Managing conflicts of interest is obviously critically important to the patent attorney profession and, without a doubt, the interests of the client are paramount in that consideration both from a professional perspective, and in Australia at least, in terms of the code of conduct that governs the profession.
And yet…you know…
Over the years, I have often heard the threat of conflicts of interest being brought forward in what are essentially business development contexts: “They shouldn’t be able to act for X because they act for Y.” Or, more vehemently, in litigation, as a strategic move to take an opponent’s counsel out of the picture, “they have acted for X in the past and therefore cannot act against X now.”
It’s easy to point the finger…
A more recent development particularly in a business development context is the vague threat of conflicts of interest in relation to listed entities: “their shares are publicly traded and could be owned by anyone, who knows what implications that has?”
So what gives? At a certain level, there has to be some pragmatism to conflicts of interest, and that pragmatism is often displayed by clients. Within Australia for instance (and perhaps in juxtaposition to the US), there are only so many patent attorney firms that can be sustained by the level of business available, and they can only develop a sustainable practice by acting for many clients in similar fields. The use of information barriers and written consent has arisen to deal with this situation. The alternative of having your own private and exclusive yet downright reputable patent attorney firm (obviously everybody’s business dream!) only works for certain very large clients.
This has implications for the way conflicts are managed. There are numerous potential case studies and hypotheticals – perhaps we’ll have a look at them in future posts. However, one thing I will say, conflicts of interest are too important to be the subject of baseless cheap shots at your competitors!