The decision to take this leap into the unknown has been surprisingly thrilling and liberating. People keep telling me that I look like a weight has been lifted from my shoulders! I recognise now that the main things that had been holding me back for some time were, firstly, concern for the clients I have worked with over many years (unquestionably a good reason) and, secondly, fear, particularly of the possible financial consequences (which I have come to realise was a pretty bad reason – indeed, little more than a poor excuse).
I have endeavoured to inform clients personally of my decision, and to assure them all that they remain in good hands with Watermark. I joined Watermark when I entered the profession, and I stayed for nearly 14 years, which is far and away the longest I have worked for any one employer. If I became good at my job, much of the credit must go to the many experienced, talented and supportive colleagues I worked with over the years. That team is still there, and will continue to be there, for all of the firm’s clients, even as individual staff members come and go.
However, if you are a client who, for whatever reason, I have not contacted, and this is how you are finding out – I sincerely apologise! It has just not been possible to contact personally every client I have worked with over the years and there will, inevitably, be some who will only discover that I am gone the next time (should there be one) they try to get in touch.
I am not off to work for another firm of patent and trade marks attorneys, nor do I have any plans to set up my own patent attorney practice. For most practical purposes, therefore, I am ceasing work as a patent attorney, at least insofar as the title is conventionally applied to a provider of patent application drafting, filing, prosecution, challenging (e.g. opposition), validity, infringement and related services. This is not to say that I will not maintain my Australian registration, or that I will never again engage in any of these tasks. But... who knows?
So, why have I made this decision?
First, The Good...Before I explain why I quit, and lest I give the impression that being a patent attorney is the worst job in the world, I want to say a few words about why I did not quit for 14 years. There are a lot of things to love about the job, and I did love it a lot of the time, even as I bore the stresses that it imposes.
I have had the privilege to work with just so many incredible people. This includes my colleagues at Watermark, of course, but also the many clients, inventors, researchers, foreign attorneys, investors, advisors, and even the opposing attorneys and counsel that I have come up against.
I have learnt so much, not only about patent law and practice in Australia and internationally, but also about the many fascinating and exciting technologies that clients have developed. One of the truly great things about being a patent attorney is that you can never run out of new things to learn.
I have relished the opportunities to go into bat for my clients. Whether this has been through advocacy and argument in oral hearings and written submissions, or through negotiation with counterparties or patent examiners, working to obtain the best available outcome for a client has been one of the great motivations in my time as a patent attorney.
On many occasions I have been able to assist clients in achieving positive outcomes that add real value to their businesses. This is enormously satisfying, even though it has to be weighed against the times when things do not go as planned or hoped – I have also learned to accept the reality that not every case is a winner, though I care too much about my clients not to feel bad when I have to deliver disappointing news.
I will miss these aspects of the job, and many other little day-to-day joys that come from working with smart, talented and creative people. But in light of changes in the law and in the profession generally, as well as the less positive aspects of the job, the time has come for me to call it a day.
The Law is ShiftingMy technical background is in electronic engineering, digital systems, telecommunications and software. Of these technologies, I hardly need to point out that one of the areas of greatest innovation in the 21st century is in software, i.e. in inventions that are implemented wholly or in-part via programming of microprocessors and larger computing systems. Consequently, the great majority of my practice as a patent attorney has ended up in this area.
You might have thought that the patent system, which has the objective of rewarding and encouraging investment in innovation and invention, would have embraced computer-implemented technologies enthusiastically. However, over the past few years exactly the opposite has occurred. The US Supreme Court issued a decision, in Alice, that has (perhaps unintentionally) granted US patent examiners and the lower courts effective carte blanche to reject claims to any computer-implemented invention they do not like the look or smell of. In around 2010, IP Australia decided that it was time to crack down on claims directed to certain computer-implemented business methods, and created a monster that ultimately resulted in the decision of a Full Bench of the Federal Court of Australia in the RPL Central case and similarly rendered a broader range of subject matter effectively unpatentable. More recently, the Australian Government’s Productivity Commission published a draft report in its enquiry into Intellectual Property Arrangements which contained a recommendation ‘to explicitly exclude business methods and software from being patentable subject matter’ in Australia.
