IPPro Issue 007

Issue 007

16 October 2018

A career in IP Wynne Jones attorneys discuss career prospects in IP

Big barley, big problems No Seeds on Patents tells all about its dispute with Heineken and Carlsberg

Innovation and Invention Dallas Wilkinson runs through his new role at Dennemeyer

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In this issue

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Editor: Becky Butcher beckybutcher@blackknightmedialtd.com +44 (0)203 750 6018 Deputy Editor: Barney Dixon barneydixon@blackknightmedialtd.com +44 (0)203 750 6026

Dallas Wilkinson

Seed Patents

Dennemeyer’s new managing director, Asia Pacific, talks his new role, his hopes for the company, and recent trends

Carlsberg and Heineken are embroiled in a seedy patent dispute with No Patents on Seeds, which says the two are abusing the patent system

Licence Guidance

Patent Non-Aggression

IP Europe has revealed its draft version for an agreement on the licensing of SEPs

Junior Reporter: Ben Wodecki benwodecki@blackknightmedialtd.com +44 (0)203 750 6017 Designer: James Hickman jameshickman@blackknightmedialtd.com +44 (0)203 750 6021 Contributors: Jenna Lomax, Ned Holmes, and Maddie Saghir

Office Manager: Chelsea Bowles accounts@blackknightmedialtd.com Published by Black Knight Media Ltd Copyright © 2018 All rights reserved

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Microsoft has joined the Open Invention Network and the LOT network

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Free Trade

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Industry Appointments

Donald Trump’s USCMA will include “strong IP protection”, according to a White House official statement

IP Portfolio Manager: Serena Franklin serenafranklin@blackknightmedialtd.com +44 (0)203 750 6025 Publisher: Justin Lawson justinlawson@blackknightmedialtd.com +44 (0)203 750 6028

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Three high-level appointments at the EPO, and the EUIPO gets a new executive director

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Career Prospects

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Industry Events

Graduates considering a career in IP may have some questions

Catch up on the latest industry events and pick up your copy of IPPro

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Copyright · Latest News Trump signs Music Modernization Act into law US president Donald Trump has signed the Music Modernization Act into force.

The Orrin G. Hatch-Bob Goodlatte Music Modernization Act will introduce royalty payments for songs recorded prior to 1972, which currently aren’t subject to royalty requirements.

Under the new legislation, streaming sites like Apple Music and Spotify will be forced to pay producer royalties and streamline their licensing processes.

The Music Licensing Collective, an organisation that will be responsible for collecting and distributing royalty payments starting in 2021, will be established under the law.

The bill also includes an aspect that prohibits producers and artists from suing streaming services for any licensing violations that occurred in the past.

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Upon signing the act, Trump said: “The Music Modernization Act will close loopholes in our digital royalty laws to ensure that songwriters, artists, producers, and providers receive fair payment for the licensing of music.

I’ve been reading about this for many years, never thought I’d be involved in it, but I got involved in it, they were being treated very unfairly.”

He added: “Streaming has made music more accessible than ever, yet our laws have not kept up with the pace of technology as such, artists of all varieties and all career stages are losing out on revenue that they have rightfully earned, and I guessed that’s especially from four, five or six years ago and beyond.”

“This legislation will help ensure artists from eras long ago, in addition to modern day, can retire in security and that the current and upcoming artists can create a living by amazing works that captivate their fans and entertain our nation and the world.”

Copyright · Latest News Lucasfilm shuts down KOTOR fan reboot Lucasfilm has asked a game studio to cease development of a fan reboot of classic Star Wars video game, Knights of the Old Republic (KOTOR).

Rhonda Hjort, deputy chief counsel wrote to John Trotter of Poem Studios on behalf of Lucasfilm asking the company to cease development of a reboot of the Star Wars: Knights of the Old Republic game.

KOTOR is set 4,000 years before the original trilogy and allows players to make impactful decisions across the galaxy.

The original KOTOR and its sequel are considered video game classics and well-loved by fans of the franchise.

KOTOR’s story was retconned from the Star Wars Expanded Universe following Disney’s acquisition of the franchise in 2012.

