Life as a trainee in intellectual property and data protection

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This article has been produced by Mayer Brown International LLP.

In this LCN Says, we speak to Rebecca Keay from Mayer Brown International LLP about life as a trainee in an intellectual property (IP) and data protection seat. Read this article to find out more about the interesting matters she’s worked on, her advice for aspiring IP lawyers and the impact AI is having on the profession.

What’s the most interesting matter that you’ve worked on as a trainee?

The IP, IT and data protection team focuses predominantly on advisory work. Usually that's in the form of transactional work, but there's also scope to get involved with the contentious side of IP as well. One intriguing matter I worked on involved providing guidance on  potential trademark invalidity proceedings.

As a starting point, we looked at the scope of the brand and where it was located. Then, I did some research to assist the associate in drafting the note. That was particularly interesting because it required an in-depth analysis of the trade mark itself, followed by the application of relevant legal concepts. We had to focus on determining the acquired distinctiveness of the brand and its trademark, evaluating its position in the market and understanding how consumers perceive the brand. All of these elements are important in assessing the acquired distinctiveness of a trade mark. As part of the process, I also researched cases involving trade marks that had undergone invalidity proceedings, which I could then apply to the case I was working on.

In relation to the transactional side, our team is regularly engaged to support on corporate and M&A transactions. One recent corporate matter involved undertaking due diligence across a broad range of IP – patents, registered designs and trade marks. This matter also had a cross-jurisdictional element, allowing us to coordinate teams between the US and the UK to conduct due diligence. The cross-jurisdictional element was really valuable because I enjoyed getting exposure to different teams and the type of advice they’d give. The benefit of the seat overall is that it covers a very broad range of work.

Is the seat as you expected or broader?

The seat is much broader than I expected, particularly because the team  covers IT and data protection as well as IP. The work also involves a lot of exposure to corporate matters. We conduct IP, IT and data protection due diligence on M&A and private equity transactions. I also get involved in other tasks, such as assisting with drafting on transitional service agreements and disclosure letters, and assisting with IP, IT and data protection warranties within sale and purchase agreements. We see an overlap with pensions, when marking up privacy policies and IT service agreements, and crossover with litigation, in relation to copyright infringement and IT related disputes.

We also work with the employment team. In terms of data protection, the employment team deals with matters related to data subject access requests from employees to employers, which falls under the scope of the GDPR. Clients can inquire about timelines, the amount of data they can disclose and the type of information that needs to be disclosed. I've participated in an initial review and then a subsequent redaction exercise in collaboration with this team.

AI and cybersecurity are making a big impact – how do you keep up with developments as a trainee?

There are a lot of changes happening at the moment, especially in relation to AI. As part of my role as a trainee, I prepare weekly updates on new developments within law or guidance from data protection authorities like the Information Commissioner's Office. I normally prepare an update on the Tuesday before the Wednesday meeting. I use resources provided by our internal information centre team, which sends around legal updates and new market developments, and look at updates from the Financial Times and Lexology. I monitor these alerts during the week and pull out anything that’s relevant to our work. As I’ve progressed through the seat, it’s become easier to work out what's actually relevant and useful for the team.

What ethical considerations do you think are important when dealing with AI-related IP matters?

There are many ethical considerations when dealing with AI-related IP matters. The first is bias within the data set. AI models are trained on data sets, which means you have to be careful about the training data you're using. For example, you need to consider whether there are any human decisions within that data set that reflect a bias, because when that data is used on a larger scale that bias can be amplified.

You also need to consider transparency. When you’re using AI tools, it can be hard to work out how AI has made a decision. That means, if there’s an issue, it's difficult to attribute responsibility and to correct the problematic element of the AI tool, because you don't know why it's made a particular decision. This leads us onto another consideration – inaccuracy.

Depending on what the tool is, there’s a potential that it might be incorrect. For example, AI has been known to hallucinate cases – where it creates false data and then confidently relies on it. It's important that we check the output of tools to mitigate inaccuracy.

You also need to consider privacy. When a tool uses larger groups of data, there’s a greater risk of privacy breaches. Plus, AI has a big impact on the environment as developing systems can use a great deal of electricity and water, which creates more carbon emissions.

Find out more about the impact AI is having on the legal field in this new Wrestle with PESTLE analysis.

Do you have any advice for aspiring IP lawyers? What’s the best way to start researching this practice area?

If you’re interested in this practice area, make sure you stay up to date with developments that interest you. If there’s an ongoing case, keep track of developments and slowly build your knowledge. For example, Getty Images vs Stability AI is a case to watch at the moment. When you’ve researched and have a strong understanding of an area of law, it’s easier to present your interest and motivation at an interview.

You should also try and contextualise what you're reading. Consider why it’s important and what impact it’d have on a company? For example, when you’re thinking about data protection, consider how an update might affect your own data. I also recommend exploring the teams that you're interested in and the nature of their work. Law firms often release regular legal updates, which can provide valuable insights into the projects and cases they handle. This is a great place to start!

For more on boosting your commercial awareness, check out our Commercial Awareness hub, sponsored by Mayer Brown International LLP.

Rebecca Keay is a trainee solicitor at Mayer Brown International LLP