘exceptional value for money’, and ‘we address the individual needs of each client’ are more or less par for the course and, while truth in advertising is a value to which we all subscribe, through legislative provisions and case law, such terms are generally regarded as marketing puffs rather than as precise and literal descriptions.

So if clients need more information, to whom should they turn? Many firms quote polls or awards in which they have been identified as Best Firm in some category or other, but anecdotal evidence derived from discussions with the firms in question suggests that they generally treat them with mild amusement rather than as precious accolades, probably since the statistical reality is that, in any year, Top Dog status is generally likely to be bestowed on one's competitors. Ideally, a business in need of good IP representation should be able to ask its competitors how satisfactory they have found their own professional service suppliers—but for obvious reasons, this does not normally happen.

There are some objective and freely available data from which a potential client can get some idea of a prospective firm's activities, but even those are not very helpful. Lists showing which firms file the most trade marks or patents, for example, show the extent of involvement of those firms in filing work and may also reflect the degree of commercial activity of their clients, but they do not indicate if that work is done well and within an acceptable range of budgetary commitment on the part of the client. Likewise, data showing which firms are most frequently in court might suggest expertise in IP litigation or its opposite—a failure to negotiate or delivery settlement of disputes without the need to institute proceedings.

The client is not alone with these difficulties. IP practitioners must identify functional excellence and value for money in fellow practitioners in other jurisdictions, when representing their clients' transnational or global interests. Judging by the number of requests I receive for recommendations, even skilled and responsible practitioners prefer to back their own impressions with corroborative opinions of others (perhaps these requests themselves reflect a commendable caution and prudence on the part of those who make them).

The British Standards Institute (BSI), for one, would have IP service providers sign up to a set of clearly stated professional and ethical standards which would entitle them to display the BSI's logo and thus hold out to the public, more persuasively than a thousand self-proclaimed hyperboles, that they maintain the level of professional performance required by the BSI number in question. BSI standards exist for common consumer products (which visitor to Britain has not encountered BS 1254 for plastic toilet seats?) as well as countless industrial and now professional service. Why then has the proposed standard for IP services not met with enthusiastic applause?

While the IP professions may not at present be able to point to a specific standard which speaks to their clients and gives them confidence, they already have something else. Whatever their terminology, patent and trade mark attorneys, solicitors, barristers, and others are not only highly trained and highly skilled but highly regulated. The requirements of professional regulation are in many jurisdictions so onerous that one might reasonably ask whether, in addition to a current practising certificate, any further assurance is needed. Given the vigorous competition in the current climate, which tends to boost aspirations towards professional excellence while depressing fees, it might be felt that the client needs no further assurance at all".