Poem Studios’ used Lucasfilm IP on its website “without authorisation and is infringing” according to Hjort.

She requested that all Star Wars related IP be taken down.

The letter noted Poem Studios’ “affection and enthusiasm” for both Star Wars and KOTOR but said the infringement must cease regardless.

Lucasfilm said that any Star Wars or KOTOR IP used

by Poem Studios “is misleading to the public and is likely to create confusion as to whether it is affiliated with Lucasfilm”.

Poem Studios explained via Twitter that it “knew this day was a possibility” and that it had “exhausted [all] options to keep it afloat”.

The games studio concluded: “I’m sorry and may the force be with you.”

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Patents · Latest News 5G developers reveal patent licence guidance IP Europe has completed its version of a draft agreement for the licensing of standard-essential patents (SEPs) in relation to 5G and the internet of things.

In a blog post, IP Europe said the new agreement, created in a CEN-CENELEC Workshop, would help new entrants understand the licensing environment and successfully negotiate licences on fair, reasonable and non-discriminatory (FRAND) terms.

“This will be a vital first step to the EU maximising its share of the $11.1 trillion of economic value predicted to be generated by the internet of things by 2025,” the group said.

According to IP Europe, “many new businesses, large and small, are expected to implement the 5G standard in products for the first time” and the 5G open wireless standard “has been specifically designed to encourage new sectors to participate in the internet of things”.

The agreement sets out six best practice principles for FRAND licensing negotiations, and a Q&A section provides answers to questions some businesses may have upon their first forays into the wireless technology licensing market.

Francisco Mingorance, executive secretary of IP Europe, commented: “The better small- and medium-sized enterprises (SMEs) and others understand wireless technology licensing the more the technology can flourish.”

“As organisations with decades of experience in licensing SEPs, both as owners and users, we hope our experience will make it easier for SMEs and new industries to access the technology.”

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He added: “Providing information that supports a fair and efficient marketplace will help us transition from licensing the ICT sector to licensing new entrants and other industries.”

“It will increase the incentives for SMEs and others to develop products and services for the internet of things and enable developers to reinvest in the next generation of wireless technology. We all have a shared interest in realising the full potential of the internet of things ecosystem.”

Kerry Miller, chairman of the CEN-CENELEC Workshop Agreement group, added: “This document, developed and distilled from the work of many experts in the field, is a genuine effort to contribute to the creation of a successful and efficient internet of things.”

“We hope these principles and guidance will also benefit the work of the European Commission’s expert group on SEP licensing as they examine how to ensure an efficient marketplace for new entrants.”

A 60 day public comment period is now active. IP Europe encourages feedback during that period.

The App Association (ACT), which has been at odds with IP Europe over proposed licensing rules, has already initiated a separate workshop with CEN-CENELEC that “aims to make the SEP licensing fairer and more effective”.

According to Morgan Reed, executive director of ACT, the association, along with the Fair Standards Alliance and other industry participants is looking forward to “publishing inclusive, innovation- and market-focused best practices in our CENCENELEC Workshop Agreement that will conclude before the end of the year”.

Patents · Latest News

Microsoft joins OIN and LOT Network Microsoft has joined the Open Invention Network (OIN), a patent non-aggression community with over 2,500 members.

OIN members practice patent non-aggression in core open source technologies by cross-licensing Linux System patents to one another on a royalty-free basis.

Patents owned by the OIN are licensed royalty-free to any organisation that agrees not to assert its patents against the Linux System.

Commenting on MIcrosoft’s pledge, OIN CEO Keith Bergelt said: “Open source development continues to expand into new products and markets to create unrivalled levels of innovation.”

“Through its participation in OIN, Microsoft is explicitly acknowledging the importance of open source software to its future growth.”

Bergelt added: “Microsoft’s participation in OIN adds to our strong community, which through its breadth and depth has reduced patent risk in core technologies, and unequivocally signals for all companies who are using OSS but have yet to join OIN that the litmus test for authentic behaviour in the OSS community includes OIN participation.”

Corporate vice president and chief IP counsel at Microsoft Erich Andersen added: “Microsoft sees open source as a key innovation engine, and for the past several years we have increased our involvement in, and contributions to, the open source community.”

