Trevor Cook is the winner of the patents lawyer of the year award for the sixth consecutive year. The London based lawyer is one of the best-known names in the IP legal market and has been working in this area for over thirty years at Bird & Bird LLP – the winner of three IP related practice area awards this year. He leads an active practice in patent litigation and is the secretary to the British Copyright Council Standing Committee on Copyright and Technology and a member of the council of the Intellectual Property Institute. In a special Q&A he discusses his career and how the industry has changed.
Why did you originally decide to specialise in intellectual property litigation work? With your degree in chemistry was pharmaceutical and biotechnology IP the obvious choice?
Well, my getting into this area was very much by accident. Like most students who go to university I realised once I was among my peers that I wasn’t as good at my chosen subject as I had thought I was going to be, so I recognised that any worthwhile career would have to lie elsewhere. Whilst there I got heavily involved in the student union, initially on the technical services side, but in my final year, almost by accident, I found myself as treasurer of this highly political body (it was the 1970s), responsible for a surprisingly large amount of public money of a charitable nature, having to seek legal advice on what we could spend this on and, more importantly, what we could not because to do would constitute ultra vires spending. This was my first exposure to the law; a new area that I wished to explore further, and that is how I got interested in the law. I didn’t specialise straight away; I did my articles (now called a training contract) at my present firm, Bird& Bird. The articles took a traditional form and so didn’t include intellectual property (although I did get drafted in to help out in one such case), and after I finished those I joined the IP department and I have been here ever since.
What do you enjoy most about working in this area?
I enjoy all aspects of IP. Increasingly patents have become the major part of my practice, but I retain an active interest in the whole field of IP, and try to resist specialisation within it. In patents, apart from the constant intellectual challenge that the ever developing law presents, there is also the fun of getting stuck deeply into a new technical area with each new case and meeting and working alongside some of the real experts in that area.
How would you summarise an IP litigator’s role?
An IP litigator is obviously tasked with achieving the best results for the client. But the problem that they often face with many IP disputes, and especially patent ones, is that most are by their nature potentially multi-jurisdictional. If one has lawyers in more than one jurisdiction then each will have their own ideas of how best to present their case and especially what they do not want another to argue in his or her own jurisdiction because of its effect on the first one, meaning that it may not always be possible to present the optimum case for a particular jurisdiction as one's hands are tied by other jurisdictions. So a lot of liaison and internal negotiation is required in such cases to develop the best overall strategy.
What was your first case at Bird & Bird and what did you take away from it that stayed with you throughout your career?
The first patent case for which I had full responsibility was Societe Nouvelle des Bennes Saphem v. Edbro Limited which reached the Court of Appeal in 1987. It was a mechanical patent case about a pivoting L shaped arm on the back of a lorry (you still see it around today) that was used both to empty and also to lift and deposit big rubbish containers. We lost at first instance, but succeeded on appeal. That was particularly satisfying as the clients were a very small French company who could hardly afford to lose, who were matched against a larger English company, and took some convincing (some of it in French) to appeal. It was also a case in which a considerable narrowing of issues was achieved by the use of statements of case, which was most unusual for the time, and in which a demonstrative physical model of the L shaped arm, which I had argued for and had got built, played a critical role in explaining what was actually going on when the machinery was in use.
What have been the highlights of your career so far?
That is a tricky question for a litigator as it rather invites one to chose among one's public successes, which can be deceptive in terms of where one may feel one has done one's best work or what one feels has benefitted the client the most. Well, it’s certainly not much fun to lose. But, even losses may forge great relationships among the members of the team and can sometimes involve their own little triumphs. In one case, which many said (correctly, as it transpired) was unwinnable, the success lay in getting so many courts to look at it and to disagree among themselves in their reasons for finding against us. It was hardly on its face much of a triumph but it bought the client invaluable time. I don’t like to focus too much on the highlights to date as I look for there to be more in the future.
Recent reforms to the patent county courts in the UK will convert them into IP county courts in order to cover more IP disputes and reduce the cost of patent litigation. Do you think the reforms will succeed in improving access for individuals and companies in the long term?
I think it is an excellent reform. I have supported it throughout. Converting the default position from automatic disclosure and few real limits on the amount of evidence to one where these and other matters must be requested and justified should make a tremendous difference to the cost of those cases, and there are many of them, for which a limited approach to such matters is appropriate. Likewise the costs recovery cap will not only apply pressure to keep down one's own costs, but will remove that great unknown risk which individuals and SMEs rightly fear and which acts as such a disincentive either to assert their rights or to resist attempts by others asserting their rights – having to pay legal costs to the other side that prove to be out of all proportion to one's own and to the value of the dispute.
