With nearly five decades under its belt, WIPO has had its successes and failures, but there can be no doubt that IP rights are more harmonized now than ever before. This year’s WIPD theme is “Reach for Gold: IP and Sports.” While the topic may seem slightly off-mark to some—considering how much else there is to talk about in the context of a global digital economy in which IP rights are becoming both more crucial and increasingly threatened in many jurisdictions—it does underscore the degree to which IP permeates industries and facilitates consumer experiences.
In honor of World IP Day, we asked the experts to weigh in on how far we’ve come in the two decades since the holiday was established, and what the future holds. As usual, there were optimists, pessimists, and those in between. Here’s what they had to say.
In my practice, which is heavily focused in the design rights space, we are going to continue to see more harmonization of practices among the largest offices. Just recently, ID5, the organization made up of the five offices that grant the most design rights, released the results of its initial work towards harmonization in areas including grace periods, priority claims, and remedies and relief for infringement. Work like this will eventually lead to a global design protection scheme that is more uniform, predictable and efficient, and that is nimble enough to evolve as technology rapidly evolves.
The market for IP rights during the first two decades of the 21st century has been dominated by patents. The first decade (through 2011) was one of euphoria: the intermediation of the IP marketplace gave rise to a host of new players and their respective business models. The emergence of the Internet and mobile technology created opportunities for massive patent acquisitions and unprecedented patent enforcement.
The second decade of the 21st century has been characterized by a market “hangover”: the America Invents Act has introduced the Patent Trial and Appeal Board, which had a sobering impact on patent validity; SCOTUS decisions, such as Alice, introduced confusion related to subject matter eligibility; and the general mood is that of uncertainty as to the fate and stability of the U.S. patent system.
The next 20 years will see two other types of IP rights increasing in dominance, both associated with the emergence of data as a key business asset: copyrights and trade secrets. Both types of IP rights do not have the strong legal protection and the large body of case law, compared with patents, but we are seeing that changing with copyright legislation in Europe, and the Defend Trade Secrets Act (2016) in the United States.
World IP Day is a wonderful initiative to sensitize the public to how innovation has changed our lives and what is yet to be accomplished. I hope that not just innovation, but inventors themselves, are honored. These are the people in the trenches who change our world, and we owe them a debt of gratitude. Let’s use WIPD 2019 to research patents on some of the most transformational technologies and take a moment to read and honor the list of inventors.
In the medical area, since 2000, we have seen transformational advances in cell-based therapies like CAR-T and non-engineered adoptive T-cell therapies, the first pharmaceutical to treat HCV, CRISPR for gene editing, new biologic anti-cancer therapies based on discovered cellular pathways, and extraordinary diagnostics and personalized medicines. We have even seen the first clinical trial that shows promise to restore hearing.
Can we give the world a report card on how it is doing to incent more transformational inventions? The U.S has taken a step forward with the appointment of Director Andrei Iancu, but the U.S. Courts continue their march backwards in their unconstitutional actions to reduce patent eligibility. Developing countries continue their trend of ignoring the requirements of TRIPS and the Doha Declaration on the TRIPS Agreement and Public Health by carving out whole areas of subject matter that they say are not patent eligible, most notably medical improvements. China, Europe, South Korea and Japan are on the upswing. So, a mixed bag. We hope by World IP Day 2020, the true 20-year anniversary, we can report these patent eligibility and patentability issues have been solved. Now, that would be a great celebration!
We have made great strides and have faced significant challenges to promoting and protecting IP rights (IPR) worldwide in the past 20 years. Looking back to the mid-1990s, it appeared that we were on the verge of an upswing in strengthening the protection of IPR worldwide. The General Agreement on Tariffs and Trade (GATTT) was completed including a Trade Related Aspects of Intellectual Property Protection section (TRIPS) that envisioned obligations of World Trade Organization (WTO) members to strengthen both the ability to obtain and enforce IPR, with inter-country disputes being resolved at the WTO. Developed countries would be expected to abide by the provisions when national laws implementing TRIPS were passed. Developing and least developed countries were given longer time periods to conform their law to be TRIPS compliant. Additionally, free trade agreements with strong IPR provisions were also being negotiated on a country by country basis. Although problems existed in many parts of the world in obtaining and enforcing IPR, through the Office of the United States Trade Representative and State Department, strong efforts were made to pressure countries with weak systems for granting and enforcing IPR to reform their systems.
