Andy Mukherji

A recent study by IP blogger Mark Summerfield discussed the winners and losers as far as Australian patent filings are concerned, and there is a clear indication that more businesses are engaging smaller independent boutique IP firms than ever before. In some cases, Australia’s largest publicly-traded firms have seen drops in the range of 5% to 10% over previous years, while smaller firms have seen increased filing numbers. In this article, we look at some of the reasons for the change of filing patterns in Australia.

As previously reported on this blog, in the last two years several large Australian patent attorney firms (having a combined market share of close to 70% in Australia) have been listed on the stock exchange or been acquired by publicly listed companies. This means that almost 70% of the market share of Australian patent filings is controlled by three publicly listed companies… In our opinion, the conflict of interest provisions in the Code of Conduct (the Code) for Patent and Trade Mark Attorneys 2013 (Cth) (“the Code”) do not address the very real and unique conflict issues faced by the sibling firms’ attorneys on a daily basis.

Over the last two years, the Australian patent and trade mark attorney profession has seen a number of significant changes. The 2013 amendments to the Patents Act 1990, meant that Australian patent and trade mark attorney firms could incorporate. This led to the consolidation of some of Australia’s biggest patent and trade mark attorney firms. These consolidated firms have subsequently listed on the Australian Stock Exchange to raise capital and have since been on an aggressive acquisition spree to achieve market dominance… In short, there are inherent conflicts of interest when an individual or entity is obliged to act for both clients and shareholders.