Practicing Intellectual Property Law in the Information Age

André Costa Belfort

(note: this article was written with the Brazilian legal system in mind. Details might vary in different countries)

The digital revolution marked the end of the industrial age and the beginning of the information age. However, most Intellectual Property Rights systems were thought of and designed precisely for the industrial age. How, than, can one practice law for information age companies in matters linked to a typical industrial age system? Even though each case is unique, we will try to pose some suggestions which might help the struggling lawyer (and his client) to survive in such a dynamic market.

The priority must always be your clients’ needs

When faced with a highly bureaucratic system – such as patents and trademarks – it is very tempting to try and adjust reality to law. When we give in to this temptation, we tend to ignore the clients’ issues, insisting that they fit in pre-built solutions which are not always adequate to their needs.

Must the client act within the boundaries of the law? Yes – always. But ‘killing’ your client so that he adheres to legal requirements, while staying blind to his needs, is not being a lawyer. Combining both things – clients’ needs and legal possibilities – is what make a good lawyer, much more than just legal knowledge.

Think beyond bureaucracy

In the industrial paradigm, it might have been feasible to wait several years for a trademark or a patent. Not good, but feasible. In the information age, any amount of time is exponentially boosted. Do not limit yourself to simple approaches such as ‘this will take this many years’, and then hiding behind public bureaucracy.

Remember that any filed requests (even if not granted) carry a series of expectations of rights. With the proper due diligence, an experienced professional can estimate risks and probabilities, to a certain extent. Do not let public inefficiency rob you of your responsability – do your job, offer properly substantiated legal opinions, and let your client know you’re taking care of him. That’s way he has a lawyer.

Remember the importance of contracts

Any law student remembers the basic requisites of contract: capable parties, lawful object, legally prescribed (or non-forbidden) form. But a contract goes well beyond that.

Designing a legal solution has two boundaries: what the client needs, what the law allows. When facing two or more parties, it’s through contracts you can structure how the relationship will develop, and what will happen within those boundaries.

It may sound like common sense, but a great number of issues could be easily avoided if the parties involved had formalized, through a contract, what seemed to be agreed upon verbally or informally.

In Intellectual Property Cases, this has an even bigger importance when dealing with Copyright. If Industrial Property (Trademarks and Patents) seems stiffed in bureaucratic structures, the system established by the current Copyright Law gives lawyers a great deal of flexibility for the designing of different contracts. Use that flexibility.

Keep risk in mind

In an industrial paradigm, it is very common for each party to try and be exempt from risk. Either great economic power, or large and expensive legal teams, may guarantee that risk realization may be deferred for many years, in judicial dealings. In the age of information, risk walks hand-in-hand with entrepreneurial activity. If a lawyer’s greatest concern is, usually, avoiding risk, the entrepreneur’s activity is managing, and leveraging, risk. And that is even more important in companies which are inserted in an extremely dynamic and innovative environment.

When dealing with Intellectual Property – which generally has a near-zero cost of reproduction – it is essential to know how to manage risk, alongside your client. Knowing when to draft and enforce an NDA (Non-Disclosure Agreement), or a contractual fine, might be crucial for the success (or failure) of your client’s business.

Develop partnerships

Another suggestion which is not specific to the information age, but is still crucial, is to develop a partnership relationship with your client. It may seem like something out of an entrepreneurial self-help book, but it is true: if you think your client’s only purpose is to annoy you and to pay you, have I got some bad news.

There’s no longer room for a distant, unpreoccupied lawyer, that only worries about his client according to his own availability, while doing minimal work. You need to understand your client’s business, and feel his success as your own – only then will you truly worry about developing the best strategies and solutions, instead of simpling offering the same answers as always.

Value your own work

One of the greatest risks in any profession is to not have your worth acknowledged. If you believe your clients do not appreciate you, it is very likely because you do not appreciate them as well. If you can identify your clients needs, take care of his intangible assets (this is Intellectual Property, after all), and be his partner, you can rest assured your value will be recognized.

Some of these tips may apply to several other areas of law. But in Intellectual Property, specially with the specific challenges posed by the field, some challenges are accentuated. In most cases, startups or highly innovative companies won’t get their Intellectual Property needs catered to with one-size-fits-all solutions. The only way to create strategies for protecting intangible assets is by knowing, and thinking like, your client.

In the information age, a lawyer can be a liability, a strategic asset, or a commodity. It is up to you to determine which one you’ll be.

About the author

André Costa Belfort has a Bachelor degree and is a Master student  in Law at Universidade Federal de Minas Gerais. He is also a specialist in Intellectual Property and Innovation by CEAJUFE / Universidade de Itaúna, a researcher at the Study Group in Economic Law (GPDE) at FDUFMG. Lawyer at Belfort & Moreira Advogados. E-mail: andrecbelfort@gmail.com