Letter from IPReg: No case for one-size-fits-all

30th Nov 2020

Lord Smith brings us up to date on how IPReg is responding to LSB's formal submission to the Competition and Markets Authority’s call for evidence.


Sometimes, it’s important to read very carefully through the entirety of documents issued by the Legal Services Board (LSB). Recently, the LSB made its formal submission to the Competition and Markets Authority’s call for evidence on the operation of the legal services market. Buried deep within the LSB’s submission is paragraph 58, which talks about “smaller regulatory bodies” (a term that goes undefined, although we have to assume that IPReg would be counted among them). In relation to these smaller bodies, then comes the killer comment: “We are increasingly concerned about their capacity to deliver high-quality regulation that commands public confidence”.  

No evidence is produced to back up this assertion, other than a sweeping generalisation about how a system of multiple regulators “makes it difficult for the sector to move forward in a co-ordinated way”.  For the IP profession, this new approach from the LSB spells a huge problem. The distinctive thing about IP, surely, is that it is a bespoke profession. IP attorneys are skilled in ways that “normal” legal practitioners are not. The learning process to enter the profession is entirely specific to IP. The results of IP attorneys’ work are distinct. This is a bespoke profession, and I passionately believe that we need a bespoke regulator. 

Let’s just imagine for a moment that IP attorneys were lumped in for the purposes of regulation with a much broader profession – solicitors, say, as regulated by the Solicitors Regulation Authority (SRA). Do we think for an instant that the SRA would know anything about IP, would be at all interested or concerned, or would realise any of the profession-specific matters that it ought to be considering? Do we imagine that, by comparison with the thousands of solicitors up and down the country, the SRA would be at all interested in the needs of the much smaller cohort of Patent and Trade Mark Attorneys? 

IPReg will certainly mount a fierce argument in support of the need for specific IP-focused regulation for the profession. I very much hope that IP professionals will want to make the same case. This might appear to a bureaucratic mind to be a neat one-size-fits-all approach that could “simplify” a complex landscape of regulatory bodies, but it would be based on a fundamentally foolish assumption. Trying to bundle everyone together doesn’t make for better regulation. 

I realise all too clearly that IPReg hasn’t always got everything right. We have, I think, been steadily improving in the way we handle our regulatory task. And we’re determined to continue this, especially through the fundamental review of our rules and procedures that we’re about to undertake. But at least we understand what IP is all about, how important it is, and why we mustn’t let the LSB wilfully remove that understanding.