“We believe the protection OIN offers the open source community helps increase global contributions to and adoption of open source technologies. We are honoured to stand with OIN as an active participant in its programme to protect against patent aggression in core Linux and other important OSS technologies.”

Andersen also announced that the company has joined the LOT Network. The LOT Network is a non-profit organisation formed to fight against patent trolls.

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In a post on the Microsoft Azure blog, Andersen said that Microsoft had “seen [the patent troll] problem firsthand” and faced “hundreds of meritless patent assertions and lawsuits over the years”.

He said: “Many [patent trolls] do not even understand the technical concepts described in them. In the most extreme cases, we’ve seen mass mailings and campaigns to extract value from small businesses who are not equipped to understand patents.”

He added that the tech giant was joining the network to “help stop patents from being asserted against by companies running aggressive monetisation campaigns”.

Anderson referenced a study highlighting that 40 percent of small companies involved in patent litigation reported a “significant operational impact” from lawsuits from alleged patent trolls.

By joining the LOT Network, Andersen said that Microsoft was committing to licence its patents for free to other members “if we ever transfer them to companies in the business of asserting patents”.

He added that the LOT Network has “nearly 300 members” and covers over 1.3 million patents. Notable companies that are already part of the LOT Network include Elon Musk’s SpaceX, video game developers Take 2 Interactive, and Google. Microsoft’s pledge to join the LOT Network will allow it to expand its intellectual property protection programme, the Microsoft Azure IP Advantage. Azure customers are able to use Microsoft patents to counterassert against a patent aggressor. Its addition to the LOT Network means that its Advantage programme will also be applicable to LOT members.

Anderson said that benefits offered by the IP industry are “undermined when the system is abused by opportunists pursuing needless litigation”.

He concluded by inviting other companies to join the LOT Network, and said that Microsoft “look[s] forward to working with LOT in the future on other ideas that benefit developers and customers facing IP risks”.

Patents · Latest News

USMCA will include ‘strong IP protection’ US president Donald Trump has announced a reorganised North American Free Trade Agreement (NAFTA) that includes stronger intellectual property rights protections.

USMCA will include “strong protection and enforcement” for intellectual property rights.

Trump announced on Twitter that the US had reached a “wonderful” new trade deal that will replace NAFTA called the US Mexico Canada Agreement (USMCA).

He called it “a great deal for all three countries”, stating it would “solves deficiencies and mistakes in NAFTA”.

According to a White House official statement, the USMCA deal will bring the US’s trade relationship with Canada and Mexico into the 21st century.

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One such protection is the extension of patent protection for pharmaceutical companies in Mexico and Canada to 10 years for biologics, bringing the term closer to the US’s 12-year protection.

The agreement also expands the scope of products eligible for protection.

Some generic manufacturers have raised concerns that the deal could delay generic products reaching the market and other concerns have been raised over the potential cost increase for drugs in Canada.

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Industry Appointments · Latest News

EPO appoints Directorate-General vice presidents The European Patent Office has elected the vice presidents of three of its Directorate-Generals.

Stephen Rowan, Christoph Ernst and Nellie Simon will be appointed to the Directorates-General patent granting process, legal and international affairs, and corporate services, respectively.

Rowan, who succeeds the retiring Alberto Casado Cerviño, is currently the director of patents, trademarks, designs and tribunals at the UK Intellectual Property Office (UKIPO). He will responsible for the entire patent granting process from end to end.

Ernst, who is currently head of Directorate at the German Federal Ministry of Justice and Consumer Protection succeeds Raimund Lutz.

Ernst has previously served as the EPO’s chairman of the administrative council since October 2017. In his new role, Ernst will take charge of European and international co-operation, patent law and multilateral affairs, legal services, patent information and the European Patent Academy.

Simon is currently head of cabinet and acting director of the academy at the EU Intellectual Property Office.

In her new role, Simon will be responsible for delivering support services including human resources, information management, finance, general administration, and central procurement. She succeeds Željko Topić.

All appointments last for five years and begin 1 January 2019.

