“We need to see more straight white males on panels to get involved in these issues,” said one speaker at a diversity-focused seminar at Managing IP’s International Patent Forum this week.
This assertion may seem incongruous in a discussion on how to improve diversity and inclusion (D&I) in the IP profession.
However, the idea of encouraging the contributions of people who fit into this category – and who occupy the majority of senior roles – is one that is gaining traction.
“D&I is for everybody,” said Parminder Lally, a senior associate at Appleyard Lees in the UK, who led yesterday’s discussion, in which all panellists were speaking in a personal capacity.
“Often, it is only women or ethnic minorities who are invited to speak about diversity.
“Panels that are not completely diverse can sometimes exacerbate a notion that D&I is something that only affects or is interesting to certain people,” Lally said.
She added: “We need straight white men on panels to get involved in these issues – they are the biggest group, so we should focus on how to get them involved.”
Fellow panellists Bobby Mukherjee, chief IP counsel at BAE Systems in the UK, and Deanna Kwong, senior IP litigation counsel at Hewlett Packard Enterprise (HPE) in the US, backed Lally’s view.
Kwong said everyone needs to do their part and that this “does include straight white men”.
The legal department at HPE has rolled out a video education series that has white males as the face of each video, she added.
Giving people the tools and power to hold these discussions is important, said Kwong.
This can be done even in the context of an informal group call: “If a senior leader is a white man, they can make sure that they make a point of talking to diverse members of the team, even if it is just asking how their day has been.
“Getting to know someone as a person, rather than merely as a colleague, is important. It sounds minimal but it fosters an environment of collaboration and allyship. These are the small things that can be done on a daily basis.”
Mukherjee at BAE said that as he is not a white man, it is difficult for him to make suggestions on how they can become more involved. He noted, though, that in his 25 years in the profession he has worked with white men and women who are passionate about D&I.
“We are all in it together, whatever our background or beliefs. I do agree that it is important to get the majority involved,” he added.
He pointed out that in the US, BAE is a member of an organisation called White Men as Full Diversity Partners, and that the company is looking at joining similar initiatives in the UK.
Kwong at HPE suggested exercises where everyone sits next to or talks to someone they do not normally interact with could help. Finding points of commonality can also lead to business-related breakthroughs as individuals who did not realise they could support each other professionally can connect, she said.
Mukherjee added that tackling subconscious bias is one of the most important steps.
“We tend to gravitate towards people like ourselves,” he noted, adding that subconscious bias can also stretch to beauty bias, attribution bias and the ‘halo effect’, where you assume everything is good about someone because you like them as a person.
Question of quotas
The panellists also discussed demands made by Coca-Cola, which last month said it wanted at least 30% of billed lawyers from its external counsel network to be from diverse backgrounds.
Kwong said she believes it is necessary for corporations to impose some kind of requirement on their suppliers and those they engage.
“It’s incumbent on clients to drive forward D&I as a way to get outside counsel to accelerate their focus on it.”
Mukherjee said he welcomed the move by Coca-Cola but that other corporations that make these demands must also get their own houses in order first, though he stressed that he was not commenting on Coca-Cola when he made this assertion.
Lally, however, said she is less sure about diversity quotas.
“I sometimes suffer from imposter syndrome and could never be sure if I got something because of my own skills, or because there was a quota to fill or a box-ticking exercise,” she said.
She also warned of the dangers of “fudging numbers”. Many organisations, for example, report a roughly equal split in terms of gender. However, if you analyse the individual roles, women tend to be further down ranks, she noted.
“If they are trying to meet demands from clients, there is a risk that data could be skewed and work could be falsely attributed to diverse team members,” she added.
Mukherjee at BAE said this will ultimately boil down to trust and relationships.
Addressing D&I as a whole, Kwong at HPE said organisations should focus on progress, not perfection. “Mistakes can be made; what is important is having honest dialogue in a safe space.”
