Divorce can be a messy business, especially when you used to run a $3.5bn hedge fund with your ex. The split in 2009 between Martin Coward and Elena Ambrosiadou, who founded the Cyprus-based Ikos hedge fund in 1992, was acrimonious, leading to dozens of lawsuits in multiple jurisdictions over several years.
Rather than custody of the children or who would keep the family home, lawyers focused on something even more complicated: who owned the company’s trading algorithm?
As part of this process, the code in the algorithm used by Mr Coward at his new business had to be compared with the one used by Ikos. There was only one problem: the code was millions of lines long.
With court-imposed deadlines pressing, Andrew Moir at Herbert Smith Freehills — working for Ikos — wrote a bespoke program that compared the two.
The efforts of Mr Moir, who was a software engineer before he became a solicitor, demonstrate the increasing lengths lawyers now go to in order to win intellectual property cases.
The increasing complexity and profile of intellectual property mean law firms find themselves at the forefront of monitoring, explaining and combating infringement — as well as coming up with snappy new legal points. “There is a lot of overlap between the law and the technology in intellectual property,” says Mr Moir. “If the lawyers live and breathe the tech, they can really help formulate the arguments.”
In this climate, lawyers with a background in science or technology are increasingly valued. Finding people with these sorts of skills is becoming important when dealing with any topics that touch on intellectual property, says Stephen Kinsella, a partner at Sidley Austin. “There is a recognition of the value of having people like that,” he says.
Other firms have gone further than using the coding skills of one of their team. Lawyers at Wiggin, a media law firm, set up a separate business dedicated to monitoring abuse of intellectual property online. The business, Incopro, started life in 2012 predominantly as a way of monitoring copyright infringement in film and music.
But when Wiggin’s lawyers started working with luxury goods group Richemont in 2013, they realised the monitoring software could be put to wider use by tracking down counterfeit sales of the Swiss group’s brands.
The sale of counterfeit goods online was a growing problem for Richemont, whose brands include Alfred Dunhill, Montblanc and Cartier. Monitoring and trying to take down these websites was a long-winded and expensive process.
Incopro proved invaluable in a case brought by Cartier against BSkyB, an internet service provider in the UK, which was reluctant to block websites selling the luxury goods maker’s wares. BSkyB had argued that blocking websites did little to prevent the sale of counterfeit goods. Statistics provided by Incopro demonstrated to the court that the opposite was true — and the court found in Cartier’s favour.
“For a long time, technology was just the enemy,” says Simon Baggs, a partner at Wiggin. “If you were a rights owner, there was a new thing called the internet and everything coming out of it looked bad.”
Now it is an ally. A tool aimed at stopping people illegally downloading a film worth a few pounds in lost cinema ticket or DVD revenue was used to stop the sale of £10,000 Cartier watches. “If the internet is a series of pipes, the way to tackle that problem is to go after the pipes,” says Mr Baggs.
This principle was picked up by Allen & Overy, acting for pharmaceutical company Pfizer in a patent dispute with the makers of an off-patent drug. Pfizer was trying to defend the $300m of revenues generated in the UK by its Lyrica drug, which is used to treat epilepsy and in neurological pain relief. While the drug’s patent for treating epilepsy had lapsed, it still applied when it was prescribed as a pain reliever. Doctors, however, would often simply prescribe the drug under its generic name, even when doing so for pain.
A large US pharma company suing British doctors and the National Health Service would not look good. Allen & Overy argued that in this case the NHS was an intermediary — like BSkyB was in the Cartier case — and therefore had an obligation to ensure patents were not being infringed.
The court agreed and the NHS came out with guidelines on the prescription of Lyrica — much to the chagrin of GPs, many of whom felt they had been unwillingly placed on the front line of patent enforcement.
As intellectual property becomes an increasingly complicated and occasionally controversial topic, lawyers need to consider expanding their knowledge of another: public relations.
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