Archambeau confirmed as EUIPO director The European Union Intellectual Property Office (EUIPO)’s new executive director, Christian Archambeau, has been confirmed by the European Council. Archambeau was recommended to replace former executive director António Campinos following his move to become president of the European Patent Office (EPO).

Archambeau has been serving as acting executive director at EUIPO and previously served as deputy executive director.

Previously, Archambeau served as principal director at the EPO and worked at the European Space Agency for over 15 years.

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Dallas Wilkinson · Interview

Innovation and invention Dennemeyer’s new managing director, Asia Pacific, talks his new role, his hopes for the company, and some of the new trends in intellectual property Ben Wodecki reports Congratulations on your appointment, what attracted you to the role?

Intellectual property (and Dennemeyer) has been an area I have been interested in for a long time—an interest initiated early during my research career. The IP industry is an exciting industry driven by innovation and invention. Throughout my career I have been attracted and stimulated by the creation, development and commercialisation of technology and therefore the generation of IP, which subsequently captures value for those who invent and innovate.

Dennemeyer is an intimate part of this process. Maximising value from IP is critical to the advancement of all organisations (and shareholders), industries and the prosperity of many

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The IP industry is an exciting industry driven by innovation and invention

Dallas Wilkinson · Interview economies, especially across the Asia Pacific region.

Dennemeyer is a leader in this field offering a broad spectrum of services, from its integrated administrative services, global IP law firm services, consulting and IP management software coupled with an exceptional team. This broad service offering providing innovative solutions together with the global reach of Dennemeyer and the high potential of the Asia Pacific region is what attracted me to the role as managing director of Dennemeyer Asia Pacific. I am delighted to be part of this Dennemeyer team—a truly talented team that aligns with my customer focus.

What do you hope to bring to the role and to Dennemeyer?

My aspirations for Dennemeyer are to draw upon my extensive global experience leading many aspects of business including strategy, technology, marketing, sales and operations to add value to the group and help Dennemeyer grow and thrive with particular focus in the Asia Pacific region. I enjoy learning and working across many cultures and countries which will be key features for success for the Dennemeyer Asia Pacific role. I am passionate about servicing customers by adding value to help them succeed and prosper through harnessing the power of the team and technology. My ambition is to meld these elements together to deliver beneficial value to Dennemeyer and the IP industry. Asia Pacific has a strong, dedicated team and I am looking forward to working with them to grow and enhance their focus on customers and the quality, breadth and depth of our services and solutions. Helping team members prosper and reach their full potential is also envisaged as a rewarding part of the role by actively sharing my experience through mentoring and coaching.

My ambition is to meld these elements together to deliver beneficial value to Dennemeyer and the IP industry

Under your stewardship, what do you hope to change at Dennemeyer?

My focus for Dennemeyer Asia Pacific will be to grow the services we offer and the geographical footprint we currently service with a strong focus on customers and the provision of quality services and solutions which will deliver true value—now and into the future. The focus on customers will be unrelenting and will further penetrate all roles within the business so every member of the Dennemeyer team understands intimately their role in servicing the customer.

Integration of our services to provide a unique solution will be a focus but this can only be achieved by truly understanding the client’s needs.

What does the future hold for Dennemeyer and for IP as a whole?

The focus on customers will be unrelenting and will further penetrate all roles within the business

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The future for Dennemeyer will be strongly aligned with the world’s quest of embracing the digital era. This will lead to more efficient and effective services that will result in considerable value for all our customers and the industry. New, innovative solutions that are yet to be developed will accentuate the future where significant value from IP will be extracted through many techniques including data mining, portfolio management and growth together with the exploitation of artificial intelligence. While the future is not known it will be exciting as we embrace new technologies, extend current services and continue to delight customers through value creation and being their strong partner of choice. I am excited by the myriad opportunities this industry offers and starting my Dennemeyer journey to deliver the future! IPPro

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Seed Patents · Feature

Big barley, big problems Carlsberg and Heineken are embroiled in a seedy patent dispute with No Patents on Seeds, which says the two beer companies are abusing the patent system

Ben Wodecki reports Carlsberg and Heineken are abusing the patent system by gaining patents on barley seeds and plants, according to pressure group No Patents on Seeds. The group, which is particularly concerned with increasing numbers of patents on plants, seeds and farm animals, says that such patents can impact farmers, breeders, innovation, biodiversity and consumers.

