Is IP protection bad? Possum Magic, Khe Sahn and the Productivity Commission vs Intellectual Property

Australian TV show, Q&A, gave intellectual property a rare but brief time in the sun on Monday night.

Interestingly, it took one of our most right wing politicians, Jacqui Lambie and one of our hardest rockers, Jimmy Barnes, to lambast what I agree is a quite ludicrous proposal from Australia’s Productivity Commission.


Amongst other proposals in its draft report into Australia’s Intellectual Property Arrangements (, the Productivity Commission suggested that the term of copyright protection in Australia be reduced from the current term (in most cases) of the life of the author plus 70 years to a flat 15 years.

There are policy arguments either way and I won’t bore everyone with them now. You can read them in the report if you are finding it hard to fall asleep.

You won’t find me agreeing with Jacqui Lambie terribly often, but her Possum Magic ( argument (that one of Australia’s most loved books would now not be protected by copyright) was one of the best IP arguments I’ve heard in some time.

Similarly, I suspect Jimmy Barnes’ political views would usually differ from my own, but again, I can’t see how the Productivity Commission could seriously be suggesting that Khe Sahn should no longer be protected by copyright.

As an IP lawyer however, what I found most astounding however was that in its own report the Productivity Commission even notes that Australia is party to various international treaties and agreements that require us to adhere to various IP standards, including the term of protection and prevent us from doing so. For example in their own report the Productivity Commission says :

At section 4.1 “Although copyright law is implemented on a domestic basis, the minimum coverage and duration of protection has long been governed by international treaties. As noted in the previous chapter, the earliest multilateral copyright treaty, the Berne Convention, was signed in 1886.


At section 17.3 “Australia has a long history of multilateral cooperation on standards of IP protection.   Australia is a party to a number of international agreements that set common rules for the protection of IP:

• Early treaties, such as the Paris Convention for the Protection of Industrial Property 1883 and the Berne Convention for the Protection of Literary and Artistic Works 1886 represent initiatives to agree IP standards on a multilateral basis.


• TRIPS, establishes a minimum set of obligations on WTO members for the protection and enforcement of IP. Countries can provide higher levels of protection, but they cannot provide less without risking a dispute with another WTO member.

These proposals and many more of the other suggestions simply don’t take account of real world realities. If Australia followed this and other equally ludicrous proposals (don’t get me started on what they said about patents) we would be in breach of a treaty that has been in place since 1883 and the TRIPS agreement, both with significant adverse consequences for Australia and its innovators and creatives.

I do wonder how many hospital beds could have been funded out of the money spent on this quite pointless and also dangerous exercise. Intellectual property is not bad, it is a necessary legal right to encourage creativity and innovation. Australia cannot and should not resile from its international IP obligations.

If we have Jacqui Lambie and Jimmy Barnes agreeing on something, maybe the Productivity Commission and our government should listen.  Otherwise there will be no more possum magic and the last train out of Sydney will certainly be gone.

Malcolm McBratney


Nespresso and the Importance of Intellectual Property

As I sat down to a cup of coffee this morning and put a non-Nespresso pod into my legitimate, made under licence, Nespresso machine, I got thinking about the change we have seen in the Nespresso market over the last few years as the original Nespresso patents around the pods have expired.


Nespresso patents – Nespresso pods are the only game in town

When I was first introduced to Nespresso quite some time ago, as Henry Ford would have said if he was a Nespresso consumer, you could buy any pods you wanted, as long as they were Nespresso.

Nestle, the creator and owner of Nespresso had for an IP lawyer such as myself, done what we IP lawyers love to see, they had as part of the innovation process (not after the fact!), surrounded the Nespresso product with IP protection in the form of patents, registered designs and trade marks, along with their automatic more limited copyright protection. Their first patent was filed way back in 1976 and it took until the 1990s for an international launch and in reality it wasn’t until  the 2000s and “Clooney Time” in 2006 that Nespresso really took off.


Nestle’s Nespresso IP rights, especially their patents, gave Nestle a monopoly on the machines and especially the pods, allowing Nestle to keep out competing coffee manufacturers wishing to sell non-Nestle, but Nespresso compatible pods. Nestle did not underestimate the power of the dark side, i.e. patents over the Nespresso pods and machines (I am pro-IP by the way, I just couldn’t resist a Star Wars play on words here).

I won’t repeat the Nespresso timeline here, but a short version is here – and the offical version here – .

