As been stated earlier the Australian patent attorney firms have been listed on stock exchange or been acquired by publicly listed companies. This means that 70% of the market share of Australian patent filing has been acquired by these three companies:
• Intellectual property holding limited, owner of Sprusson and Freguson.
• Xenith IP Limited, owner of Shelton IP, Watermark and Griffith Hack.
• Qantm IP limited, owner of Davies Collision Cave and Freehills Patent Attorney.
The catch
With these publicly listed companies owning up to 4 large firms and having operations extended beyond Australia, New Zealand. The individual firms owned by the same parent company (“the sibling firms”) continue to claim independence from each other. However, there are numerous examples of sibling firms acting on opposite sides of the same ongoing contentious matters. There is also concern that sibling firms are prosecuting patent and trademark applications for clients who have contrary or competing whose commercial interests. In our opinion, the conflict of interest provisions in the Code of Conduct (the Code) for Patent and Trade Mark Attorneys 2013 (“the Code”) do not address the very real and unique conflict issues faced by the sibling firms’ attorneys on a daily basis. The scenario of competing sibling firms owned by the same entity is unique to Australia and a similar situation specific to patent and trade mark attorneys has not arisen elsewhere in the world.
The scrutiny
The Trans-Tasman IP Attorneys Board (“the Board”), is the regulatory body responsible for regulating patent attorneys in Australia and New Zealand. The Board is currently examining the conflict issues generated by70% of Australian attorneys being the employees of 3 companies. A consultation paper was recently released by the Board and is available for viewing at IP Australia’s website. The consultation paper details some of the issues that are likely to be addressed by introducing revisions to the Code once submissions are received.
The consultation paper explicitly states that “the listed group scenario is a reality, and indeed a significant commercial reality given the concentration of attorney work in Australia currently undertaken by listed group firms.” However, the Board does recognize that, while the structures for each of the listed companies are valid and legal business structures, the conflict issues, particularly those of sibling firms acting for clients with competing commercial interests is very important and must be addressed.
Opportunity for foreign Patent applications
International corporations and their representatives rely heavily on Australian intellectual property firms to file and prosecute Australian (and New Zealand) patent and trademark applications. IP Australia’s 2016 IP Report revealed that over 90% of patent applications (21,484 out of 23,098 patent applications) filed in Australia in 2016 were owned by overseas applicants. United States based applicants file more than 50% of Australian patent applications, with Japan, Germany and the United Kingdom being the next big foreign filers.
