Fordham Report 2014: IP Leaders

"IP offices cannot solve
every problem ..."

The second session at Fordham's annual IP conference focused on "Intellectual Property Leaders", indeed starring quite a few of them. Katfriend António Campinos (President of the Office for Harmonisation in the Internal Market, OHIM, Alicante) opened with a review of OHIM's activities and sources of inspiration. António spoke of the value of IP-driven industries to the EU's internal and external trade, and of the discovery that such a large segment of IP-intensive employment related to the design sector. António then mentioned the importance of IP databases, especially when they are compatible with one another, and the need for cooperation between offices in Europe and those in important markets beyond Europe's borders -- and particular in jurisdictions like China and Japan. "We must help search engines do their work", he emphasised. The European Trade Mark and Design Network was singled out for its work in encouraging convergence where there was no standardisation or harmonisation. While IP offices cannot solve every problem, there's plenty they can do -- and free-of-charge searchable design databases fall into this category.

OHIM's credo

Hugh Hansen asked whether the same degree of design creativity and commercial activity would not continue even if there were not a greater level of design protection, since most SME design carries on in situations where the designers don't know of, use or have such protection.  With disarming honesty, António answered that he didn't know, but then gave quite a cogent answer based on the advantages to all sectors of the design community to knowing what prior art already exists. He added that the biggest obstacle to the success of his office is a lack of belief.  Believing is so important, particularly believing that it's better to have 20-odd countries having the same system for their trade mark and design protection than to quibble over the precise minutiae of how the system works.

"Government officials
ARE the IP system ..."

Another katfriend, David J. Kappos (currently of Cravath, Swaine & Moore LLP, New York, but still remembered for his stint at the helm of the US Patent and Trademark Office), managed to avoid telling Hugh Hansen why he left that august post. David's presentation featured a letter to Abraham Lincoln -- the only US President to hold a patent -- which sought to update him on the developments that had taken place since his death, together with the challenges facing the utility of the patent system. Today's Patent Wars are nothing new, he observed, since they have occurred at regular intervals when new and innovative products have been launched. In reality, the rate of patent litigation in the US has remained relatively constant, if statistics are anything to go by.  Right now the Great Patent Debate has been based more on rhetoric and allegation than on the objective assessment of facts.  IP was in truth "a giant investment savings plan, when we all pay a little now in order to get the benefit later".

Capacity-building is important
once an IP right is granted

The third katfriend in this session was Francis Gurry (recently nominated for reappointment as Director General, World Intellectual Property Organization, Geneva). Francis thanked Hugh for inviting him to participate in what he described as "the Davos of intellectual property conferences", then summarised the continued rise in filings and IP-related activities that demonstrates the confidence placed in the system by its users. WIPO's international filing activities provided a firm basis for facilitating international protection within a rule-based system. Encouragingly the rate of increase of use of the Madrid, Hague and PCT systems has outstripped the rate of increase of GDP. WIPO has held its fees constant for the past six years and looks forward to holding them steady.

Global IP rules are necessary in order to establish a shared vision, Francis said [Merpel's a little surprised by this. She thought the best way to get global IP rules was to establish a shared vision ...]. Perhaps this is what is needed for the keenly-awaited Design Convention, which is only a little way short of conclusion, despite the differences that have prevented this happy outcome so far. Francis concluded by (i) identifying trade secrets as "the elephant that is not in the room": high mobility of skilled labour, the increased need for chains through which confidentiality passes and the capacity of modern technology to intercept and obtain secret information make the subject important and topical -- and it's certainly not a subject that should be discussed in secrecy, (ii) mentioning the importance of addressing the needs of developing countries and (iii) the need for capacity-building once an IP right has been granted.

Hugh Hansen wanted to know if WIPO -- ie multilateral reform -- was our best chance for achieving the next level of IP law. Said Francis, "yes" (well, he said a bit more than that), adding that the question was an academic one since it was already happening on an ongoing basis.  We do however need a solution to the issue of technical knowledge if we are to retain the support of developing TK-rich countries in leading normal IP to the next level. "There's something in TK which we're not capturing in the IP system", he added [David Kappos added at this stage that "the economics of TK remain to be worked out"].

It was then the turn of the Designated Audience Members to have their say. Mihály Ficsor (President, Hungarian Copyright Council; International Legal Consultant, Budapest) and Shira Perlmutter joined the discussion. Said Shira: we have to be pragmatic and flexible when we approach our current problems, and not be dogmatic as to ends to achieve or means of achieving them. António Campinos agreed, adding that we have all taken the virtues of IP for granted. Now we have facts and figures to enable us to assess the performance of IP rights,. we can look at the cost of not enforcing it in terms of unemployment, loss of tax revenue and other downsides. Maria Martin-Prat (Head of Unit – Copyright, DG Internal Market & Services, European Commission, Brussels) then spoke about getting to the next level of IP protection: there's nothing wrong with intervening policywise, she said, but it's difficult to do so in a rational manner.