World Mental Health Day Survey Results: Supporting well-being in the IP Profession

As part of the World Mental Health Day webinar on 10th October, we sent out a survey to the webinar attendees.

While we only have a small sample of 28 responses to the survey, we believe that there are still some useful learning opportunities that firms can take from it. Two IP founder, Dr Anna Molony, shares her thoughts on these.

Q1: Do you feel that your organisation’s leadership is supportive of mental health and work-life balance?

The answer is 70% ‘Yes’, which appears positive. However, the comments highlight some potentially worrying issues. While most respondents are positive about having flexible working, the comments suggest that this doesn’t always translate into work-life balance. And while many are positive about the mental health training and support that their firms provide, the comments suggest that some firms still have a poor understanding of how to support mental health issues.

Q2: Does your organisation have a nominated Mental Health lead who can offer you support?

An interesting 50:50 yes:no split, suggesting that some firms could be doing more to provide mental health support.

Q3: Do you feel comfortable discussing mental health issues with your colleagues or manager?

A similar split as for Q2, which one could interpret as indicating that a lack of mental health lead is making it more difficult for people to discuss their mental health. The negative comments also highlight a potential problem that people believe that raising mental health issues with a colleague/manager will be seen as a weakness.

Q4: Does your organisation provide training on mental health awareness or stress management?

While half of respondents answered ‘Yes’ some of the comments suggest that the mental health training that is being provided at some firms is not very helpful.

Q5: Does your organisation offer flexible or hybrid working arrangements?

An overwhelming number of respondents report that their firms offer flexible or hybrid working arrangements. The comments indicate that some firms are entirely flexible, while others require a certain number of days in the office each week, which appears typically to be 1-2 days.

Q6: Does your organisation offer a wellbeing scheme to employees or include wellbeing in an Employee Assistance Programme (EAP)?

65% of firms offer a wellbeing scheme or include wellbeing in their EAP, but nearly every comment reported that the respondent had not used it.

Q7: How frequently do you feel anxiety due to work issues?

With over 40% of respondents reporting regularly feeling anxiety due to work issues and only 10% rarely feeling so, we’d suggest that this might be something that firms need to investigate to find out what could be causing work-related anxiety.

Q8: How frequently do you work beyond your contracted working hours?

Read together with the answers to Q1 and Q5, it would appear that flexible working may not be helping everyone to manage their work-load within their contracted hours. With over 57% of respondents regularly working longer than their contracted hours, do firms need to reconsider whether the work-loads that they are expecting people to manage are realistic?

Q9: If you have a billing target, do you feel any stress related to achieving it?

While over 64% of respondents reported that they don’t feel any stress related to achieving their billing targets, is that because they are working longer hours in order to do so? The answers to Q8 suggest that it might be.

Q10: How do you typically manage any work-related stress that you are feeling?

It is encouraging to see that so many people are finding positive ways to manage any stress that they are feeling.

Q11: Have you ever considered leaving the profession due to stress or other wellbeing-related issues?

Half of respondents have considered leaving the profession. The comments identify work-load, pressure of meeting deadlines, worry about missing a deadline and poor management as reasons for doing so.

Summary

There have been some significant positive changes in the IP profession in recent years with the introduction of flexible and hybrid working, and improved awareness and support for mental well-being within the profession. However, it feels like very little has changed in the nearly 30 years since I joined the profession in terms of high work-loads and the stress and anxiety that these, and the fear of missing deadlines or making a mistake, can cause. I believe there is still much room for improvement if we truly want to make the working lives of patent and trade mark attorneys, IP solicitors, paralegals and support staff better.

The 3 most important things for optimizing working between patent in-house counsel and private practice attorneys

Two IP founder and director Anna Molony was recently invited to speak at the CTC Legal Media Winter IP Conference.  Here, Anna shares the key takeaways from the discussion on the day for those unable to attend the event.

As part of the panel at the CTC Legal Winter IP Conference session “Maximizing synergy: nurturing dynamic partnerships between in-house counsel and private practice” I shared some of the things I’ve learnt from being in-house counsel and from working with in-house counsel clients as an attorney in private practice.

