The new IP: Providing protection and opportunity
IP used to be considered a tool to stop competitors from copying intangible assets. Today, it can also be a tool for growth. Four New Zealand experts discuss the challenges and opportunities shaping the industry landscape
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ALONG WITH most sectors, intellectual property has been touched by pandemic-related change.
“In the early stages of COVID we saw a drop-off in patents, followed by a surge in trade mark filings,” says Gus Hazel, partner at James & Wells. “I think this reflects a shift in the economy, the way we work and our lifestyles as we all moved to doing even more online.”
In particular, the explosion in online retail brought IP to wider notice.
“As global demand increased, local retailers saw the possibilities of selling to the mega markets of Asia, Europe and America,” says Ceri Wells, also a partner at the firm. “To be successful, you need clever and innovative products which, if they’re not protected by IP, tend to be copied as soon as others recognise their competitive advantage.”
“When the GFC struck in 2008, one of our American clients almost went bust,” Hazel says. “They manufacture building supplies, and when the domestic building market just about disappeared, so did their sales. They knew demand would come back eventually, so they doubled down on their investment in technology and the associated IP. When the turnaround came, they had an edge over their competitors and went on to be extremely successful.”
Professionals find it frustrating that businesses, and small businesses in particular, are failing to exploit the full potential of their IP.
“A report from IP Australia in December found that, while SMEs
we’ve been absorbed into the Australian system – a combination of training and university courses with a total study and examination cost of about $45,000.”
This is making it more difficult for smaller firms to take on trainees.
“We aren’t talking about recruiting kids straight out of school,” says Wells. “We need people who understand specialist areas such as artificial intelligence and blockchain – people with degrees up to PhD level who can earn really good money elsewhere. They’re not going to take on another massive debt to start on the bottom rung. As some university courses are run out of Australia, they don’t even qualify for student loans. That means firms are having to commit to a very expensive arrangement with trainee patent attorneys who can’t even be bonded for long.”
As a result, attorneys who retire, move overseas or join larger companies as in-house counsel aren’t being replaced.
“This is creating a lot of churn in larger firms,” Wells says. “We’re also seeing a lot of poaching, which is driving salaries up across the industry and will inevitably flow on to clients’ costs.”
An incredible upsurge in IP
Technology has also changed the way IP firms operate.
“On one hand, there has been the massive impact of computerisation,” says Zone Law founder Theodore Doucas, an IP lawyer and former assistant commissioner of patents, trade marks, and designs at the Intellectual Property Office of New Zealand. “Things that used to be very time-consuming, such as managing IP portfolios, are now handled electronically, and that’s made a huge difference to how we can spend our time.”
Emerging technology is creating increasingly complex challenges.
“I have a science degree, but I still have to invest a lot of time working closely with clients to keep up with their innovation,” Hazel says.
Too few attorneys
For some time now, the number of attorneys in New Zealand has been falling.
“A major reason is that Australian firms now handle the majority of the filing and prosecution work for the New Zealand intellectual property rights that come from overseas, which constitutes about 85% of the patent filings,” Wells says.
There are also fewer attorneys being trained.
“Attorneys used to be trained in-house and examined by the New Zealand Institute, with each exam paper costing about $25 to sit,” Wells says. “Since the regulatory framework changed,
James & Wells is one of Australasia’s largest independent intellectual property firms. Founded in 1979, it is a full-service firm with award-winning experts in patents, trade marks and litigation. Dedicated to excellence in all that it does, James & Wells prides itself on being approachable, responsive and agile. As a fully independent firm, it has the flexibility to adapt its services to respond to its clients' needs both now and into the future. James & Wells has been recognised with several prestigious international awards. These awards are testament to its dedication to excellence, its exceptional client service, and its detailed knowledge of intellectual property law.
Find out more
Zone Law provides a full range of intellectual property and business law services along with specialist litigation services. Its directors and staff bring a wide range of experience to IP and business law. The firm prides itself on applying innovative thinking to IP protection and problems.
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Specifically, when firms are bought up by a holding company, they’re allowed to continue working under their original name.
“To the public, they can appear to be different brands,” Hazel says. “That means an unsuspecting client could find the attorney working for them in a dispute or litigation matter is part of the same corporate group as the attorney acting for the opposite side. The problem here is that, even when they behave in an entirely ethical way, there can be a perception of conflict, and this can challenge confidence in the industry.”
Wells sees nothing fundamentally wrong with the corporate structure as long as it’s transparent and clients understand how it operates.
“An unsuspecting client could find the attorney working for them in a dispute or litigation matter is part of the same corporate group as the attorney acting for the opposite side”
Gus Hazel,
James & Wells
In Partnership with
“Companies can use IP to drive value and growth at every stage of the business cycle,” Ballance says. “For example, an IP portfolio can make it easier to attract investors or to sell the business on. You might also be able to build on existing IP or license it to create new revenue streams.”
