I read a tweet the other day advising start-ups about seeking a lawyer’s advice. It was phrased as “unfortunately necessary.” That gave me pause. I like the “necessary” part, but the “unfortunately”, really? That’s not how I think of myself or my profession generally.
I like to think of lawyers as problem solvers. That’s probably a different vision than what comes to mind for many people. Since my world of law is focused on intellectual property strategy for biotechnology and healthcare-related companies, I’ll use that as an example. But I suspect that the problem-solver label is a lot more universal (or it could be).
In working with researchers and engineers, start-up founders, and the like, I think there are some who look at lawyers as the people “who just say no” or take the “reverse-Nike” approach of “Just don’t do it.” And I suppose there is some truth to this perception. Lawyers are trained to look for risk and counsel against it.
However, in the start-up environment, for technology investments and for growing companies, risk is part of the equation and often a necessary part of the path to success. This is where legal must fit itself in as a piece of the puzzle, rather than stand outside it.
Now, I’m not suggesting that all risks are equal or all should be taken. Some actions are just outright illegal and some are just not worth the potential downside. But, if risk is to be part of the equation, then the lawyer’s contribution should be to make the legal-related risks visible to the team, to assess the relative weight of the risks associated with the available choices, and to provide counsel on alternatives that could lessen or avoid the identified risks. This can then be integrated with other information – business opportunity, market risk, financial risk, availability (or not) of other options and where this action falls within the grand scheme of things for the company’s future (short term and long term) – to decide a course of action.
Let’s take an intellectual property issue as an example. A company wants to develop a biologic drug. This drug is an antibody and will be made in a cell line that has been engineered to make proteins with particular glycosylation structures (sugar residues attached to the protein). The company’s IP attorney does a search and finds a published patent application on the cell line and method of using these cells to get proteins with the desired glycosylation.
In the “just say no” model of things, the lawyer would tell the company there is an infringement problem, and to therefore stop and change direction.
In the “bury your head in the sand” model, the company might not even do this initial patent search, let alone consider alternative courses of action.
In the problem solver mode, the search result leads to questions:
- What is the probability the patent will issue with the claims covering the cell line and the method?
- How strong or weak is the patent if issued?
- What countries are covered by the patent and its patent family and how does this compare with where the company operates (and sells) or will operate/sell the antibody product in the future?
- Who owns the application and how likely is it that the party will want to enforce the patent? Will this party be open to licensing on reasonable terms?
- What is the probability the company is even going to use this technology? Is it in the early stages of evaluation or has it been chosen as the preferred path forward?
- What other technology alternatives are available or could be developed? and what would this cost in time, resources and money?
- Are there business, market or regulatory risks if the company does not access this technology?
- Where does the proposed biologic product fall in the company’s priorities? Is it a key piece of the pipeline? a side project? a new area of exploration? or something in the middle?
- If the company could go forward full-steam ahead, what are the short-term and long-term impacts? and similarly, what would be the impacts if the company couldn’t use this technology at all, or not right now, or only with restrictions or financial implications (such as a royalty)?
Exploring these parameters, and joining pieces of the puzzle with perspectives from the other team members can help guide the course. So, instead of “just don’t do it,” the solution can be more multi-factorial and adjust with changing plans and priorities over time. In other words, you can generally get to a “let’s do it,” but with an appreciation of the risks and conscious decision to take them on board.