Tuesday, 24 May 2011

The Hargreaves Review in Detail: sources of advice for SMEs

The Hargreaves Review recommended that the IPO draw up plans to improve the accessibility to the IP system to "smaller firms who will benefit from it". Does that mean that it will remain closed to those who won't benefit, or that a benefit will flow pretty well automatically? Well, OK, I think I know, but this Report is not written in the sort of clear unambiguous English that should be employed. A thought crossed my mind yesterday about the problems of getting a professor of journalism to write a report - but I decided I'd better not express it publicly.

It also recommends that this should include access to lower cost providers of IP and commercial advice. Lower cost than what? A magic circle firm's hourly rates? I work for lower rates than that - frequently for very low rates - but the clients are not beating a path to my door ... The Daily Telegraph picks up on this today, or rather picks up on the comments of a small firms lobbying organisation - "lobbynomics" again? No, not in this case - saying that the Intellectual Property Office isn't actually qualified to do this. The Review does mention this as a possibility but more in the way of reporting what respondents asked for - it isn't included in the recommendation.

Two important points spring to mind here. First, solicitors are business advisers in a way that the Review doesn't seem to have looked into. Of course there are many who'll confine themselves to advising on the law, but a good solicitor will give that advice in the context of the client's business. They will be well able to talk to the client about protection, strategy, licensing - all the things that Hargreaves seems to find lacking. And while some will rack up the fees, many will give initial advice free of charge - some will even have the flexibility to defer charging (something I have done recently, in a small way, for a couple of start-up clients), even to consider taking an equity stake in the business perhaps - certainly something I'd happily have done had I been a sole practitioner. the problem is that small businesses - the very ones that need the advice - are frightened about pursuing it.

What is needed - what fits with Hargreaves's recommendation - is clinics at which small businesses can have a short initial free-of-charge consultation with a professional adviser - exactly what my friend Jane Lambert of NIPC has been doing in what she insists on calling the North, but which lies south of the Tees - well, I suppose everything's relative - and indeed elsewhere. This is how the professions should be reaching out to clients, and to be fair many of them are doing so.

A second point arises out of the IPO's credentials for providing advice. They know their way around the patents system, and the trade marks one and the registered designs one, though I suspect (and would be interested to find out for sure) that an examiner would be too specialised to talk in general terms about a business's IP needs. Do they ever move from one discipline to another in the IPO? And wouldn't any advice they gave tend towards extolling the benefits of getting patents, trade marks, registered designs? Would they be impartial enough?

There's a widespread tendency to equate patenting activity and innovation. The number of patents filed is a potential guide to the amount of innovation going on, although it would be skewed by businesses filing myriad patents to create minefields - the sort of thing deprecated by Hargreaves as "patent thickets" though what he calls a thicket isn't exactly what we meant by the expression before he redefined it. A patent is not a ticket to prosperity, and a lot of money can be wasted on them (as Jane Lambert described in her book “Enforcing Intellectual Property Rights: A Guide for Businesses and Creative Individuals” Gower 2009). Would setting up the IPO as a source of advice risk this happening? Anyway, I am already concerned by the way the IPO spends public money (not, I guess, taxpayers' money, because it's a trading fund so it makes its own money) in competition, to a degree, with private practioners - who are, of course, taxpayers ... Not to mention the way they trivialise everything with Wallace and Gromit. But so long as their activities are constrained they should help to raise awareness and create work for the professions - that should certainly be the goal - and it's from the professions that the advice should come.

Now, setting up a sort of legal aid fund to enable small businesses to get the advice they need, and to fight the IP bullies who they will inevitably have to deal with, that's another matter.

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