Investing in IP can also help companies emerge stronger from economic challenges.
“In the UK, for example, there are organisations that own multiple firms/offices, but they do so under a single brand,” he says. “However, problems can still emerge if the holding company lists on the stock exchange, when you have the question of who actually owns the firm. Theoretically, you could have a company like Coke being represented by a firm which is owned by a listed company in which Pepsi has a majority stake. Potential conflicts of interest like these need to be addressed.”
“In my experience with small businesses, there’s still a perception that IP is something for the hard basket – too expensive to worry about when you’re starting out”
Julie BaLlance,
Zone Law
Some people will inevitably learn the hard way.
“In my experience with small businesses, there’s still a perception that IP is something for the hard basket – too expensive to worry about when you’re starting out,” says Julie Ballance, a lawyer and patent attorney at Zone Law. “They overlook the fact that it’s much more expensive to get out of a mess than to avoid it.”
Opportunities for growth
In 2020, Ocean Tomo reported that 90% of all assets in the S&P 500 were intangible, up from just 17% in 1975. This growth isn’t limited to the largest organisations – many smaller businesses depend on intangible assets to boost their competitive advantage. As a result, IP has two roles to play: providing opportunity as well as protection.
Industry experts
Theodore Doucas
Zone Law
Julie Ballance
Zone Law
Ceri Wells
James & Wells
Gus Hazel
James & Wells
Industry experts
James & Wells partner Gus Hazel is one of Australasia’s most experienced intellectual property lawyers. His experience includes litigation at all levels of the Australian and New Zealand systems, alternative dispute resolution procedures (mediation and arbitration), commercialisation, regulatory issues and administrative law.
In addition to traditional intellectual property and associated areas of law, Hazel has particular experience in litigation and regulatory matters concerning hazardous substances, agricultural chemicals and veterinary medicines.
Hazel is ranked in Intellectual Asset Management’s IAM Patent 1000, recommended for patent litigation and transactions, and was also featured on NZ Lawyer's 2016 Hot List.
James & Wells
Gus Hazel
Ceri Wells is a founding partner of James & Wells, a past president of the New Zealand Institute of Patent Attorneys, an experienced patent and trade mark attorney, and an outspoken champion of innovation.
Having had extensive involvement in drafting and prosecuting patent applications, and in litigation and commercialisation, Wells is often called upon to provide companies with a high-level overview of their business from an IP perspective, and to develop innovation policies and IP strategies to fit the business objectives of the enterprise.
Wells is frequently published in journals, newspapers and magazines, in which he exposes the problems faced by innovative businesses, calls for change in government policy, and generates discussion on increasing innovation efficiency.
James & Wells
Ceri Wells
Julie Ballance is a registered patent attorney, solicitor and notary public with over 25 years' experience in the IP profession. She joined Zone Law in 2021 as special counsel and is a director of its associated patent attorney firm, Zone Patents Limited.
Ballance has a first-class honours degree in chemistry, and her professional expertise is primarily in the field of patent and design law and practice. During her career, she has worked with a range of clients, from SMEs to multinationals, and has also been closely involved in the patent attorney profession, both locally and internationally. Ballance is a member of the New Zealand Law Society, the New Zealand Institute of Patent Attorneys, and the IPTA, INTA, FICPI and AIPPI.
Zone Law
Julie Ballance
Zone Law principal Theodore Doucas is an intellectual property lawyer and former assistant commissioner of patents, trade marks, and designs at the Intellectual Property Office of New Zealand. He has over 22 years' experience in the IP profession. Doucas is one of the primary founders of the Zone Group and is also the principal consultant for Zone IP, the firm's sister IP consultancy.
Doucas' professional expertise is primarily in the field of trade mark law and practice. He works with a range of clients, from SMEs to multinationals, and is closely involved in the trade mark profession, both locally and internationally.
Doucas is a member of the New Zealand Law Society, IPSANZ, INTA and AIPPI. He also currently sits on the INTA Non-Traditional Trade Mark Committee and is a member of the IPONZ Trade Mark Technical Focus Group.
Zone Law
Theodore Doucas
Theodore Doucas
Zone Law
Julie Ballance
Zone Law
Ceri Wells
James & Wells
Gus Hazel
James & Wells
Industry experts
James & Wells partner Gus Hazel is one of Australasia’s most experienced intellectual property lawyers. His experience includes litigation at all levels of the Australian and New Zealand systems, alternative dispute resolution procedures (mediation and arbitration), commercialisation, regulatory issues and administrative law.
