[Author’s note: this is the latest in a continuing series of commentary on practice-area-specific applications of the Hague Service Convention and other doctrines of international law governing service abroad– not only service of process, but other notices and orders as well.]
It happens all the time. I’ll give a lecture or mention what I do at a bar association event, and the colleague I just met will express appreciation for what I do, tell me it’s a really neat niche, and then try to convince himself that our practice areas don’t overlap. I’m here to tell you that, yes, they do. The conversation usually goes something like this:
Sorry, Aaron. I’m a patent lawyer– I don’t do immigration. But thanks for doing that CLE. You’re a funny guy. (Funny how? I’m a clown? I amuse you?) No, I mean I really like how you got that picture of Ned Stark into your slide deck!
Wait a sec, there, pal. First of all… immigration? You’re kidding, right? You did just sit through my lecture on international law, right? Those are not the same concepts. (He’s not kidding, sadly.*)
Second of all (setting my incredulity aside), let’s say you do handle patents exclusively, no visa applications ever. What if some offshore bad guy (let’s call him “OBG” for short) decides that “all your base are belong to us” and starts making your client’s widgets with his own name on them? Your client, who sacrificed an incredible amount of blood, sweat, and tears** to invent– or an incredible amount of money to buy the rights to– the widget, wants to sue. Now.
Well, don’t you think you might have to serve the offshore bad guy? (Yes.) And just how are you going to go about doing that? (Hmmmm. I never thought about that.)
Well, for most of the world, start off by looking up the Hague Service Convention. It’s mandatory doctrine if you need to serve OBG in his homeland.
In all likelihood, you’ll have to set up a translation of the documents– and that’s a big deal with patent cases, so here’s a handy guide on how to keep those costs down.
Then, you’ll have to determine what alternative methods are available.
Then, if you go the Article 5 route, ask the appropriate foreign Central Authority for help.
Last, pray that you’ve filled out your USM-94 correctly. That’s a big one. Very important, the USM-94.
If you don’t get him served…
You’ll have a tough time making the patent-holder whole.
* A huge segment of the practicing bar thinks that international law is immigration law, and immigration law is international law. My local bar association even conflates the two ideas in its committee structure. This is so baffling that both the international lawyers and the immigration lawyers in town have given up trying to convince everybody else.
** Apologies to a certain Mr. C of Blenheim, Oxfordshire. The original quote included “blood, tears, toil, and sweat” but a 1970s fusion band morphed it a bit for brevity.