Did the Nespresso IP portfolio make Nestle lazy in product innovation?

While I have not conducted a detailed empirical evidence based study, my impression is that while Nestle had these core patents in place and while it continued to innovate technically, the range of Nespresso pods available remained relatively stable and restricted to the core flavours, with the occasional “special” flavour. Why not? Nestle has a strong patent portfolio (which they enforced vigorously) and they were able to keep out competing pods for many years.

That didn’t stop us all buying Nespresso pods online or in store and we all readily parted with our cash to buy official Nespresso pods.

What happened after the core Nespresso patents started to expire?

Only in the last few years have we seen non-offical Nespresso pods come to market. When making my coffee this morning, I have a choice from Robert Timms, LOR or Grinders non-official Nespresso pods. Each of these I was able to buy at the local Coles supermarket for 50c a pod, rather than 68c-78c a pod for official Nespresso pods. I also didn’t have to jump online and wait or drive out of my way to find a Nespresso store.

In response to this, I have noticed, especially recently as I re-engaged with Nespresso after some time off, that Nestle has gone all out on various special flavours and promotions.  Right now and not co-incidently timed with the Rio Olympics, you can now buy a very flash Brazilian Nespresso pod for the bargain price of 93c a pod :

Over recent years, other limited editions have arrived with increasing frequency in an attempt not just to innovate, but to differentiate from the generic competitors :

What are the lessons from the Nespresso and Intellectual Property story?

As I finish my Grinders Nespresso compatible espresso as I type this post, I am reflecting on the lessons from the Nespresso story. First and foremost, it is an excellent real world example of the importance and value of intellectual property. Imagine if Nestle had not put in place IP protection around the Nespresso concept? With the unauthorised competition, it is unlikely Nestle would have continued to invest in a product that was in fact unprofitable in its early days.

Instead, Nestle enjoyed in return for its investment in innovation various monopoly periods around the world and became the success it is today. Now that the core patents have expired, consumers can now choose to buy offical Nespresso pods online or in Nespresso stores or those made by competitors and sold at a cheaper price and more conveniently in supermarkets and elsewhere.

Does this spell the end of profitability for Nespresso? Certainly not. Nespresso is now firmly established and while I would expect some decline in profit from the emergence of competing pods, Nestle continues to innovate and continues to vigourously protect and enforce its IP.

For me, I’ll keep buying the cheaper and more convenient competing products. I do however seem to have accumulated 3 legitimate “made under licence” Nespresso machines, so don’t forget a royalty got paid back to Nespresso on each of those by the manufacturers too.  I must say some of the non-authorised pods do get stuck in the machine…


Do you still by real Nespresso pods or buy the non-authorised competitor products? Please comment below and please do follow my blog itself if it is of interest.

Malcolm McBratney







What makes a good boss?

I have seen the following quote a few times now on LinkedIn (it came up again today) and elsewhere and identified with it each time I saw it :


So it got me thinking, what does make a good boss?

Hire smart people

There is the old adage, that a good boss hires people that are smarter than themselves. How often does this actually happen in practice, in the legal industry in particular, but also business more generally? While I can claim (in most instances) to have hired people smarter than myself over the years, too often in my view those hiring become threatened by someone smarter than themselves, especially if they are a senior hire. I guess it is less threatening to hire a super smart graduate, than a super smart person one level below you on the promotion ladder.

This is however a false economy and the “boss” is doing themselves a disservice. Over my twenty plus years in legal practice,  I was able to grow a large high performing legal team by hiring smart people at all levels and guess what, it made my life easier! Instead of having to hand hold each person every step of the way and lie awake at night wondering if they had got it right, I let those smart people run and had smart people turning out excellent work, on time, resulting in happy clients.

Can you teach smart?

I have lost count of how many job interviews I conducted ranging from raw graduates through to partners over the years. I was often heard to say, especially for graduate positions and junior to mid-level staff something like”We can teach this person the ropes here and give them all the training  and support in the world, but we can’t teach them to be smart.” Some of the best hires I have seen over the years is when the person hiring looks beyond the nice suit (although that is also needed, along with polished shoes!) and looks at (and preferably experiences first hand via an internship or clerkship) whether the candidate is smart. Academic results are important of course, but smart in practice, doing the work the candidate will be asked to do, is vital.

How does a good boss manage smart people?