For those who didn’t make it to the Conference, here are

The 3 most important things I’ve learned about optimizing working between patent in-house counsel and private practice attorneys:

  1. Private practice attorneys – sometimes you really do need to have a serious level of expertise in the technology to protect it properly
  2. In-house counsel – don’t underestimate the value of giving the private practice attorney you’re instructing the business context of the invention
  3. In-house counsel – be really clear about how you want the private practice attorneys you’re  instructing to do the work you give them

So, how come I know about this?

Well, I’ve been on both sides of the in-house counsel/private practice relationship.

For a couple of years, I was in-house counsel at a high-tech, spin-out called Indigo Photonics. Indigo made optical fibre sensors and I lead the IP function internally, with external support from a private practice firm who did the filings and so on. During my time at Indigo I learnt about how R&D teams work and how to work with them, and I learnt about where IP sits within an early stage, VC funded business and I learnt a lot about what an in-house attorney needs from their private practice outside counsel.

As an attorney in private practice, I have worked closely with a number of corporate in-house IP teams, mainly with their patent departments. Each relationship is different in terms of the work that I do and how I do it. For one client, we are that outside resource that does the filings and so on, for another I have been drafting patent applications for nearly 20 years, and for a third I work 1 day per week for them, as a fully integrated part of their patent team.

I’ve learnt a lot about that relationship from working with each of those clients.

 

Let’s take a look in a bit more detail at those 3 most important things for optimizing working between patent in-house counsel and private practice:

  1. The problems that can arise if the private practice attorney doesn’t understand the client’s technology properly

As patent attorneys, we are great at getting our heads around a wide range of technologies and understanding them to a level that is “good enough” for us to be able to advise our clients. But, for clients who are leading the way in their technical fields, having a “good enough” understanding of the technology sometimes just isn’t, well, good enough. Expertise is needed.

I’ve seen enough poorly drafted patent applications in my areas of expertise (optical comms, optical fibre, lasers, photonics) over the years to know the problems that not properly understanding the client’s technology can cause. This is how it sometimes goes: I read the patent claims and I think “Hmmm”, and then I read the description, particularly the bits that have clearly been pasted in from the invention disclosure, and I think “Double hmmm. I can see what the invention is but that’s not really what the claims are covering”.

I have, in those circumstances, then had to draft an exam response – it’s not straightforward, overcoming the Examiner’s objections while at the same time trying to redraft the claims to cover the invention properly. I’ve also had to handle exam reports where the patent office Examiner hasn’t properly understood the invention. Both can cause serious limitations to the scope of the patent you can get and therefore on the commercial value of the patent.

In some areas of technology, if you don’t have a depth of understanding of the technology, you simply can’t describe it, and define the claims, properly. And, if the examiner doesn’t understand the technology, how can you explain where they’ve gone wrong if you don’t understand it fully yourself?

So, my first lesson to share would be this: in-house counsel, make sure that your outside private practice attorneys have the necessary level of expertise to fully understand your technology; and private practice attorneys, don’t take on work that you’re not technically qualified to cope with.

  1. The value of in-house counsel giving private practice attorneys the business context of the invention

The amount of information about an invention that you receive from a client can massively impact the quality of the work that you can do.

At one extreme, I’ve prepared exam responses where all I’ve had is the published application, the exam report, the prior art, and instructions to prepare a response that overcomes the objections. Now, I can absolutely do that. But without any access to the inventor or any information about which features of the invention are commercially important, my response may not actually result in commercially useful protection.

At the other extreme, one of my clients gives me access to a brilliant internal document that they have for each patent family. It’s a narrative of where the invention came from, what the commercially important features are, what’s happened during the prosecution of each application in the patent family, and notes from the inventors and in-house counsel. It is a fantastic source of context and supporting information for me when I’m preparing an exam response or considering whether we need a divisional application to protect any other features. I can highly recommend writing this type of document, the time spent is well worth the effort.

  1. The value of in-house counsel being really clear about how they want the outside counsel to do the work.

As in-house counsel, how tightly do you want to control how the private practice attorney that you’re instructing does the work you give them. What drafting style should they use? Is there an in-house style or are you happy to let them draft in their own way?

