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IP-Watch Summer Interns

IP-Watch interns talk about their Geneva experience in summer 2013. 2:42.

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The Politicization Of The US Patent System

The Washington Post story, How patent reform’s fraught politics have left USPTO still without a boss (July 30), is a vivid account of how patent reform has divided the US economy, preempting a possible replacement for David Kappos who stepped down 18 months ago. The division is even bigger than portrayed. Universities have lined up en masse to oppose reform, while main street businesses that merely use technology argue for reform. Reminiscent of the partisan divide that has paralyzed US politics, this struggle crosses party lines and extends well beyond the usual inter-industry debates. Framed in terms of combating patent trolls through technical legal fixes, there lurks a broader economic concern – to what extent ordinary retailers, bank, restaurants, local banks, motels, realtors, and travel agents should bear the burden of defending against patents as a cost of doing business.


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    UNIGE Panel Promotes Advantages Of Trade Secret Protection

    Published on 31 January 2013 @ 7:02 pm

    By for Intellectual Property Watch

    Intellectual property professionals speaking at the University of Geneva last week discussed the challenges faced by companies and legislators in the domain of trade secrets. Topics addressed included the impact globalisation has on the protection of trade secrets, the need for an harmonised regime at the European level, and the need to rethink the place of trade secrets in the current international IP regime.

    The discussions were held on 18 January at a conference jointly organised by the Law Department of the University of Geneva and the Association of Trade Mark and Design Law Practitioners (APRAM) – an international association whose stated mission includes representing the interests of IP practitioners and IP rights owners.

    One IP official, speaking on background, presented on the economic value trade secrets represent for companies and elaborated on the risks that innovation has on their protection. He said that since 2000, there has been an enormous evolution in the geographical location of innovation and on the procedures leading to it.

    He emphasised that while historically, research and development was carried out in the North by individual scientists or research teams, innovation now takes the form of an open innovation business model where R&D is outsourced and takes place on a global scale, with people working in networks.

    For the official, this evolution bears negative consequences for the protection of trade secrets. He showed that according to a study by the Organization for Economic Cooperation and Development (OECD), 61 percent of 300 top executives estimated IP theft as the greatest risk of the global innovation network. More than 40 percent saw the loss of control over the innovation process as the second greatest risk.

    Another speaker, Ansgar Ohly, chair in civil law and intellectual property law at the University of Munich, analysed the doctrinal difficulties impeding the European legislature from harmonising the trade secrets regime.

    Ohly defined trade secret law as the “Cinderella” of IP rights in the sense that, “trade secrets are not only protected by IP law per se, but by a complex web of IP law, tort law, unfair competition law, contract law and criminal law.” He also highlighted the fragmented understanding of this notion in different legal cultures from France to Italy, Germany, Spain and the United Kingdom – each regime having a different model to deal with trade secrets.

    Despite this fragmentation at the European level, he said that, “given the importance of cross-border dealings affecting secret information, there is a case for harmonisation.”

    Ohly’s presentation also questioned the place of trade secrets in the IP regime itself. While the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) does refer to trade secrets in Article 39.1, this provision only targets unfair disclosure and aims at repressing unfair practices. On the contrary, Ohly insisted that “the information of a trade secret can be freely used by honest users.”

    As highlighted by Ohly, from this international protection arises the question of ownership over trade secrets. The protection as expressed in the TRIPS Agreement is only against unfair disclosure and does not confer any property rights on the trade secret to the company knowing it. There, one may see a deep difference with other types of IP protections where an exclusive property right is given to the right holder for a defined period of time.

    Panellists agreed that trade secrets protection is indefinite and perpetually lasts until someone discovers and exploits the secret. The secret may therefore never enter the public domain, which is, for many observers, against the social function and progress-oriented nature of IP rights.

    Many panellists stressed the need to protect trade secrets for the economic development and prosperity of companies. However, it could be argued that the presentations overly focussed on the need for protection of trade secrets without focusing on the possible negative consequences that this protection has for development and knowledge-sharing.

    For instance, an audience member shared his view on the negative social cost sometimes associated with trade secrets. He argued that trade secrets often lead to misallocations of time and resources because if innovation is indefinitely kept secret, competitors will duplicate resources like time and money to reach the same result.

    Ohly highlighted the existing countervailing interests at stake in the trade secrets debate while stressing the public interest in disclosure and insisted on a needed balanced approach to trade secrets.

    He highlighted the complementary nature of trade secrets and patents. Trade secrets should not undermine patent policies but they add to IP protection as “companies need a laboratory zone,” he said.

    He relied on a US Supreme court decision to express the judges’ opinion on this question. In Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974), the court acknowledged the legitimacy of trade secrets while stating that, “The federal patent policy of encouraging invention is not disturbed by the existence of another form of incentive to invention such as trade secret protection, and in this respect the two systems are not in conflict.”

    Tiphaine Nunzia Caulier recently graduated with a Master in International Law from the Graduate Institute in Geneva and UCLA School of Law. Through her work experiences and academic interests she has specialized in international trade, intellectual property, and public health.

     

    Tiphaine Nunzia Caulier may be reached at info@ip-watch.ch.

     


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

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