IP litigation and enforcement: the pendulum effect -- and a new event

Over the years, the incidence of IP enforcement has reflected the swing of a pendulum.  When economies are booming and markets flourish, it’s this Kat’s impression that IP litigation tends to be relatively quiet. This is because any decision to go to court is at heart a business decision that involves expenditure and a prediction of the likely return. If you get a better return from marketing or selling goods and services than from investing in court actions that are of uncertain outcome and are subject to appeal, it makes sense to litigate only when it’s truly worthwhile.  However, when economy is in recession, growth is hard to detect and there is a greater focus on retaining existing markets than in expanding into new ones, the rationale for litigation is quite different.  Reduced consumer spend and squeezed profit margins make non-litigious investment less worthwhile, competitors find that encroaching on another’s market space is a better commercial strategy than developing their own, so money spent in securing the integrity of one’s market until recovery sets in may produce a better yield.

In times of plenty, IP litigation makes way
for less stressful, more enjoyable pastimes

This pendulum is generally reflected in the content of conference and event programmes. In times of plenty, themes based on innovation, IP exploitation, new product and brand development and so forth are more prevalent, while in times of hardship the emphasis is more on battening down the hatches, on making sure your rights are safely registered and on cost-effective litigation to protect them.

Unusually, the past couple of years have seen some unusual behaviour on the part of the pendulum – it has failed to oscillate back towards the themes of exploitation and commercialisation. True, while some events and organisations are focused on growth-related topics, a preoccupation with IP litigation has remained centre stage, on both sides of the Atlantic.  In the US, discussion has focused on the new regime for patent enforcement and its effect in dampening enthusiasm for unmeritorious claims. Coupled with the relatively restrictive (or realistic) ruling on patentability of software in Alice v CLS, the question is asked whether this is a sea-change or merely a blip in the annual statistics, which will soon be corrected by regression to the norm.  In Europe, ongoing work on fixing the procedural rules and institutional infrastructure of the Unified Patent Court has provided a major focal point for litigation interest. 

With so many Office actions to process, 
OHIM has now taken to cloning ...

But patents are not the only IP rights in court right now.  Particularly in Europe, the broadened scope of trade mark registrability and the ease with design rights can be obtained has helped to create a vigorous culture of office actions, in which the rights of trade mark applicants and owners of earlier rights are fought out, as well as combat between conflicting trade mark and design rights.  Copyright, too, is increasingly litigated as the initial hopelessness that pervaded the entertainment sector following the explosive growth of internet use has been counterbalanced by the development of cost-effective and legally effective enforcement policies.

Now, “IP litigation and Enforcement” just happens to be the subject of the next in IQPC’s series of IP events.  It’s coming up next month, on Thursday 2 and Friday 3 July, to be precise, and takes place in London – the epicentre of a great deal of IP dispute resolution and enforcement activity.   You can download the event Agenda here for full information on the speakers and sessions.

"Not Brussels again!"

The programme is, as one might expect, a full and cogent one, dealing with such important and persistently unpopular subjects as the Recast Brussels Regulation I (Regulation 44/2001, now 1215/2012) – why do so many of this Kat’s friends avoid it – and the equally important but easier-to-understand IP Enforcement Directive (2004/48). Corporate speakers from Blackberry, Google, Nokia and Sky are among the attractions in this full and thoroughly demanding programme. Full details of “IP Litigation and Enforcement” can be accessed from the event’s website at www.iplitigationsummit.com. The organisers have informed this blogger that preferential rates are available for those who contact Christopher Wagland on +44(0) 207 036 1300 or email him at enquire@iqpc.co.uk, quoting the reference ‘IPKAT’.