Do Israel Patent Attorneys Need a Code of Ethics?

legal-ethics

“I don’t believe in God. I do believe in Judaism. I believe in ethics, morals.” Edgar Bronfman, Sr.

On 8 September 2016, the Israel Patent Office and the Ministry of Justice Issued a Call for Comments regarding a Code of Ethics for Israel Patent Attorneys.

The deadline for responding is 26 September 2016. One presumes that no committee is going to do anything until November as, with the Jewish Festivals, there are about 5 working days in October. This combination of facts implies that the authorities do not particularly want responses from the IP industry it is proposing to regulate.

I see this as a shame. The entry-level qualifications for the patent attorney profession in Israel are a science or engineering degree and two years on-the-job training under a licensed patent attorney, exams showing drafting ability, knowledge of the Law and fluency in English and Hebrew. A very large proportion of the profession have at least one of: advanced degrees, 10 or more years of post-qualification experience, ten or more years experience in industry, a law degree, additional languages and a foreign patent attorney license. As a group, we are high achievers. Given a reasonable opportunity and encouragement to do so, I consider it likely that members of the profession could provide interesting feedback and ideas. On the bright side, the Ministry of Justice and the Patent Office did send the Call for Comments to all registered patent attorneys rather than prominently displaying a notice in a locked filing cabinet somewhere, or publishing a notice in the Tulkarem Local Advertiser.

aippiI would like to hope that it is no coincidence that the Call for Comments coincided with the most central biannual international IP conference last week in Milan. This unfortunate coincidence could explain why the esteemed Israel Patent Attorney Association does not seem to have balloted their members or held a meeting on the subject.

ipaaTo be fair, this is not the first time the issue has been raised. Last time, a response drafted by in-house lawyers at Reinhold Cohn responded on behalf of the Israel Patent Attorney Association. Their position was that the Code of Ethics for Patent Attorneys should be based on the Code of Ethics for Israel Attorneys of Law. I do NOT consider this position to represent the needs or interests of the industry as a whole, although it may well represent the interests of an IP group that includes a patent attorneys practice and an IP Law practice.

Do we need a legal code telling us how to behave or can we regulate ourselves?

Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through. Jonathan Swift

Here is a list of things done over the past couple of decades by members of the profession. I am not naming and shaming. Many of you will know who did what. Others will just have to take it on trust that everything listed relates to real incidents:

  • The Business Software Alliance caught a former head of the Ethics Committee running Microsoft Office on a large number of computers, despite having one single-user license.
  • One Israel patent firm is knowingly employing someone who aided and abetted a murderer escape prison in the US. This is a felony. He is wanted by the FBI.
  • As a trainee patent attorney, I was fired when I came back from Compulsory Reserve Army Duty (explicitly against the law) since the supervisor had to finish off open-work. The head of the firm explained that this wasn’t the only reason. The other reason was that I couldn’t write patents and didn’t have what it takes to succeed.
  • There are a number of firms that give work to self-employed subcontractors which may raise issues of confidentiality and employment law.
  • Some firms have trainees working on a percentage basis, they lob off the top for time invested by trainers, not all of whom are licensed professionals themselves. Graduate employees often work full-time and don’t earn the legal minimum wage.
  • A secretary was fired by an IP firm when she went into hospital for a hysterectomy.
  • There is one patent attorney that passes off trainee attorneys as patent attorneys, effectively giving them licenses directly.
  • One patent attorney has put himself down as a co-inventor on applicant’s patent applications.
  • One patent attorney has put liens on client’s patent applications for unpaid debts.
  • One patent attorney was sued by his father for trying to steal the family firm
  • One attorney-in-law, working for an IP Firm killed both parents, his mother being the head of trademarks at the Israel Patent Office.
  • One head of an IP Firm regularly makes support staff work past sundown on Fridays in case he needs their services. We note that the firm does not do outgoing work in other jurisdictions, and the Israel courts and patent office are closed.
  • On behalf of the government in a service invention dispute, one Israel Attorney sued a Fortune 500 Company whose trademark portfolio he represented. (They subsequently transferred the portfolio from him).

I am NOT stating that any or all of the above should necessarily be reason to impose sanctions on one or another attorney or firm or that all of the above are illegal. I am, however, suggesting that they could and should all be considered in a draft of a serious code of ethics, and as a group they amply demonstrates that self-regulation does not work.

