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Weekly take: IP juniors’ chance at first-team action long overdue

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Amendments to the Patents Court Guide are a welcome step, but we must ensure everyone is on side

I don’t need much of an excuse to talk about football. Sadly, it’s very rare that writing about intellectual property for a living allows me to do it.

But I’ve always found it slightly annoying how teams will only bring their junior players on for games deemed less important, or when a match has already been won.

How is new talent supposed to develop if their only chance to shine is a brief appearance in the last five minutes of a game or at an away fixture at a non-league ground in front of 200 fans?

Granted, I support Sheffield Wednesday so the idea of a match being won and glimpsing our juniors is something of an alien concept.

Now that my obligatory Sheffield Wednesday reference is out the way, I’ll return to IP.

First-team action

In the England and Wales High Court, a welcome initiative has been agreed aimed at giving junior barristers and advocates more of a chance at, shall we say, ‘first-team’ action.

There are now clear examples in writing of where use of a junior advocate should be encouraged in proceedings to avoid cases being dominated by a King’s counsel (KC) and senior advocates.

Sorry UK readers, a brief explainer for everyone else. KC is a special title given to barristers who have demonstrated excellence (but who must apply for the status). Barristers who become silks (a nickname for KCs) benefit from enhanced reputations and can typically charge more for their services than their ‘junior’ colleagues.

The aforementioned changes come in the form of amendments to the Patents Court Guide, which sets out guidance for litigants. Managing IP exclusively reported that changes were in the pipeline last year and a full report on those changes will be published shortly.

There has been concern in the profession for some time over the muted role of juniors in proceedings, with most case management and advocacy being handled by KCs.

Julian Flaux, chancellor of the England and Wales High Court, expressed his concern in January last year that junior barristers were being sidelined.

The move for more opportunities for juniors was spearheaded by the London branch of ChIPs (chiefs in IP), a professional organisation that advances and connects women in technology, law and policy. ChIPs been pushing for changes since 2018.

A representative of the group told me recently that juniors’ traditional appearances in court (until now, we hope) tended to be to “argue the bad points” – i.e. get the experience of being in court but at no risk.

The serious stuff is reserved for the trusted KC. Usually white, usually male, often greying around the edges.

This is plainly stupid for several reasons, not least because in many cases a junior will have a significant hand in preparing the entire grounds of a case – not just the ‘bad’ points that the client wants to run.

But also, because many juniors themselves are incredibly capable, able and experienced; they just aren’t being given the chances.

Giving juniors the responsibility to argue points and manage hearings – the guide recommends handing juniors responsibility for entire parts of a case such as interim applications or disclosure issues – is clearly a sensible way forward.

Client backing

My only concern lies in one area: the client. They are the ones with the money, with something to lose and the ones who take the risks.

I’m not suggesting for a minute that using juniors more frequently poses a risk, but it will be important for legal teams to ensure their clients do not view it that way.

Unconscious bias, whether we like it or not, exists and some IP owners may wince at the idea of letting a junior, a woman or a non-white greying male manage parts of their cases.

It will be down to legal teams, the counsel themselves and judges to educate them and ensure everyone is on board.

I’m told all judges, including the head of the patents court Mr Justice Richard Meade and the Court of Appeal judge Lord Justice Richard Arnold, are fully behind the idea.

They too, of course, were white, male, greying KCs (the only change being their elevated roles as judges).

If they have faith in our juniors, so should all of us.

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