You have already hired many smart people or will do so from now on, how do you manage those smart people? Much like the quote from Tina Fey above, in my view, you hired those people because they were smart and talented so it is vital you give them room to spread their wings and show you how they can soar.

Set guidelines, provide support, be accessible for queries and set realistic deliverables and deadlines of course, but otherwise get out of the way and let those smart and talented achievers show you what they can do!

Give feedback in a timely manner, give credit where credit is due, but above all else, let those smart people soar. You won’t regret it.

What else makes a good boss?

Managing smart people aside, what else makes a good boss? Some approaches that I have employed in managing legal teams include :

  • Set clear expectations from the outset of hiring and at the commencement of each discreet task;
  • Set clear deliverables and deadlines;
  • Provide the staff member with the necessary material or information including where to go and find it if needed;
  • Implement and then walk the talk of an “open door” policy where the staff member is encouraged to come and ask questions if unclear or seeking guidance. I always made it clear that the mostly junior of staff was always welcome to walk through my (open) door and ask questions or seek advice if needed;
  • Entrench a culture of learning and that there are no stupid questions. I always made sure my team they could ask questions of myself and others even if they thought it was “stupid” (it basically never was).
  • Similarly, my team meetings had a standing agenda item of “Lessons learnt”. This was a free flowing discussion where team members were encouraged to speak to lessons they had learnt in the past week, especially mistakes they made so that the whole team could learn from those mistakes. In the beginning it would often take myself or one of the other partners to start off with a lesson learnt or mistake made, but once it became clear to all that there were no recriminations and it was a very useful exercise, this sharing of lessons learnt became part of the team culture and it became one of the most useful agenda items of the weekly team meeting.
  • As “the Boss”, you have to walk the talk. While accepting that legal firms and indeed all businesses have hierarchies, don’t ask a team member to do something that you wouldn’t do yourself. While timeframes are usually tight, don’t set crazy deadlines or if timeframes are that tight, be there in the trenches with the team. I’ve lost count of how many simple confidentiality agreement reviews I ended up doing myself as they were urgent and my team was already busy on other important work!
  • Be a role model. Mentor, train, invest in and grow your staff. Nothing made me happier over the years than seeing staff members who I had hired as graduates make their way through the firm to ultimately become top shelf lawyers, whether they be in private practice or in-house, working for government or a partner.

Are you a good boss?

Having read the above, are you a good boss or do you work for a good boss? Even if you are, we can all do better. Take my word, hiring smart people, mentoring and training them while giving them the freedom to soar is not just satisfying, but profitable, aids retention and it makes your life easier!

What do you think makes a good or bad boss? Please comment below.

Malcolm McBratney


Giving things a go, fear of failure, hardiness and the art of DIY and gardening

Yesterday I bought the book, DIY Garden Projects by the Little Veggie Patch Co ( and have got half way through it already. It’s also available on eBay.


I was particularly taken by the message in the introduction dealing with hardiness and giving things a go.

The authors’ message was that when we were all young we would give anything a go, but these days fear of failure prevents us doing so. When young it didn’t need to be perfect, but as the years passed, if we can’t do a task perfectly like a grand master, often that stops us doing it at all.

I’ll share a few short quotes from the introduction to give you an idea :

Inhibition is truly the greatest obstacle to learning

We all start out as absolute duds – let’s not forget that our failures make the best stories

Hardiness isn’t something you are born with…it’s something that is learned…that means the ability to do something well enough to enjoy it. Give yourself a break and let go of being the best. Only one person can be ‘the best”, but there is still a lot of room for the rest of us to have a little bit of knowledge.

In my opinion it is a great message, don’t let the quest for perfection stop you from doing things. I’ll never be the meticulous carpenter my father was, but that’s not going to stop me building a raised garden bed following these easy to use instructions in the book. I’ll try not to lose any fingers with the circular saw, but I do expect some less than 90 degree joints and a few splinters!

If you having been wondering how to do some small gardening or DIY projects, whether you live in a unit with one small verandah (there are some great small/vertical garden projects in the book), have space for a veggie patch but don’t know where to start or are looking for some simple projects to get the kids interested in nature, where food comes from and eating their veggies, this book is for you.

So even if you’ve never picked up a screwdriver, go buy this book, it’s a simple, humorous read and go get started.

