Fordham 25 (Report 3): 25 Years - where have we been and where are we going?

The "25 Years" panel

After a short break, another blockbuster session took the stage at Fordham.  This time a retrospective on what has happened in IP in the past 25 years.

Sir Robin Jacob says that IP is generally going in the right direction save for some exceptions, in particular patent law which is coming under populist pressure.  Copyright law has tried to adjust itself and has become overprotective (as often IP laws can do).  There will need to be sensible policy making in the field of IP.  In relation to making new law, Robin thinks that IP legislation is done on the hoof without serious discussion.  The biggest change Robin identified in the past 25 years is China and their force in the rest of the world.

Isabella Fu

Isabella Fu (Microsoft) stated that there has been a lot of concern about patent eligibility especially on a technical effects perspective (which is showing some convergence between the US and Europe).  In the patent space, things are headed in the direction of global convergence which makes decision making easier.  Isabella expressed some concern on the divergence in copyright between Europe and US.  Isabella also predicts that there will be more copyright and trade mark trolls.  She also said that in the area of patents you have to recognize that the change in stakeholders have skewed the debate.  Stakeholders include those who may not be as well educated or experienced in that area (see John Oliver) but have a lot of power.  With respect to China, Isabella commented that every few years people say there will be a huge explosion of litigation in China.  Isabella says she has not seen that.  Instead we still have an explosion of litigation in the US and despite that numbers have been down a little bit, they are still very high than where they are a couple of decades ago.

Jane Ginsburg (Columbia Law School) commented that there has been increasing attention on choice of law and choice of forum.  There has also been a supranational phenomena - IP being normally territory (giving rise to treaties and choice of law) - but domain names are not and so mapping those onto national trade mark rules is challenging.   Jane considers that the notion that "we are alone in the world" is a very US centric, but other countries discuss and cite each other's decisions.  If anything is clear with the present administration is that Trump likes trade marks.

Justin Hughes

Justin Hughes (Loyola Law School) continued stating that IP issues are exploding into other forums such as WTO, WHO, access to medicine and Convention on Biodiversity.  IP used to be a backwater and now its center stage.  Hugh challenged that these groups really do not have that much impact as there is very little room given social media and other more powerful forums.  Justin says that WHO does have a role and are a real player.  Justin, in emphasizing the Berne Convention's role, says that the three-step test is live and well across the world (including in some respects in the US).  For the US at the moment, for the international team and the team doing international IP work, it is a very frustrating time as there are a lot of things going on in WIPO but they are paralyzed.  They have very little guidance from the current administration and are fearful that whatever they do will cause ire from a mercurial administration.

David Kappos (Cravath) agrees that IP is generally going in the right direction.  What worries him the most is interference on the part of antitrust regulators on a global basis but also in the US.  It is a bad trend that needs to be stopped.  In the US, we have had many hearings in the House Judiciary in the past 5-6 years looking at the copyright system.  This can result in analysis paralysis.  Congress has in its power the ability to get copyright legislation to catch up to the new technological era, but they can suffer from this paralysis.  Hugh said that there is so much uncertainty in patents so people will not invest in them.  David says there is truth in that.  There has been a significant weakening in the US patent system to the extent that if you want an injunction you go to Germany.  If you want the best hearing for a pharma patent?  You will end up in the PTAB in conflict of the Hatch-Waxman Act.  This is all not counting the shame of the 101.  The US has shot itself in the foot.  A lot of it has come from the Supreme Court, but also the work that we did in the AIA needs to be updated and refined.  The PTAB needs to be adjusted and re-calibrated.  With section 101, the Supreme Court's decisions have been a challenge and lower courts have also struggled with their interpretation.  David is hopeful that the Trump administration will shift back towards pro-IP.  The nominations that have so far come out, relative to the antitrust sector, is a much different tone from the very overt anti-IP approach the antitrust sector has been.

Sir Robin Jacob

Paul Maier (Director, EU Observatory on Infringements of IP rights) mentioned that 25 years ago TRIPS was not around.  TRIPS has heavily influenced the way in which IP law has been made.  It is going in the right direction.  In Europe, there are now numerous (and very loud) discussions about IP policy at the Commission.  When we were making the directives in the early 90s, we had no user group to reach out to - policies were just made.  We now have the ability to evaluate and ask questions.   We have to ask the questions as to why we want to do something - expand IP, increase protection, create exceptions.  42% of the GDP of the European Union is from IP-intensive industries, so we have to justify and ask questions when we develop policies.  It is no longer legitimate to say IP is a fundamental right and that is the end of the discussion - the easy days of making IP law are over.   Paul also considers that the territoriality of IP has been diminishing with regional systems emergence.  China will also continue to be a major trade issue given that 80% of counterfeit goods in the EU come from China.  There needs to be a solution to this, especially given the very serious criminal element of counterfeiting.    

Etienne Sanz de Acedo (CEO, INTA) mentioned there seems to be a general anti-IP sentiment which should concern everyone.  It originates from a combination of issues.  In politics, we are going to extremes and with politicians needing re-election, they can sometimes adopt those extremes without understanding the value and importance of IP.  An example of this is plain packaging.  Etienne considers that IP professional organizations need to be better at organization in lobbying, namely in agreeing the terms together so that European law makers are not faced with 25 organizations saying they agree in principle on an IP issues, but not on the terms.  They need to be better.

Jay Thomas (Georgetown University) says IP moves in a lot of different directions.  25 years ago US was not part of Berne, there was no database directive, IP was on the outside of the legal academy and the IP firms then no longer exist.  It is a different world.   There are a lot more voices and much more dialogue.  Jay is really impressed about the rise of IP expertise in D.C. - politicians are familiar with IP concepts including exhaustion.  That has been a positive trend.  IP law making is no more off the hoof than any other area of law.