2011 IP Developments Conference: I

Opening this year's annual Intellectual Property Developments round-up conference, organised by CLT, Trevor Cook (Bird & Bird) gave an overview of some of the international developments.  Starting with WIPO, Trevor noted that the almost inexorable upward trend in international filings administered by WIPO, following its 2009 blip, had continued again.  On the copyright side, WIPO had scored an "easy victory" with its treaty on copyright exceptions in favour of visually impaired persons.  However, some countries that are none too keen on copyright are viewed as seeing this as a stalking horse for further exceptions in favour of educational and other uses of copyright-protected works. Work on WIPO's Development Agenda continues apace, though with some rumblings of discontent from those who consider that this is not the course that an IP protection organisation should be taking.  Anxious developed countries should remember that the international order will not change, whatever course the Development Agenda takes, unless they agree to it.

Outside WIPO, there has been plenty going on, both in terms of Free Trade Agreements (FTAs, or "bilaterals") between the US or EU and third countries and with regard to the agreement of the final text of ACTA.  Looking at the FTAs, these have really been driven by the US and deal with numerous trade-related topics of which IP is just one.  At present the EU is negotiating a FTA with Canada, which has attracted criticism in Canada on account of patent linkage..

As for ACTA, which was attacked for its lack of transparency as well as for its content, the final version has jettisoned some of its original material but is still drawing criticism -- even for provisions which were happily accepted when they were incorporated into the TRIPS Agreement in 1994. ACTA is actually quite limited; it does not apply to patents or to regulatory data and does not demand "three stripes" treatment for file-sharers. Even if and when it comes into force, ACTA is deemed to be "entirely in accordance" with the EU's acquis.  


Trevor finally addressed the issues of the new regime for pan-European patents and courts for litigating them.  The Advocates General were deeply critical of the proposals for the court and its oversight by the European Court of Justice.

Taking over from Trevor was Tony Clayton (Chief Economist, Intellectual Property Office), who assured participants that the government spent no money other than that which it raised through its own fees and activities.  Tony gave a fascinating explanation of the government's drive to make IP policy evidence-based.

Tony alluded to some of the research recently commissioned by the late Strategic Advisory Board on Intellectual Property Policy (SABIP), which sought to get a handle on the economic value and impact of IP. This included collating data on the scale of the impact of the backlog in the processing of patent applications. The IPO has also sought to place IP assets within the context of intangible knowledge, so that their capture value can be ascertained at the point at which people pay for them and they show up in the country's Gross Domestic Product (GDP).  Knowledge and research results are now seen as part of the GDP, though branding and design currently are not. The economic impact of copyright is difficult to estimate, but its value is "horribly understated".  Why does this matter? Twenty years ago, tangible investment was greater than intangible investment, but now intangible investment is dominant. The IPO is also interested firms that don't use IP rights (tytoc collie thinks this must mean "that think they don't use IP rights"). Tony commended the research reports on the IPO's website to the audience and concluded by listing the studies in which the IPO is involved, either by itself or with others.