Lastly, don’t forget the key message, it’s more important to get up and do something, rather than let the fear of failure or fear of it not being ‘perfect’ stop you. Grab the book (or find a simple project online), find something that could work as a pot, drill or poke some holes in the bottom, buy a bag of potting mix and a basil seedling from the local hardware store/nursery and get started! As the authors’ finish their introduction :

Let’s abandon the anxiety and potential humiliation and get a little excited. Remember, there is no limit, only more to explore.

It’s the weekend – Everyday Carry (EDC)

So it’s the weekend and as this is a legal and lifestyle blog, while I’ve been fairly light on in terms of legal issues so far a whole 24 hours in, it’s time for something lifestyle related. Today it’s a post on Everyday Carry (EDC), a term you may or may not have heard of.

So what may you ask is EDC? Wikipedia explains it as : (

Everyday carry (EDC) or every day carry refers to items that are carried on a consistent basis to assist in dealing with normal everyday needs of modern western society, including possible emergency situations.  Some of the most common EDC items are knivesflashlightsmultitools, wallets, smartphones, notebooks, and pens. The type and quantity of such items may vary widely.”

Here’s a very good primer – .

EDC is not just for outdoors types or those interested in guns and knives, despite the requisite pocket knife being in most EDC kits and the occasional handgun (not in Australia!).

I’ve discovered EDC has become something of a web phenomenon and in line with my own interests in design and branding, very much design and digital orientated. It is a very popular topic on social media including Pinterest (e.g. and Instagram (

As a great example of the blending of design and EDC, take a look at The New Artemis website here  : . It’s not just a male thing either, the New Artemis site is run by a female

Lastly, EDC is not just about contents, the tray you put your EDC in at home or at work is equally important, see and . I’ve seen  Hermes tray with EDC contents in my travels.

What is in your EDC? Feel free to comment below. A cool pic of mine to follow, once it is complete (and I when I have a nice tray!)

Next time, minimalist wallets and similar, an EDC staple!

Design lead law

Yesterday I caught up with a long term client and friend, Chris Moody ( who is a leading branding advisor and designer, with a particular focus on design led thinking. We spoke about the challenges facing the legal industry. It’s always useful to talk to someone outside the legal industry about how they perceive the industry and law firms in particular. While not rocket science, we spoke about the changes in clients’ buying of legal services, the move away in some areas from large law firms, the need for flexibility across all areas of legal service and more particularly, the need to put clients first and to think outside the box.

Why do most legal service providers just provide legal services? Legal services are an enabler not the main game for clients, but too often those services are provided in a  vacuum without regard to commercial realities or the other services that might be relevant. We have already seen traditional and perhaps obvious bolt on services such as accounting and finance,  but why not design, coding, project management, HR and other less obvious services? Why not a coding company that provides legal services?

These are some of the issues I hope to explore in this blog and I welcome your comments and thoughts. My two cents is we are at a turning point in the provision of legal services and the traditional big firm model while still appropriate and indeed necessary in some areas, will face continued pressure and will need to innovate to face the coming (and current challenges). Nothing new there I know, but my cards on the table.

More nimble providers have significant opportunity in front of them, but it’s more complicated than just replicating a big law structure on a smaller scale – there needs to be some unique selling proposition to succeed. Part of that equation is listening to what clients want and providing that, rather than a one size fits all “here is what we think you need” approach. Actions speak louder than words.

So, watch this space. We are already seeing and will continue to see the rise of very different law firms that may not even look like law firms. Take a look at for starters. Watch this space!

Welcome and first post!

Welcome to LegalLifestyle, a blog on life and the law by lawyer/attorney, Malcolm McBratney.

All the “how to start a blog” sites put it quite simply, register a blog and start typing, so here goes…

As a technology lawyer of some 20 years plus standing, I thought it was about time I hopped on the blog bandwagon. A little late I know. I’m certainly not on the bleeding edge here, let alone even a late adopter. My idea behind this blog is after 20 plus years in legal practice, predominately in technology law and at a time of great change in the legal and professional services industry, there is a space for some commentary on the legal industry along with broader legal and lifestyle issues.

I will be blogging here on a regular basis on issues that affect the legal industry and also business generally, but also I’ll take the opportunity of this platform to blog on life and lifestyle issues too. Time will tell if that is of interest to readers and hopefully followers!

So welcome to LegalLifestyle. In an attempt to get more than one post on my blog I’ll finish this first post here and start some real content in a new one. Welcome! Best, Malcolm