With more and more information being catapulted into cyberspace and fast-improving technologies, intellectual property law is an increasingly dynamic and busy field. Stephanie Quine asks IP lawyers how they keep up the pace
TECH RACE: With the net generation entering the workforce and technologies enhancing in sophistication, IP lawyers are busy decoding false senses of security within companies.
This April, Sony's PlayStation network shut down after a hacker accessed over 100 million users' account information. The Australian Privacy Commissioner investigated the security breach, which affected 1.5 million Australian users, and expressed its concern that Sony kept credit card details on an outdated database. Only weeks before, at least 10 parliamentary computers, including those of Prime Minister Julia Gillard and Foreign Minister Kevin Rudd, were reportedly hacked by Chinese intelligence agencies.
The consequences of these breaches extend past the risk of identity theft, fraud and SPAM into threats to national security and defence - made clear this month when Australia and the United States formally wrote cyber attacks into an international defence treaty.
The ease with which people can obtain and use devices that store large volumes of information in the 21st century is unprecedented. Head of the forensic technology practice at boutique advisory firm McGrathNicol Forensic, Mark Garnett, says this is the challenge facing intellectual property (IP) lawyers today.
"You can store more on just a tiny memory stick that you can buy for $10 than you could probably fit into a skyscraper," he says.
When Garnett first started in the industry he saw the theft of electronic IP three or four times a year. Now, he gets an inquiry once a week.
Part of the problem is that organisations and companies aren't adequately prepared.
"Most organisations today have a love affair with electronic information. They create huge amounts of data - a lot of it commercially sensitive - and they just lose control of it," says Garnett, who analyses and recovers data for banking, technology and telecommunication companies.
"People think that by deleting files and formatting this drive that they're erasing that activity because they saw it on CSI last week, but it doesn't work like that"
Mark Garnett, Head of Forensic Technology, McGrathNicol Forensic
Much attention is paid to protecting IP from external sources, but companies often neglect to protect it from internal theft, he says.
"They would outnumber 10 to one in terms of internal to external engagements we deal with," he says, adding that people use a whole range of devices to steal IP to avoid raising suspicion.
"iPods, cameras, anything they can lay their hands on to make it look like they're innocuously showing photos to somebody and in the background their copying 10,000 documents onto their camera to remove or take to a competitor."
On the upside, the small amounts of knowledge most people possess of such devices, causes them to make mistakes.
"People think that by deleting files and formatting this drive that they're erasing that activity because they saw it on CSI last week, but it doesn't work like that ... So that little bit of knowledge can be dangerous, for them at least...[but] great for us," says Garnett.
Valuing intellectual property
The value of intellectual property and its protection is a hotly debated topic around the world, especially when creative content and design are concerned.
In August, Mallesons Stephen Jaques won a six-year legal battle for Danish home wares company, BodumGroup, to have its coffee plunger design protected. Additionally, Brisbane mid-tier firm Bennett and Philp is currently fighting the 52nd trademark case for European maker and exporter of Irish whisky, Wild Geese.
Director of the firm, Ken Philp, explains that his client Wild Geese has been pursued by Wild Turkey for over ten years, through over 50 pieces of litigation and trademark proceedings in countries all around the world.
"IP knows no boundaries," says Philp, who also acted on copyright claims for the Jimi Hendrix family, through referrals from American and European attorneys.
"There's a real concern for inventors at the moment. There's talk about getting rid of innovation patents, which I think would be a really big retrograde step"
Ken Philp, Director, Bennett and Philp
Kate Hay, a senior associate patent litigator with Griffith Hack, says that although Australia is a small market it is a very innovative one, which values its inventors. "Australia is seen as a patent-friendly jurisdiction," she says.
The Raising the Bar bill, designed to strengthen and improve Australia's IP system, was introduced in the Senate in late June.
While IP lawyers are still watching to see how it unfolds, Hay expects the bill to make it easier to obtain patent, trade mark, copyright, design and plant breeder protections.
Philp however, is more wary, believing the changes will make it more difficult, expensive and time-consuming for inventors to get their patent protected.
"There's a real concern for inventors at the moment. There's talk about getting rid of innovation patents, which I think would be a really big retrograde step because they are brilliant things for people who've got an innovation as opposed to a full blown invention," he says. "There are lots of things that don't qualify for a patent but which are genuinely innovative and deserve protection."
Boutique versus top tier
In terms of competing for work, Philp says specialist IP firms compete "fairly evenly" with the top tier, especially due to their cheaper rates.
Hay agrees, but believes that maintaining affordability for clients calls for efficient IP advisory and litigation.
"There is an opportunity to be more agile in our approach to litigation so that you really distil very clearly what the issues worth fighting for are and move much further away from the 'boil the ocean approach'," she says.
With cost recovery in litigation so difficult, such an approach could soften the financial blow for clients and prevent them incurring further costs in order to recover costs, as often happens.
Hay, who previously worked at Freehills, says that almost everyone she works with at Griffith Hack has come out of a top-tier firm.
Not only does the specialist firm benefit from having lawyers with "big firm" experience and training, it also reaps the rewards of having a "pure IP" focus, according to Hay. But it also comes down to the individual lawyer, how well they present evidence in court and how well respected they are as an expert, says Garnett.
"This sort of work has an element of reputation, and regardless of how good your firm's reputation is, if the individual doesn't have the CV to back that up it's not going to get any traction," he says.
"You may know all about smoke detection, CO2 sequestration, a particular medical device - and it's exhilarating"
Kate Hay, Senior Associate, Griffith Hack
Garnett's technical background, including 14 years' experience as a qualified forensic technology detective with the Queensland Police, certainly helps him in his work. And more and more of today's IP lawyers can say the same, having science or engineering degrees.
But Hay doesn't have a technical or science background and nor does Philp.
"It all depends on how closely you work with your patent attorneys and subject matter experts. We have patent attorneys with technical backgrounds and they bring that expertise into the mix...in some cases it's a definite advantage but the flipside is we're doing the lawyering and it's the stitching of that all together," says Hay.
A little bit about a lot
For the myriad technicalities there are to decipher in IP cases, and for all the complications that arise in multi-jurisdictional cases, this is what IP lawyers love most about their job.
"Every day is different," says Garnett. "I like the fact that we need to keep up with the technology. It's always interesting to find out the new wonderful ways that someone has tried to steal information," he says.
"It's also good to see organisations that turn the corner and go from somewhere that is very easy to take information from, to somewhere that learns from its mistakes and tightens up its own systems."
Mary Padbury, the chair of Blake Dawson and an IP lawyer of thirty years, agrees, and says the best thing about being an IP lawyer is that "you can know a little bit about everything and nothing about anything".
"You get to dip into all different sectors and deal a lot with non-lawyers, scientists and commercial people who are focused on the market, which I think is fun and quite broadening," she says.
"I worked with a lovely Italian inventor for five years, and with a client in Sweden. I've been to the mid-west US and a lot of places you wouldn't otherwise visit, so I think it's a great area of practice - possibly a good one for people who are not natural lawyers."
Hay, who has worked on everything from anti-cancer drugs to "the magic of the post-it note", agrees.
"You may know all about smoke detection, CO2 sequestration, a particular medical device - and it's exhilarating. It sort of feeds into that natural curiosity that I think we have," she says.
"The spectrum is enormous and you look at those technologies and think, 'Gosh imagine life without this'."
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