The legal profession is very much like other successful services that have enjoyed longevity - it capitalizes on a need based on a recurring problem by fixing the problem(s) or preventing its persistence or recurrence specific to one client. The legal profession with regard to intellectual property is no different. In fact, the IP legal profession has perhaps relied on this business model to an even greater degree, as the general lack of comprehension with respect to intellectual property in the business setting has resulted in the tendency of businesses to throw IP in the corner, put up fences, and send the dogs after anybody that seems to be an intruder. Lawyers have fallen into this ex-post exercise in legal services involving intellectual property because, of course, that has been the demand; supply must meet its demand, and excess supply (other services not requested) is only inventory without value. This cause-and-effect business model relied upon by IP lawyers and law firms has been easy going - IP assets have been viewed as a necessary cost center which deserves a litigation budget to protect their prohibitive nature, i.e. monopoly power. IP lawyers have gotten very good at protecting IP, sending cease and desist letters, prosecuting patents and trademarks, drafting non-competes and confidentiality agreements, and taking other ex-post or preventative measures. This business model has not met its demise, as the demand for ex-post legal services will always exist. Note, however, that IP litigation decreased by 11% in 2009 as compared with 2008. A shift in IP legal services has begun.
Enter the decade of ex-ante IP legal services. It is, after all, the decade of the intangible asset, and with this proclamation comes the announcement that strategic IP management services will become just as coveted as IP protection and prosecution. Indeed, the space is not uninhabited. I am fully aware that IP management and consulting businesses occupy the area. Nevertheless, IP lawyers will soon recognize the opportunity to move into this space. See Morrison & Foerster’s collaboration with IP consulting firm Ovidian Group, LLC. See Robins, Kaplan, Miller & Ciresi’s new IP practice group focused on value creation (as opposed to value protection). The movement has begun, and it will continue. As executives continue to realize the importance of strategic IP management and the value-added approach to intellectual property, the demand for ex-ante IP legal services will rise. Why won’t they just go to IP consulting firms? The relationship between IP lawyers and business executives have already been formed. IP lawyers are very capable of offering strategic IP management services. In addition, there is no way to completely separate intellectual property from its legal elements. Intellectual property exists if and to the extent it is recognized by law, and as a result there are no better persons to manage IP than those familiar with the very laws that give rise to the rights to be managed. This does not mean non-lawyer IP professionals aren’t just as capable, it just means IP legal professionals will soon move into this space.
Examples are increasingly abundant — See Ellen Stiefler, founder of Stiefler Law Group, PC and a friend of mine (and the first lawyer to take the domain name intellectualpropertystrategist.com - great foresight indeed, Ellen). See Jackie Hutter of The Hutter Group, LLC, a patent attorney-turned-IP business strategist that truly understands the link between patents and business value. The background and legal practices of each of these accomplished professionals could not be more different (one is a patent agent, the other is not), yet they both understand that ex-ante legal services provide value for their entrepreneurial and innovative clients, instead of only providing ex-post problem-solving services.
The new decade has begun, and it has already been designated the decade of IA (intangible assets) - per the IAFS discussion last Friday - whereas the 90’s was the decade of IT and the 00’s was the decade of IP. The shift will be reflected in the legal profession, where strategy will become just as coveted as problem solving.