The Intellectual Property Laws Amendment (Raising the Bar) Act 2012 had an impact extending beyond the acquisition of patent and trade mark rights. Outside the patent attorney profession, few realised that the RTB Act included a short provision allowing patent attorneys to incorporate.
Our lawmakers are unlikely to have suspected how profound this seemingly innocuous change would turn out to be. Legal firms in Australia had been permitted to incorporate since the 1990’s and this had not had a major impact on the structure of the Australian legal profession. Several legal partnerships had taken the opportunity to incorporate to address liability or taxation issues, but overall the profession remained relatively unchanged.
When the same opportunity was afforded to patent attorneys in Australia in 2013, it provided a platform for a complete re-shaping of the profession. Prior to 2013, the following firms were the most prominent patent attorney firms in Australia:
- Phillips Ormonde Fitzpatrick
- Shelston IP
- Spruson & Ferguson
- Davies Collison Cave
- Griffith Hack
- FB Rice
- Fisher Adams Kelly
Each was a separately owned independent business. The publicly listed company IPH Limited, established by Spruson & Ferguson, now owns eight of these firms – some re-badged or otherwise re-branded. A separate publicly listed company, Qantm Intellectual Property Limited, owns two. As such, of these thirteen firms, ten are now owned by two listed entities. IPH Limited has gone on to purchase two major patent attorney firms in New Zealand, namely AJ Park and Baldwins IP.
Phillips Ormonde Fitzpatrick and FB Rice are now the largest of the non-listed independent patent attorney firms in Australia and New Zealand.
The result of such a high proportion of patent attorney businesses being owned by two listed companies was not anticipated by the legislators. This led to concerns with respect to possible conflicts of interest when two firms from the same listed company group were acting for clients with adverse interests. After some soul-searching, the Australian Professional Standards Board released a new Code of Conduct with rules specially tailored to deal with this new dynamic. Firms within the same Ownership Group can now act for parties with adverse interests if the firms operate independently, except in matters before a court or tribunal, in which case informed consent of the parties is required.
It is not clear whether the dust has finally settled, even ten years after this quite momentous change. It remains to be seen whether further of the privately owned firms which now operate in Australia independently will ultimately become integrated within large corporations owned by public shareholders, rather than registered patent attorneys.