Do I think that all computer-implemented innovations should be patentable? No. Are there still many software-based inventions that remain patentable despite the recent developments? Yes, of course there are. Do I think that the pendulum has swung too far against patent-eligibility in the US and Australia? Well, yes, I do. But what I think about all this is not really the issue right now.
The fact is that, rightly or wrongly, the law has shifted, and as a result the nature and value of advice that I provide to clients in the software space has changed as a result. I simply cannot add value to businesses in this area that I could when the boundaries of patent-eligibility were clearer and more stable. Whether I think it should be this way or not, the end result is still that my skills, knowledge and experience are now under-utilised as a patent attorney. Aside from anything else, this is highly demotivating, and I have come to believe that my talents might be put to better use elsewhere.
Or, to put it more bluntly, what is the point of me if the things I do best are of limited value to clients?
The World – and the Profession – Is ChangingThe patent attorney profession, like many others, is facing significant challenges in the face of a rapidly changing national and international business environment. Just one consequence of this is a consolidation of firms in the Australian market, combined with new strategies to raise capital for growth and innovation. There are now three public companies listed on the Australian Securities Exchange that collectively hold (or will soon hold) seven IP firms. IPH Ltd (ASX:IPX) owns Spruson & Ferguson, Fisher Adams Kelly Callinans (itself the result of a merger of two firms) and Pizzeys. Xenith IP Group Ltd (ASX:XIP) owns Shelston IP and is in the process of acquiring my soon-to-be-former employer Watermark. The latest entrant is QANTM Intellectual Property Ltd (ASX:QIP), which was formed to acquire both Davies Collison Cave and FPA (formerly Freehills Patent Attorneys).
Time will tell whether these strategies are the right ones to tackle the challenges ahead. The question for me, however, is do I, at this point in my life and in view of my own personal goals and interests, want to be a part of it?
My answer is ‘no’, although of course I wish all of those bravely embarking on this voyage into the (relatively) unknown all the very best!
You Can’t Micromanage CreativityBeing a patent attorney is a tough gig. I mean, it is obviously not as tough as being an emergency services first-responder, or a war correspondent, or President of the United States of America, or any number of other stressful but noble callings. But as jobs in the so-called ‘professions’ go, it is right up there. I am not at all surprised that a 2007 survey [PDF, 264kB] conducted by Beaton Consulting and beyondblue found that, within the professions covered, patent attorneys were second only to lawyers in reported levels of depression. The proportion of patent attorneys reporting ‘moderate or severe depressive symptoms’ was 13%, or around twice the level in the general population.
If you are not a patent attorney, you are probably wondering what it is about the job that is so taxing. Quite a lot, actually – not least bearing the burden of responsibility for clients’ IP rights. But a big one for many people coming into the profession – and certainly for me – is that giant monkey on your back, the ‘billable hour’.
For all the talk of alternative charging models (just do a web search for ‘alternatives to the billable hour’) this remains the primary mechanism to account for an attorney’s time, and to measure their (that is to say, my) performance. Even if the client is being billed on some alternative basis, odds are that the attorney is still recording hours for internal accounting purposes. Indeed, anything that uncouples attorney time from charges billed can make the situation worse, given the risk that the attorney’s ‘cost’ to the business (i.e. hours worked) may exceed the associated value (i.e. what the client pays).
More pertinent, to me at least, is that the billable hour does not sit comfortably with creativity. I like to have time to think, to experiment with ideas, to look at a problem from different perspectives, and to research new technologies and approaches for solving problems. This is a big part of what made me a good engineer, a good researcher, and (I like to think) a good patent attorney. It is why I write this blog. I am constantly learning. I am going to be 50 in a couple of years, and one thing I know for sure is that while I have learnt quite a lot about some things, I still know very little about most things. I never intend to stop learning, or writing about it.
Of course, this is not necessarily incompatible with the billable hour. There is nothing to say that you cannot spend time on things for which you cannot charge the client (even if the client benefits from your newly-acquired skills and knowledge). However, as someone whose mind works this way, the constant requirement for time-tracking, for accounting for all my activities, for doing the job as I believe it should be done while meeting the targets I am obliged to meet, is not merely an annoyance, it is a burden.
