University: Imperial College London
IP work can be divided into two main areas: hard and soft intellectual property. ‘Hard’ intellectual property relates to patents, while ‘soft’ intellectual property covers trademarks, copyright, design rights and passing off. IP barristers advise on issues that range from commercial exploitation to infringement disputes and agreements that deal either exclusively with IP rights or with IP rights in the wider context of larger commercial transactions.
Science and technology might be an unusual platform from which to embark on a career at the Bar, but that was the case for Chris Hall, who began his career in physics. The switch to the Bar did not come for some time. “After I left university, I worked as a private physics tutor for a couple of years before joining BT as an IT project manager,” he explains. “After a while, I found that advocating the technical ideas of others was more enjoyable than doing the programming myself, and I began to earn a reputation as someone who could sell a new project to the bosses.” Chris was really getting into the advocacy, and at the same time was missing the aspects of self-employment he had enjoyed as a private tutor: “With advocacy, selfemployment, and my science and technology experience, a career at the IP Bar made sense.”
Pupillage: “tough, challenging, but rewarding”
Chris secured pupillage at 11 South Square. He is candid about how tough the process really is: “From my own experience and from talking to others at various chambers, pupillage is a uniformly tough experience. You cannot escape the reality that pupillage feels like a year-long interview which you can fail at any moment. If I had one tip, I would emphasise that your supervisor is interested primarily in seeing how you would do things if you were in their shoes. This is likely, for example, to involve you doing a piece of work that your supervisor has already done in the past. That can feel like a waste of time, but of course it isn’t because you’re trying to prove that you can reach the same standard. Finally, don’t lose sight of how brilliant being a barrister is – it is well worth the challenge.”
Now a qualified barrister, Chris handles a varied IP caseload. “Most IP barristers start out as general practitioners working across the four key areas – copyright, trademarks, patents and designs,” he explains. “It is common for people with science backgrounds to specialise in pharmaceutical or technology patents, but many IP barristers retain wide practices, as the IP Bar is such a specialised area anyway.” He also emphasises that IP barristers are regularly involved in many wider cases, such as IT, media or commercial contractual disputes, “where there is an IP angle”.
IP law focuses on the granular detail, so Chris’s physics background has stood him in good stead. “Most IP sets will tell you that a science, maths or engineering degree is advantageous, if not strictly necessary, because one key skill that IP barristers need is the ability to understand how things work,” he explains. This is the case particularly for patents and designs, which usually involve looking at the specific detail of a tangible thing and asking how it works, why it is a certain shape and so on. There are also more specialised niches within IP, so Chris suggests that “you are unlikely to be able to understand complex pharmaceutical patents without some training in chemistry, for example. It is true that a science education lends itself to IP. Nevertheless, a PhD in biochemistry is neither necessary nor sufficient; what really matters is the ability to master new concepts quickly.”
“In IP, it is more than purely commercial litigation – you regularly get the small family business with a big idea, or sometimes the mad inventor squaring off against the corporations trying to stop him”
In IP, there are lots of opportunities to go to court. “The IP Bar is unique in that although it is commercial, there are many fixed-cost and low-cost tribunals, affording junior barristers plenty of opportunity to get out there and argue cases. This experience can be difficult to get elsewhere at the commercial Bar,” Chris explains. “Junior IP practitioners regularly appear in tribunals at the UK Intellectual Property Office, and in the new, bespoke Intellectual Property Enterprise Court.”
In terms of litigation, there is an even split between instructions on the side of defendant or claimant. As for where instructions come from, “because IP is quite a small area you regularly see the same faces – there are not that many solicitors who regularly practise in IP, so you build strong relationships with instructing solicitors and there are also many regular clients,” Chris continues.
And the cases themselves involve a wide range of products, as Chris outlines: “On my desk I have two snack food products that are sold under very similar names; two scrubbing brushes with similar designs; two letter boxes that function in the same unusual way, and more. One of the satisfying things about IP cases is that a lot of the litigation concerns tangible objects – you can examine them, and see how they work and what they look like.”
The job also brings Chris into contact with all kinds of interesting people: “In patent cases, you work with expert witnesses who teach you about very specific areas of technology. This means that in every case you learn something new from a world expert in their field – and you get paid for it! There are some colourful characters too. The first trial I was in concerned the design of caravan covers, and one of the witnesses was an avid caravan enthusiast. In his evidence he described the perils of towing his caravan all over Northwest England in various states of Cumbrian weather with the caravan covers flapping around in the wind and rain. The judge described him as ‘engaging and direct’; he was more like a stand-up comedian. In IP, it is more than purely commercial litigation – you regularly get the small family business with a big idea, or sometimes the mad inventor squaring off against the corporations trying to stop him.”
However, these ‘David v Goliath’ situations don’t always end in victory for the underdog. “It is very often the case that when a defendant loses, they lose everything,” explains Chris. “It’s quite a responsibility for a junior barrister to bear. You see a lot of clients – both claimants and defendants – suffer because of something that perhaps could have been avoided with a bit of legal advice early in the day.”
There is much afoot in the wider world of IP and Brexit will undoubtedly have a significant effect, as Chris explains: “A lot of IP law is harmonised across the European Union, and there are many rights which are EU-wide, for example the EU trademark and the EU registered design. The scope and practice involving these rights regularly changes with the jurisprudence emerging from 28 member states. There is also a planned introduction of a unitary patent which will be valid across the European Union. In tandem, the Unified Patent Court is being introduced in 2018 to resolve disputes related to those patents.”
No need to rush
Chris has some advice to share for those hoping to achieve the necessary standards. “It is very useful to have some experience in the real world,” he begins. “As a junior barrister at the IP Bar, you will often be representing small businesses in relatively low-value cases. The case fits your level of experience, but you will usually be dealing with the person at the top of the small business – the chief executive or sole director. This creates a mismatch in terms of experience, and you have to earn the trust of the client despite your lack of experience. It helps to be able to speak to clients on their level and to demonstrate that you understand their commercial world. This gives clients much more confidence in your ability. So I would positively encourage people to get some experience before coming to the Bar.”