A flippant response to the above question might be: "Why do patent attorneys and solicitors seek counsel's opinion, instruct barristers to draft complex legal instruments or brief them to represent them before the courts or hearing officers on behalf of their clients?" The obvious answer is that barristers can do some of those things better than other legal professionals can. That is not because barristers are brighter or more knowledgeable than other IP professionals but because we have two important advantages.
The first is that we know the judges who make the law. We know how they think which enables us to guess how they would analyse an issue that has not come in front of the courts before. We gain that knowledge by arguing against them when they are at the bar and before them when they reach the bench. Anybody can look up a statute or the case law which will describe the law as it stands today but only a specialist advocate can forecast accurately how the law will develop tomorrow.
Our other advantage is that we tend to be called in only after things have gone wrong. Through such experience, we learn how disputes or other difficulties arise and what could have been done to avoid them. That experience also enables us to flag up potential difficulties before they arise and to suggest steps to avoid them. That is why barristers are instructed to draft contracts and other legal instruments for use in business, particularly in new situations involving new technologies or new business situations.
Until 2004 our expertise could be accessed only if a solicitor, patent attorney or other professional intermediary instructed us. Since then, it has been possible for businesses or individuals in the UK to instruct us directly. That does not mean that we now do patent attorneys' or solicitors' work. We remain a referral or specialist profession, but there is no longer a need to instruct an intermediary just to instruct us. Also, if we believe that it is our client's interests to instruct some other legal professional, we are under a professional duty to say so.
That leads to yet another advantage. We see a lot of patent agents, solicitors and other legal professionals in the course of our work and are thus in a unique position to judge their relative strengths and weaknesses. We can, therefore, help members of the public who require the services of such an intermediary to identify one who will best suit their needs.
We can now be a point of entry to the legal services industry. Often the best time to instruct us is early in the life of a new business or the development of a new product because we can help with the formulation of an IP strategy, suggest the optimum legal protection for an intellectual asset and build a team of IP professionals. I have listed some of the services that I offer on the Services page of this blog and you will find others on the equivalent page of my NIPC Law blog. Details of how to instruct me appear on the Instruct Me page.
If you want to discuss this article with me or you have a specific matter upon which you require some help, call me on +44 (0)20 7404 5252 or send me a message through my contact form.