In addition to traditional intellectual property and associated areas of law, Hazel has particular experience in litigation and regulatory matters concerning hazardous substances, agricultural chemicals and veterinary medicines.
Hazel is ranked in Intellectual Asset Management’s IAM Patent 1000, recommended for patent litigation and transactions, and was also featured on NZ Lawyer's 2016 Hot List.
James & Wells
Gus Hazel
Ceri Wells is a founding partner of James & Wells, a past president of the New Zealand Institute of Patent Attorneys, an experienced patent and trade mark attorney, and an outspoken champion of innovation.
Having had extensive involvement in drafting and prosecuting patent applications, and in litigation and commercialisation, Wells is often called upon to provide companies with a high-level overview of their business from an IP perspective, and to develop innovation policies and IP strategies to fit the business objectives of the enterprise.
Wells is frequently published in journals, newspapers and magazines, in which he exposes the problems faced by innovative businesses, calls for change in government policy, and generates discussion on increasing innovation efficiency.
James & Wells
Ceris Wells
Julie Ballance is a registered patent attorney, solicitor and notary public with over 25 years' experience in the IP profession. She joined Zone Law in 2021 as special counsel and is a director of its associated patent attorney firm, Zone Patents Limited.
Ballance has a first-class honours degree in chemistry, and her professional expertise is primarily in the field of patent and design law and practice. During her career, she has worked with a range of clients, from SMEs to multinationals, and has also been closely involved in the patent attorney profession, both locally and internationally. Ballance is a member of the New Zealand Law Society, the New Zealand Institute of Patent Attorneys, and the IPTA, INTA, FICPI and AIPPI.
Zone Law
Julie Ballance
Zone Law principal Theodore Doucas is an intellectual property lawyer and former assistant commissioner of patents, trade marks, and designs at the Intellectual Property Office of New Zealand. He has over 22 years' experience in the IP profession. Doucas is one of the primary founders of the Zone Group and is also the principal consultant for Zone IP, the firm's sister IP consultancy.
Doucas' professional expertise is primarily in the field of trade mark law and practice. He works with a range of clients, from SMEs to multinationals, and is closely involved in the trade mark profession, both locally and internationally.
Doucas is a member of the New Zealand Law Society, IPSANZ, INTA and AIPPI. He also currently sits on the INTA Non-Traditional Trade Mark Committee and is a member of the IPONZ Trade Mark Technical Focus Group.
Zone Law
Theodore Doucas
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Gus Hazel
James & Wells
Ceri Wells
James & Wells
Julie Ballance
Zone Law
Theodore Doucas
Zone Law
Zone Law principal Theodore Doucas is an intellectual property lawyer and former assistant commissioner of patents, trade marks, and designs at the Intellectual Property Office of New Zealand. He has over 22 years' experience in the IP profession. Doucas is one of the primary founders of the Zone Group and is also the principal consultant for Zone IP, the firm's sister IP consultancy.
Doucas' professional expertise is primarily in the field of trade mark law and practice. He works with a range of clients, from SMEs to multinationals, and is closely involved in the trade mark profession, both locally and internationally.
Doucas is a member of the New Zealand Law Society, IPSANZ, INTA and AIPPI. He also currently sits on the INTA Non-Traditional Trade Mark Committee and is a member of the IPONZ Trade Mark Technical Focus Group.
Zone Law
Theodore Doucas
Julie Ballance is a registered patent attorney, solicitor and notary public with over 25 years' experience in the IP profession. She joined Zone Law in 2021 as special counsel and is a director of its associated patent attorney firm, Zone Patents Limited.
Ballance has a first-class honours degree in chemistry, and her professional expertise is primarily in the field of patent and design law and practice. During her career, she has worked with a range of clients, from SMEs to multinationals, and has also been closely involved in the patent attorney profession, both locally and internationally. Ballance is a member of the New Zealand Law Society, the New Zealand Institute of Patent Attorneys, and the IPTA, INTA, FICPI and AIPPI.
Zone Law
Julie Ballance
Ceri Wells is a founding partner of James & Wells, a past president of the New Zealand Institute of Patent Attorneys, an experienced patent and trade mark attorney, and an outspoken champion of innovation.
Having had extensive involvement in drafting and prosecuting patent applications, and in litigation and commercialisation, Wells is often called upon to provide companies with a high-level overview of their business from an IP perspective, and to develop innovation policies and IP strategies to fit the business objectives of the enterprise.
Wells is frequently published in journals, newspapers and magazines, in which he exposes the problems faced by innovative businesses, calls for change in government policy, and generates discussion on increasing innovation efficiency.
James & Wells
Ceri Wells
James & Wells partner Gus Hazel is one of Australasia’s most experienced intellectual property lawyers. His experience includes litigation at all levels of the Australian and New Zealand systems, alternative dispute resolution procedures (mediation and arbitration), commercialisation, regulatory issues and administrative law.