In the United States, the Federal Circuit was establishing new precedent in the areas of conditions of patentability and remedies that promoted and protected innovation.
As we moved into the 2000s, the pendulum in the United States began to shift in the reverse direction, with the Federal Circuit and Supreme Court issuing decisions on patent subject eligibility, utility, novelty, non-obviousness, and written description, making it more difficult to obtain patents. In the enforcement area, injunctions were more difficult to obtain and damage awards were reduced based on apportionment. With the passage of the America Invents Act (AIA), administrative trials were introduced in 2012 that have led to high rates of patent invalidations at the Patent Trial and Appeal Board. This has led to reduced patent filings by domestic applicants at the USPTO and a drop in U.S. patent litigation. Now the innovation community in the U.S. is losing confidence in the U.S. system of IPR protection and venture capital is drying up in the United States.
On the other hand, China and Europe have now become the jurisdictions of choice for the innovation and venture capital communities because of greater certainty and predictability of obtaining and enforcing IPR in those regions. The United States is now under great pressure to get back on track in being the world leader in IPR promotion and protection.
In the next two decades, it is hoped that we will finally achieve substantive harmonization of patent laws worldwide and that the pendulum will again swing in all areas of IPR to globally provide a robust system for the protection of IPR. As we move into the era of the fourth industrial revolution, advances in the life sciences will continue, with innovations in further CRISPR applications, personalized medicine and nanotechnology. 5G will pave the way for artificial intelligence, blockchain and internet of things advances that will challenge IPR systems to keep pace with the change.
Perhaps with greater globalization we will eventually move to global systems of granting and enforcement of IPR. Perhaps we will have a unified patent granting authority based on a hub and spoke network of regional offices working in concert sharing resources. We can envision a global judicial regime as well, with specialized IPR courts working in concert. Of course, sovereignty issues will have to be addressed, but that is not an insurmountable task in the world of tomorrow.
Looking back 20 years, like looking forward two decades, reveals the same two patterns: Over time, IP rights can vary within each major country and can also invert between countries. In the US, strong IP rights were cresting in 1999, but declining from 2006 to date, especially patent rights. In the current decade, the United States has traded places with Europe and Asia, including China. Previously, those jurisdictions were narrower on the types of inventions deemed eligible, now they are broader. Previously, they often restricted injunctions after trial, now we do. Previously, they were stingy on damages, now we are. Previously, they were quicker to invalidate patents, now we are. Previously, they imposed compulsory licensing on many inventions, now we do. But the best measure of IP strength is the strength of incentives to invest in expensive R&D in real technology. There, it is generally growing, here shrinking. Money flows follow incentives. As Washington wags say, “follow the money.” Without a basic turn-around here on IP policy, especially for patents, these adverse trends are likely to continue, imposing unnecessary economic harms on our nation. While it may be eventually so, it is not yet too late to avoid the harms by reversing course.
Over the past 20 years, IP has gone from a backwater issue that few considered, to the front page of mainstream press. The attention has brought scrutiny to the industry and created pain in some of our emerging technologies, with unforeseen limitations in patent subject matter eligibility created by the courts, limitations to injunctive relief, aggressive post grant challenges, complicated issues surrounding standard essential patents, the rise of assertion entities and modernizing copyright law for the digital age. But we are beginning to turn the corner! Better quality patents have been providing clearly bounded claims and limiting abuse by aggregators against unsophisticated entrepreneurs. We are developing a more level playing field at the USPTO’s Patent Trial and Appeal Board. We are developing case law surrounding fair, reasonable and non-discriminatory licensing. We have better defined fair use. And we have ongoing discussions on the Hill about patent subject matter eligibility. While we are not likely to see legislation on patent subject matter eligibility enacted, the mere discussions might influence the courts. So, I think we have good reason to believe that going forward into the next two decades we will improve the system to drive innovation further and create more jobs and economic growth.
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