According to No Patents on Seeds, the patents “have to be regarded as misappropriation of basic resources in farm and food production and as a general abuse of patent law”.

The group says that European law prohibits patents on plant varieties and animal varieties.

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Johanna Eckhardt of No Patents on Seeds observes that “big companies, together with the European Patent Office (EPO), are circumventing the law”.

“They find clever claims in their patents to get their goal, but it is not legal,” she says.

According to Eckhardt, No Patents on Seeds has been fighting this issue for 10 years and has partnered with WeMove.EU, which recently launched a petition to the EPO asking it to deny patent grants for regularly bred plants and technology used in the process of beer making.

In its petition, WeMove said: “With the patents, these transnational corporations own the barley from the seed to the pint of beer.”

Seed Patents · Feature “Not only is it outrageous these greedy corporations want to own a tradition that has been around for thousands of years, but in granting the patent, the EPO is in breach of EU law. Not only, for every patent they approve, they get paid.”

Recent proceedings have seen No Patents on Seeds obtain two victories against Carlsberg and Heineken, who co-own three patents related to barley.

EP2384110, EP2373154, and EP2575433, owned by the two beer companies, cover barley seeds and plants, as well as the harvest and process of brewing all beverages produced with the barley.

The EPO reduced the scope of two of the patents in October, leaving them restricted to plants with a specific mutation that can influence the content of these flavours.

Despite this outcome, No Patents on Seeds said that it plans to appeal the decisions as they represent “only a partial success” and has called on politicians to take action.

The group urged European politicians to speak out against companies abusing the patent system so that the EPO “will once again be reminded of their continuing responsibility to protect the common good”.

Eckhardt remarks that her team “have to make sure that the existing law is followed, and then take specific patent cases like the patents on conventional barley in beer, and exemplify the existing problems of that situation”.

The whole situation is a “big problem for breeders, especially a smaller breeder”, according to Eckhardt. She says that it is vital for the continued progress of the human race that plants are improved all the time.

She warns that the patent system doesn’t allow smaller breeders to access what could be necessary genetic materials because “if somebody has a patent on a plant, they can decide to give access to that genetic material or not”.

She says that big beer companies are “circumventing rules” and “getting patents on technical processes, for example breeding methods, or on specific traits in a plant”.

Eckhardt added: “These companies find other ways to get patents, not on the plant, but in the field of plant breeding.”

“In the case of beer, if you have a barley with certain traits, you can get a patent for the process that leads you to the trait, meaning other breeders can then not use that trait.

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But if the process is a conventional breeding method, it is not patentable.”

Breeders in the field and brewing companies that want to work with certain varieties cannot because companies like Carlsberg and Heineken would prevent that, Eckhardt explains.

“Legally speaking, these brands could patent a trait if they invented something new, but in many cases the trait they have patented already existed in nature.”

Eckhardt says that No Patents on Seeds are using the beer case to “exemplify the bigger problem behind it all”.

She highlights that her and her team were lobbying to get the implementation of EPO regulations changed in 2017, which lead to a statement from the EU Commission and resolutions from the EU Parliament. Eckhardt says that the EPO’s administrative council has made “some changes, but not very effective ones”.

Heineken has said that the patents fall under the exemption of plants “as the barley raw materials are obtained through a technical process, rather than by means of a biological process”.

In a statement, the beer maker said it would make its barley traits available to all on market terms and that the first generation Null-Lox barley trait is “now available to all interested breeders, maltsters and brewers against a small fee customary in the trade”.

A letter sent from Carlsberg’s director of raw materials Ole Olsen and its supply chain principle scientist, Albert Doderer, addressed to No Patents on Seeds’ Christoph Then and Ruth Tippe, claimed that the patents were used “to remove off-flavours and use more energy efficient brewing techniques”.

It said that the “amount of barley currently grown under the patents is too small to have any influence on the EU barley market”.

Despite Carlsberg and Heineken’s words, Eckhardt responds that her cause has “many civil society organisations” supporting their case, and she remains convinced that “many organisations will join us”.