In addition to traditional intellectual property and associated areas of law, Hazel has particular experience in litigation and regulatory matters concerning hazardous substances, agricultural chemicals and veterinary medicines.
Hazel is ranked in Intellectual Asset Management’s IAM Patent 1000, recommended for patent litigation and transactions, and was also featured on NZ Lawyer's 2016 Hot List.
James & Wells
Gus Hazel
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Components of S&P 500 market value
Source: Ocean Tomo Intangible Asset Market Value Study, 2020
100
80
60
40
20
0
Tangible assets
Intangible assets
1975
1985
1995
2005
2015
2020
83%
68%
32%
20%
16%
10%
17%
32%
68%
80%
84%
90%
“Boutique firms take a less cookie-cutter approach, tailoring their approach to individual businesses and helping to support the innovation every economy needs”
Theodore Doucas,
Zone Law
account for a very high percentage of Australian businesses, few are making use of the resources available to them,” Ballance says. “Education has always played an important role in firms like ours, but there’s still a lot more to do.”
COVID shifts retail online
Global consolidation
The IP landscape is also changing at a global level as smaller firms consolidate or are bought out by larger organisations.
“In New Zealand, the number one was bought by an Australian-listed company, which then proceeded to buy up the number two as well,” Doucas says. “This is a huge challenge for New Zealand because it leaves us with far fewer locally owned IP firms.”
Consolidation has also introduced radical changes in terms of competition, conflict and choice.
“Regulatory frameworks are different around the world, and, as far as I know, some of the conflicts are unique to Australasia,” Hazel says.
“We need people who understand specialist areas such as artificial intelligence and blockchain – people with degrees up to PhD level who can earn really good money elsewhere”
Ceri Wells,
James & Wells
Doucas started Zone Law 13 years ago with the aim of providing more support for small businesses.
“Since then, we’ve seen more lawyers and attorneys going out on their own and catering more for the needs of SMEs,” he says. “These boutique firms take a less cookie-cutter approach, tailoring their approach to individual businesses and helping to support the innovation every economy needs.”
Canada
Australia
Click on a country to view data
China
South Korea
Singapore
United States
United Kingdom
2018
2019
2020
5.6%
6.3%
9.4%
3.0%
3.6%
6.2%
25
20
15
18.4%
20.7%
24.9%
4.7%
5.9%
11.7%
18.2%
20.8%
25.9%
12
4
6
10
8
2
4
5
6
8
30
25
20
15
4
6
8
10
10
14.9%
15.8%
23.3%
15
20
25
9
9.9%
11.0%
14.0%
600
12
15
Online share of retail sales, selected economies, 2018–2020
Source: UNCTAD, based on national statistics offices data
20
14%
15
10
16%
19%
All economies
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Copyright © 2022 Key Media
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Companies
About us
Privacy Policy
Terms of Use
RSS
People
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Authors
External contributors
Copyright © 2022 Key Media
Contact us
“An unsuspecting client could find the attorney working for them in a dispute or litigation matter is part of the same corporate group as the attorney acting for the opposite side”
Gus Hazel,
James & Wells
businesses, few are making use of the resources available to them,” Ballance says. “Education has always played an important role in firms like ours, but there’s still a lot more to do.”
absorbed
system – a combination of training and university courses with a total study and examination cost of about $45,000.”
Specifically, when firms are bought up by a holding company, they’re allowed to continue working under their original name.
“To the public, they can appear to be different brands,” Hazel says. “That means an unsuspecting client could find the attorney working for them in a dispute or litigation matter is part of the same corporate group as the attorney acting for the opposite side. The problem here is that, even when they behave in an entirely ethical way, there can be a perception of conflict, and this can challenge confidence in the industry.”
Wells sees nothing fundamentally wrong with the corporate structure as long as it’s transparent and clients understand how it operates.
“Boutique firms take a less cookie-cutter approach, tailoring their approach to individual businesses and helping to support the innovation every economy needs”
THEODORE DOUCAS,
Zone Law
account for a very
high percentage of Australian businesses, few are making use of the resources available to them,” Ballance says. “Education has always played an important role in firms like ours, but there’s still a lot more to do.”
system – a combination of training and university courses with a total study and examination cost of about $45,000.”
20
25
“An unsuspecting client could find the attorney working for them in a dispute or litigation matter is part of the same corporate group as the attorney acting for the opposite side”
Gus Hazel,
James & Wells
“Boutique firms take a less cookie-cutter approach, tailoring their approach to individual businesses and helping to support the innovation every economy needs”
Theodore Doucas,
Zone Law
UK
7
4
6
8
0
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