How has your law firm changed its approach towards IP litigation since you began practising over 30 years ago?
I think it is the clients that we serve that have changed the most and we have had to adapt to that. A companies’ worth used to be based on stuff you can see, stuff you can touch – tangibles. That is no longer the case. For most companies, most of their value, at least on the face of their balance sheets, lies in intangibles, which has increased the importance of protecting their IP, even though they often in practice give doing so too little thought until the time comes when they have to assert such rights.
Are companies viewing litigation as a long term investment? Do you think more emphasis is placed on selective litigation and alternative dispute resolution now?
Patent litigation, as with other litigation, remains primarily a distress purchase and it is hard to think of it as an “investment” but there is much to be gained from adopting a long term strategic approach to it, rather than simply always reacting to events. I have had the good fortune, since the early days of my career, to work with some very sophisticated in-house counsel who were able, given the importance of the matter to their company, to adopt such an approach, and in every such case the careful planning paid off in securing a favourable overall outcome, even though in some cases there were courtroom defeats along the way. But such situations remain the exception and legal budgets are no less prone to short-termism than other corporate budgets.
Increasingly, multi-jurisdictional disputes and legal developments require lawyers to have a deeper and broader working knowledge of international regulations and laws. How have client expectations of lawyers’ abilities and expertise changed over the years?
As I have said above most patent disputes are multi-jurisdictional in nature even if they do not in fact involve litigation in multiple jurisdictions. In the light of that I would say that if anything, clients do not place enough of a premium on international knowledge and sensitivities. They have faith that their lawyer can deal with things in their own jurisdiction, but do not always concern themselves enough with that lawyer’s understanding of, and interaction with, other jurisdictions, or indeed with finding a lawyer who is prepared to tell them that they should be considering proceeding in another jurisdiction in preference to that lawyer's own jurisdiction.
What qualities in a client make for the most productive relationships?
I find it easiest to work with clients with some prior experience of patent litigation. It does not help to have to explain the basics when there are so many nuances that one also needs to convey in order fully and properly to advise or enable the client to make an informed decision.
What are the biggest challenges facing the patent and IP community in the future in the next five years?
From the point of view of the patent community and industry at large, one is the great increase in patent filings and the backlog in their examination, which increases the uncertainty associated with an ever greater number of unexamined applications of uncertain potential scope. From the point of patent litigators in Europe it is likely to be the system for litigating European patents and the now envisaged European patents with unitary effect. Despite so many false dawns in the past and its apparent recent reverses, I think it will now be with us much sooner than most practitioners realise.
As a prolific legal author and contributor to legal education what advice would you give to young lawyers looking to enter IP practice? Is a scientific background or qualifications a prerequisite?
No, not at all. Some of my colleagues doing patent litigation do not have any scientific background, at least at degree level. My advice would be to focus on being a good lawyer first and foremost. Hone your research skills, your negotiation skills, your transactional skills and your litigation skills.
If you could be granted one wish to make your job easier, what would it be?
I would like people to relearn the virtues of brevity. When first I started in the law there was no email or fax, and there were typewriters rather than word processors, although we did have photocopiers. The onward march of office technology has not however necessarily improved the quality of the end product, although it has certainly increased the bulk of documentation, the length of documents, and the number of iterations through which they go before they get into their final form, all of which have costs, and sometimes considerable costs, associated with them. Twenty or so years ago I had in effect to relitigate a passing off case that had first been litigated before there were even photocopiers. The clients had preserved all the papers from the earlier case. It was amazing how short the various papers for that earlier case had been and how few of them had been required for what had at the time been a major trial. Relitigating similar issues a generation later I was conscious that, because we could do so, and because the expectations in this respect had changed, we were producing much longer submissions and statements, with very much more associated documentation, to present much the same sort of case, but to no better effect. There had been tremendous virtue in the brevity of the earlier case, even if it was enforced by the circumstances of the time. I would not want to turn back the clock on the technological developments, but if everyone recognised the virtues of brevity that would help in so much of the law.
If you were not a patent and IP lawyer, what would you be?
I have no idea. Intellectual property law has been my working life, and I can’t imagine my having done anything else