Intellectual Property

Toward A Post-Corona IP Culture (Part II)

As IP lawyers, we can’t be blind to the business uncertainty affecting every single one of our clients -- and our adversaries.

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(Image via Getty)

Last week’s column focused on how our intrafirm relationships must adjust to the “new IP litigation reality.” Even as we know that the pressure of challenging financial times will lead to certain firms being exposed for demanding that productivity should not suffer, COVID-19 be damned. That column also promised this week’s discussion on how a better “post-corona IP culture” will also require improved “dealings with clients and adversaries,” as well as more meaningful “interactions with the broader citizenry.” Let’s jump right in and start with how the current situation provides an opportunity for better dealings with clients and adversaries.

Clients first — as they should always be in our minds. Fortunate is the IP lawyer that has already benefited from the proverbial breaking down of walls between themselves and clients in this unprecedented time. Growing up in Biglaw, one of the competitive advantages my firm (and others) liked to talk about was the close links between firm management and key clients. Links that manifested themselves in annual client visits, or quarterly phone calls, or prized invitations to the firm’s summer golf outing. It seems quaint to think of that time, of the importance given to pressing the flesh, or of the need for firm leaders and relationship partners to hit the skies for personal visits with clients. Yes, those points of contact were no doubt important, if costly. But did they really deepen the relationship between client and firm?

Of course they did, if only at the level of showing appreciation to key customers for their patronage. At the same time, the total overnight collapse of geographic barriers between lawyers and their clients — even as many of us have seen our personal physical spaces become constrained due to movement restrictions — has enabled a new paradigm for deeper relationships with clients. The golf outing has been replaced with the Zoom call, or the text message, or the good old phone call. True, business talk is still paramount in attorney-client relationships, even as discussions of personal circumstances have become de rigueur in what seems like every contact we make with others during the day. But it would be silly of any of us to ignore the possibilities engendered by the current situation to show our clients not only how professional we can be in trying times — but also how empathetic.

The importance of empathy in professional relationships has perhaps never been as paramount a concern as it has been over the past months. And until the situation stabilizes — to the extent it ever does — the need for empathy will remain paramount. As IP lawyers, we can’t be blind to the business uncertainty affecting every single one of our clients, be they individuals or companies. Even those rare clients for whom this has been a boom time have to worry about the uncertain future, when the demand they are currently experiencing for their products and services begins to dissipate. And for those clients that have been hit hard — it has never been more important to try to put their interests before ours, while also continuing to provide our support in whatever way we can. So communicate with clients using all the new tools available. But do so pragmatically, wisely, and with deep empathy for the challenges that have been thrust upon them.

As with clients, so too must we cultivate an elevated, empathy-driven approach to our dealings with adversaries. Just as tolerance for “office bullies” is likely at an all-time low nowadays, so too should our collective tolerance for gamesmanship and professional discourtesy also be at its nadir. Not only is that behavior wasteful in an environment where clients are asking their counsel to get results with even more limited resources than usual, it is doubly wrong when the opportunity to do better is so plainly in front of us. This is not a call for any relaxation of our duty to engage in zealous advocacy of our client’s interests at all times. Instead, this should be a time where the balance between profiting from the errors of our adversaries, or taking actions that disadvantage them to no immediate benefit for our clients, should perhaps tilt toward a spirit of cooperation and cordiality in what is a trying time for all.

Litigators, for example, have no excuse for acting as if courts are operating as usual. Indeed, there have been calls from the bench around the country for assistance from the bar in helping courts address the docket management chaos caused by the pandemic. That call to action must be heeded. And those who choose to ignore it, by perpetuating disputes about tangential issues, or by trying to score cheap points against opposing counsel, should understand that such wasteful actions will likely face swift rebuke by those very same jurists calling for us to cooperate more. Again, those of us fortunate enough to have active litigation dockets would do well to remember that we rarely do our clients a service when our need to vanquish our adversaries is elevated over the client’s objectives in a dispute. That reminder, coupled with the clear call from the bench for cooperation between counsel, should be enough to foster good behavior among IP lawyers. A demographic that — for those who don’t know — was traditionally hailed for the cordial relationship between counsel, no matter how heated the dispute.

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We can end with another call to action. If there were ever a time for IP lawyers to help aid in the economic recovery we all know is necessary, it is now. Whether that aid comes in the form of pro bono work for newly displaced workers (or even for businesses facing existential challenges), or in some other form is of no moment. We must all double our existing efforts in terms of making meaningful societal contributions, including by using the technological tools that have allowed many of us to keep our practices going. It is a safe prediction to suggest that IP rights will be even more of a factor in the restarted global economy than they were pre-COVID-19. If we as IP lawyers don’t use our voices and skills to help create a better post-corona IP culture the shame will be ours. If we start by improving our present, that brighter future will surely follow.

Please feel free to send comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at [email protected] or follow him on Twitter: @gkroub.

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