History shows that where ethics and economics come in conflict, victory is always with economics. Vested interests have never been known to have willingly divested themselves unless there was sufficient force to compel them. B. R. Ambedkar

There is a separate set of problems that the Code of Ethics does not address. To my mind it should:

  • What activities are legal for a patent attorney who is not an attorney at law to perform?
  • Which activities can be conducted by an attorney-at-law on behalf of his employee, but not on behalf of employee’s clients? In other words, can a patent attorney firm employing an attorney-at-law provide legal services via the employee lawyer that a patent attorney cannot provide directly?
  • Can a patent attorney practice or provide consulting services regarding assignment of ownership? valuation and sale of patents or copyright issues?

At present, due to the lack of commitment required to take on trainees, and the ease of dumping them half-trained, and patent attorneys who have provided some training to people who cannot get licensed and are not licensed due to not having the basic requirements, such as a law, science or engineering degree, there are a number of non-licensed practitioners.

code-of-ethicsShould not the Code of Conduct or Ethics, or whatever we call it clarify what IP services can or can’t be practiced by practitioners who are neither patent attorneys nor attorneys in law?

  • Can someone who is neither an Israel patent attorney nor an attorney at law licensed to practice before the Israel Bar provide IP management services?
  • Can someone who is neither a patent attorney nor an attorney at law licensed to the Israel Bar provide patent drafting services via a patent attorney working for him?
  • Can someone who is neither a patent attorney nor an attorney at law licensed to the Israel Bar provide patent valuation services?
  • Can someone who is neither a patent attorney nor an attorney at law licensed to the Israel Bar provide IP trading services?

Israel is party to a number of international treaties, etc. I am not sure to what extent foreign law firms are allowed to have local presence in Israel. One large US patent firm is actively involved offering patent services directly to Israeli clients.

foreign-invadersI personally think that such firms should not be allowed to operate locally. There are instances where Israeli Law requires the applicant to first file in Israel. Ownership issues are different in each jurisdiction, and even after the American Invents Act, the US system is still the most different from other industrialized countries. The creation and the sale of IP creates tax issues.  I don’t think that people who are not licensed individuals have the knowledge of these issues to be able to competently practice locally. When something goes wrong, who can one turn to???

Advertising is legalized lying. H. G. Wells

The Israel Bar limits the type of advertizing that attorneys-at-law may conduct. The Reinhold Cohn draft that was adopted by (forced upon?) the IPAA suggests that at least in Israel, patent attorneys should have similar limitations to those that attorneys-in-law have.

Is it reasonable that a US firm is running a vigorous advertising campaign that the current voluntary code of conduct for patent attorneys. the draft code proposed by the IPAA and the Israel Bar obligations for Israeli lawyers do not permit. Anyone who uses search engines to get to national patent office databases and the like, gets advertisements from the US firm in Facebook, on YouTube, etc.

I think it is a terrible state of affairs that local licensed IP practitioners are at a disadvantage to practitioners and firms that are not licensed locally in terms of acceptable forms of licensing and services that they are allowed to offer. the proposed Code of Professional Conduct should address this.

If you have religious faith, very good, you can add on secular ethics, then religious belief, add on it, very good. But even those people who have no interest about religion, okay, it’s not religion, but you can train through education. Dalai Lama

Lawyers are the only persons in whom ignorance of the law is not punished. Jeremy Bentham

IPROne issue raised in the Call for Comments related to on-going training. I think that those practitioners who don’t see the need for this are so ignorant that they can’t see where they lack knowledge. However, there is a need to ensure that practitioners can clock up on-going training requirements with relative ease. Should attendance of lectures at AIPPI, INTA and other international conferences be considered appropriate training that can count to legal requirements for on-going education? One of the best local conferences is “Best Practices” run by Kim Lindy and the IP Resources forum. Kim is not a licensed practitioner. Many of her speakers are, in one jurisdiction or another, could attendance of this conference be considered as on-going professional training?

I gravitate toward the law, I think, certainly more times than not, because it’s our best mechanism for legislating human behavior, and morality, and ethics. David E. Kelley

If we desire respect for the law, we must first make the law respectable. Louis D. Brandeis

cowboyWith Basic Laws offering freedom of occupation, it is not unreasonable for cowboy practitioners, non-licensed professionals to argue that the law should allow them to offer a wide range of patent related services. Foreign practitioners may feel the same way. Maybe there are problems with a code-of-ethics that has teeth. Nevertheless I think there are specific concerns that should be addressed when designing and legislating such a code. The current state-of-affairs is less than ideal. It does not protect the clients, employees and trainees or registered and licensed practitioners. This can’t be good.

Comments are encouraged. Please have the decency to post under your name though.

 

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