by Eviatar Aron, Israel & US Patent Attorney

Since the advent of the internet and email, client-attorney communications have evolved. From written letters sent by post, then telex and fax (pre-Internet), the e-mail has become the preeminent mode of communication, even to the extent where formal letters on official letterhead and bearing a physical signature were (and in many cases still are) sent by email. 

More specifically, even formal communications have used email, requiring  a formal email address associated with attorney or his/her firm. This has allowed patent attorneys and attorneys to maintain an accurate record of the incoming and outgoing communications with clients and colleagues, normally by use of workflow software designed to store digital documents in a way that is recognizable as being analogous to the traditional paper filing systems.

Over the last couple of years as technology has been changing, and especially since smart phones have become more prevalent, the manner in which people communicate has also changed. More and more personal communications, and even business communications, have migrated from the relatively ‘formal’ email to informal, instant and arguably more friendly messaging applications, be this through SMS texting, Whatsapp®, Facebook® messenger, direct messaging on Instagram® and Linkedin®, to name but a few. 

Our own experience has been that some of our clients do not even check their email very often, either because it is so full and thus unmanageable, or simply because they prefer texting. We have found, therefore, that for these clients the only way to ensure they receive updates of time sensitive matters is to supplement our emails with text messages.

Some of the obvious advantages of texting are:

  1. Quick and easy communication– Since most people never leave home without their cell phone and considering how meticulous people are about checking their messages, it is very likely that both a client and their attorney alike will quickly see an incoming message; they will also usually respond quickly, if not immediately(!). This is especially useful in time sensitive situations, for example, when a quick response can mean the difference between allowance and abandonment and/or the risk of additional expenses during prosecution.
  2. Immediate verification that a message has been seen – Most messaging services have a verification system that lets the sender know that a message was received and seen by the recipient. For example, Whatsapp’s double checkmark indicating receipt of a message turns blue when the message has been viewed by the recipient.
  3. File transfer – Large files can be sent quicky and efficiently to recipients.

On the other hand, there are still a few drawbacks and concerns that need to be considered before texting can become a mainstream and acceptable way of formal notification in the provision of services:

  1. Centralization – Everybody has their preferred texting medium, be it SMS text, Whatsapp®, Facebook® messenger, direct messaging on Instagram® and Linkedin®, etc., as service providers we have to accommodate the client’s preferred manner of communicating. This ends up with us having to juggle multiple applications and remembering with which one it is best to communicate with a particular client. At the time of writing this, I have not found an application or service that centralizes receiving and sending messages from the various messenger services in an organized and convenient manner.
  2. Message Saving – Emails can be easily saved and identified file computerized document management system. Currently, text messages may be stored as part of a chat history. However, separate, a specific part of the chat cannot be saved as its own, individual file. The only solution that I am aware of, is to take a screen shot, and to save that as an image which can then be saved with appropriate labelling. This is very cumbersome, but seems to be the only way to store such an exchange of messages in a manageable, searchable form. 
  3. Professionalism – Email communication, for the most part, still requires a certain level of professional conduct. Texting, on the other hand, tends to lead to an informal manner of communication, to say nothing of creative ways of spelling and the use of emoticons and other graphics intended to convey an idea or a feeling(!). This can sometimes result in interactions between a patent attorney and a client that may be perceived as less than professional and, at least from our side, namely, that of the professional service provider, may undermine the services we provide and the advice we provide. 

As digital technologies continue to evolve, our profession will undoubtedly adapt. This will, however, require a corresponding evolution of the systems that support such changes, as well as a recognition of new modes of communication as being regarded as being of a “professional” standard.  

We have not yet reached that stage, however, and while text messages can be used to support the use of emails as the method of formal and professional communications, the latter, namely, the use of emails, still remains the ‘gold standard’. It may be worthwhile revisiting this in a few years so as to see what, if anything, has changed on this front. 

Watch this space!

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