I’ve got a lot of experience of drafting applications using a template and very detailed drafting style guidelines from the client. But I also have clients whose in-house counsel are happy for me to draft in whatever style I think best, on the basis that I know as much about the technology as they do. Both have their merits and their disadvantages.

The first approach can result in a very highly controlled patent portfolio but it requires a significant amount of input from in-house counsel. And not every qualified attorney will be happy having their work scrutinized on a regular basis. I’m used to it and I’m pretty comfortable with it because I think there’s always something new to be learned.

The second approach, letting people work in their own way, will probably be more comfortable for most private practice attorneys. And I think drafting can be easier to do if you’re not trying to squeeze it in to someone else’s preferred approach. However, it may mean that your patent portfolio is less consistent and, possibly, of more variable quality.

Copyright rowed back

The intersection of copyright law and craftsmanship has long been a contentious issue, and few cases highlight the debate better than WaterRower’s battle to protect its iconic rowing machine.

Patent attorney Neil Kilpatrick, who once acted for WaterRower, delves into the complexities of the case, unpacking the legal clash between UK and EU interpretations of copyright.

As the courts wrestle with defining “artistic craftsmanship,” Neil sheds light on the broader implications for intellectual property law and design protection, leaving us to ponder where the line between art and craftsmanship truly lies.

It’s been a long wait, but the scope of copyright to protect 3D articles and products has been given a set-back after WaterRower lost its argument that its iconic water rowing machine does not qualify as a work of artistic craftsmanship.

The WaterRower is an aesthetically pleasing, “nice to look at” piece of exercise equipment. It’s featured prominently in TV and film and has been displayed and sold by the Design Museum and MoMA. It’s undoubtably a great design and WaterRower rightly try their best to protect their product and its status.

Knowing this, back in 2019 I was faced with a dilemma – competitors were producing products that strayed closer and closer to WaterRower’s main product line and design. Indeed one that they had been very successfully manufacturing and selling since the late 1980’s. All patents had lapsed, and unregistered and registered designs were also past their end date. Setting aside trademarks, the only IP right left was copyright.

The traditional thought is that copyright protects artistic, literary, musical works, not products. However, these artistic works can include sculptures and works of “artistic craftsmanship”. And what is a work of artistic craftsmanship? Why a work by a craftsman who is also artistic of course.

Is the WaterRower a work of artistic craftsmanship? Well, in my mind it actually didn’t matter. EU case law binding in the UK had established that copyright subsists regardless of artistic merit. So it should subsist in works of artistic craftsmanship without the artistry – a work of craftsmanship. Thus began WaterRower’s dispute with Liking.

So which approach is correct? The broad EU one that copyright exists for all original works, or the UK one that requires original works to also conform to a set of categories. This is the crux of WATERROWER (UK) LIMITED v LIKING LIMITED (T/A TOPIOM) [2024] EWHC 2806 (IPEC).

I will leave the legal detail to another day, but you can tell that the judge wrestled with this dilemma. Indeed, 15 months passed from hearing to judgment. In the event, he found that whilst the WaterRower has aesthetic appeal and the designer could be considered a craftsman, it does not have artistic quality.

How does this square to EU law (still binding on the UK post-Brexit)? Well, in my opinion it doesn’t – although perhaps the judge felt bound to follow UK precedent even whilst acknowledging this inconsistency.

Personally, whilst I do not dislike seeing copyrights “overreach” being rowed back, I still see the glaring mismatch between copyright and how it is applied in the UK and in the EU. I feel that UK law or at least the approach taken by the UK courts needs to be clarified. Until it is then this will remain a valid but uncertain option for proprietors seeking to prevent copycats.

So will WaterRower appeal? I no longer act for them since moving firms, but I hope so. However I suspect that until the Supreme Court gets the opportunity to discuss the issues with the law and earlier precedent, that we will continue to be left wondering when a craftsman becomes an artist craftsman and so when craftsmanship becomes artistic craftsmanship.

If you would like further advice or support, please get in touch via our website here or email us at hello@two-ip.com.