She concludes: “This issue is an issue of food sovereignty in the end. This is not just an invention of whatever, this is the access to seeds, plants and animals which is vital so that we can develop ourselves further for challenges that we face in the future.” IPPro

Career Prospects · Interview

What is a career in intellectual property really like?

Graduates considering a career in IP may have some questions.

Wynne Jones attorney’s Christina Schiavone and Rebecca Quiney discuss the profession What does a role in IP actually involve?

Christina Schiavone: Intellectual property is still relatively misunderstood when it comes to the legal profession, and we are often asked to explain what is involved. In a nutshell, an IP attorney uses their legal knowledge, whether this is acquired from a degree or through our training academy, to help clients across many industries in protecting their original inventions and designs. This could involve advising on copyright, patents, trademarks, or registered designs.

Is a job in intellectual property challenging?

Rebecca Quiney: It can be, yes. As a senior trainee patent attorney, you get to combine an interesting and unique blend of technical, legal and commercial understanding to try and attain the best protection possible for your client’s inventions.

One of my favourite things about the job is that I am constantly faced with new challenges.

Do you need to have a law degree?

Schiavone: No you don’t, Wynne- Jones IP offers fully comprehensive training through its in-house training academy, which includes workshops, revision sessions and expert industry support.

Trainees get the chance to learn about everything from IP law, finance, business skills, to client relationship management.

Graduates looking to apply for a role as a trainee patent attorney must be studying a degree in mechanical engineering, electrical engineering or a related degree, and achieve a 2:1 grade or above.

Every day I am working with new and innovative technology, which is both exciting and challenging, and allows me to learn more about the industry. I enjoy the challenge of trying to understand what distinguishes each invention from everything that has previously been disclosed in the relevant field.

Are there a lot of exams to sit?

Schiavone: There are a number of professional exams to sit, however don’t let the thought of more exams put you off applying for a job as a trainee patent attorney.

It is tough, but you will be fully supported both technically and emotionally, and you will not be expected to take any exams that you are not ready for. There is also no time limit within which you need to qualify, so you are free to take the exams at your own pace.

Our training academy is exam driven, thus enabling our trainees to really maximise their skills and understanding of the job. The training and support at Wynne-Jones IP really has been second-to-none.

Are patent attorneys fun to work with?

Quiney: The people I work with are great! All of the attorneys at Wynne-Jones are friendly and approachable and we have a good rapport in the office. We also socialise outside of work and it’s really nice having that connection with like-minded people.

Is it stressful? What sort of support does Wynne Jones offer?

Is it a varied job?

Schiavone: Sometimes the workload can get a bit overwhelming, and in these situations it is important to ask for help and delegate work where possible.

Quiney: My role as a trainee patent attorney is definitely very varied—no two days are the same!

Wynne-Jones IP has always been really good at recognising when people are struggling, and supporting them in whatever

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Career Prospects ¡ Interview

Every day I am working with new and innovative technology, which is both exciting and challenging, and allows me to learn more about the industry Rebecca Quiney, senior trainee patent attorney Wynne Jones

way they can. In particular, we are encouraged to take breaks, and have a healthy work-life balance.

We recognise that any role can become stressful, so as a team we work alongside IP Inclusive to ensure each team member feels confident in asking for support where necessary.

Wynne-Jones IP has launched its latest training academy intake search for 2019. The course focuses on IP law, finance, business skills, and client relationship management.

The course is exam-based and includes workshops, tutorials, revisions sessions, with trainees working towards qualifying as UK and European patent attorneys.

Those looking to apply must be studying a degree in mechanical engineering, electrical engineering or a related degree. Their studies must be completed in the 2018/19 academic year and they require a 2:1 grade or above. To apply visit-Wynne Jones IP’s training academy web page: www. wynne-jones.com/training-academy/graduates/. Applications close at midnight on December 31, 2018. IPPro

We recognise that any role can become stressful, so as a team we work alongside IP Inclusive to ensure each team member feels confident in asking for support where necessary Christina Schiavone, European patent attorney Wynne Jones

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26-27 November 2018 Life Sciences IP Summit London

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27-28 November 2018 London IP Week London

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