You cannot micromanage creativity or innovation. Yet that is precisely what the billable hour seeks to do. The irony is, of course, that it is the very essence of a patent attorney’s role to work side-by-side with creative, innovative people and businesses. The best patent attorneys are motivated by interest in clients’ ideas, innovations and business objectives, not by what they can charge for every six-minute period spent with a client.
In summary, the billable hour sucks. Hard.
Deadlines, Deadlines Everywhere!As an undergraduate engineering student, I thought I knew what a deadline was, e.g. the due date for an assignment, or the date of the final exam.
As a postgraduate student and as a researcher, I thought I knew what a deadline was, e.g. conference submission dates, or grant application due dates.
As a lecturer, I thought I knew what a deadline was, e.g. the due date for the course outline for publication in the handbook, the date for exam approval and submission, or the date for course materials to be ready for distribution to students.
Working in software development, I thought I knew what a deadline was, e.g. major release dates, minor release dates, or ‘code freeze’.
The truth is that until I became a patent attorney, I had no idea what a deadline is. Do you know what happens if your assignment is a couple of days late, or you miss a conference submission deadline, or your exam paper is not quite ready on time, or a software release date slips? Nothing. Or, at least, nothing too bad.
Do you know what happens if you miss a filing deadline in Japan? Your client’s rights lapse. Irrevocably. Call your professional indemnity insurers, because you are going to need them! Fortunately, not every country is as unforgiving as Japan, but the reality is that if you stuff up as a patent attorney, even once in your entire career, it may cost you dearly, whether it be in time, money, or overbearing anxiety and stress.
I could not tell you how many patent applications and other matters I have managed over the years. It would be at least in the hundreds, and possibly over a thousand. Each one spanned many months or years, and involved multiple critical deadlines along the way. As a patent attorney there is no such thing as a week without at least one hard deadline. How many time in 14 years did I suffer the literally nausea-inducing experience of nearly stuffing something up, or actually having to scrabble to recover from an error or omission resulting in a missed deadline? I can think of about half a dozen, which is not too bad in the scheme of things. However, as I walk away I am relieved to be able to say that a case never inadvertently and irretrievably lapsed under my care.
Here is where I need to give a great big shout-out to IP Australia. One of the major Raising the Bar law reforms back in 2013 was designed to force oppositions to run more efficiently by making it more difficult to obtain extensions of time to prepare and file evidence. As a result we went from a system in which it was almost impossible for the Patent Office to deny an extension to one in which extensions are granted only in circumstances of ‘genuine’ need. As a patent attorney managing an opposition it is now necessary to keep everything on-track continuously, or risk losing the case for your client. It does not matter what else is happening in your life, how much work you have on your plate, or how many other deadlines you may have to meet, none of these is an excuse for not getting your opposition evidence in on time. All that matters is your diligence in progressing the evidence for that one opposition.
So thank you for that, IP Australia. Thank you for adding to the stress and anxiety experienced by all patent attorneys. And thank you for giving me another reason for wanting to get off the treadmill.
In summary, patent-related deadlines suck. Really. Hard.
ConclusionI have worked a few different jobs in my life, in some quite different environments. It goes without saying that conducting research and teaching at the world’s number 33 ranked university is a very different experience from working in a software startup, or providing professional services. I am not naïve – I know well that all jobs have their pros and cons, and to expect perfection and happiness every day is completely unrealistic. I have worked nearly 14 years with the advantages and disadvantages of being a patent attorney at Watermark, and for the vast majority of that time the pros have outweighed the cons.
For me, however, that is no longer the case. For a number of reasons, but in large part due to the shift in treatment of computer-implemented subject matter, I do not obtain the satisfaction that I once did, or feel that I can add as much value for clients. Changes in the profession more generally seem to be heading in a direction that does not inspire or excite me. And so the day-to-day stresses of responsibility and deadlines, and the drudgery of time-tracking and other administration, are no longer adequately compensated by beneficial aspects of the job.
So I am moving on. What to, I do not know, but I hope it will be something that allows me to do more of the kinds of things that I have loved about my job over the past 14 years, with fewer of the things that have come to weigh me down.