Elsewhere at the patent forum, panellists discussed international litigation strategies and how IP owners are responding to demands caused by the COVID-19 pandemic.
In a session focused on international litigation – primarily in fair, reasonable, and non-discriminatory (FRAND) cases – panellists speculated whether alternative dispute resolution (ADR) might be an effective way to resolve the spate of disputes in this sector.
In recent months, there has been a trend of anti-anti-suit injunctions. The goal of these proceedings is to get a court in one country to stop the infringement proceedings of a company in an anti-suit injunction in another country.
Panellists suggested there is no end in sight for how many ‘anti’ suits we may see in one case.
Roberto Dini, founder of IP licensing company Sisvel in Italy, said there is a danger that this is running “too far away” from being an efficient way of resolving disputes.
“Courts should invite people to find solutions through ADR such as arbitration,” he suggested.
Arbitration could be important, he added, as any result would be applied globally. John Sideris, principal licensing counsel at Philips in France, said this could be a solution but only if all parties agreed.
Sideris said there is now a steady increase in these types of disputes, which are beginning to come to light every few months in some jurisdictions.
“It’s come to the point where some companies will file a patent infringement suit and then file a separate injunction to prevent the defendant from trying to get their own anti-suit injunction,” he added.
Shohta Ueno, director of dispute resolution at Regeneron Pharmaceuticals in the UK, said FRAND is not a huge issue in the life sciences sector.
Fellow pharma specialist Sara Burghart, lead IP litigation counsel at Sandoz in Munich, moved on to discuss preliminary injunctions.
She noted that when seeking such injunctions, a key question is whether one can be issued without first hearing from the respondent (ex parte), or if the respondent should be given a chance to respond (inter parte).
In Germany, prior to a Federal Constitutional Court decision in 2018, it was common for companies to be granted ex parte preliminary injunctions. However, since that ruling, it is much more likely that the defendant will have a chance to submit a defence, she noted.
National courts also differ in how much weight they attach to foreign rulings, Burghart added.
In Sweden, for example, courts are not so interested in foreign decisions, but a decision to invalidate a patent in Germany or the UK will have an impact on proceedings in Spain or the Netherlands.
No conference can go by without directly addressing why panellists were all speaking to each other online.
Speaking in a personal capacity, counsel at multinational conglomerate Honeywell and health and hygiene company Essity discussed how their strategies have adapted during the COVID-19 pandemic.
Maria Mellgren, IP director for incontinence care at Essity in Sweden, said the first notable change to everyday business was brought on by the toilet paper crisis in spring last year.
Essity, she said, became briefly tasked with maintaining an essential supply for production.
She added that the Swedish government asked the company for support with face masks. “Part of the team that produced baby nappies was drafted in to produce face masks using the material they already had.”
She noted that the pandemic has caused businesses to become highly competitive, with many companies interested in launching similar products to Essity’s. “You have to watch out for how competitors attempt to ride on a brand, and ensure that you have the right IP to protect that.”
She added: “It’s not only about protecting what we want but also about the second best solution so we can be in a safe zone. Projects that normally take years to manage were squeezed down into a few weeks or months,” she added.
Quality, not quantity
Jason Skinder, chief IP counsel at Honeywell in the US, said he joined the company in January 2020, just before the pandemic-induced shutdown.
He said that managing an IP portfolio through a crisis should boil down to one word – “relevance.”
“IP protection should be relevant to our business and our competitors’ business. Anything not ‘relevant’ should be discarded,” he told the forum.
He said some companies pursue a “quantity over quality” strategy and build up huge portfolios in the hope that size will win the day. “The experience is that this is not true,” he said.
He noted that in the Apple v Samsung smartphone wars, Apple – despite having fewer patents than Samsung – enjoyed a “better hit rate” in terms of patent actions.
He added: “The traditional metrics of patent filings and portfolio numbers are antiquated. Our approach is to develop an internal ranking scheme so we understand the value of our assets and show the business that we have a highly valuable portfolio. It may be small, but it has relevance.”
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