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Fordham IP Event A Firehose Of Current IP Legal, Policy Debates

NEW YORK – The annual Fordham Law School IP Law and Policy Conference held last week offered an intensive two days of in-depth legal issues in intellectual property, with a mix of perspectives from representatives of intergovernmental organisations, governments, courts, industry, and a smattering of public interest advocates.

Public Perception of IP

A recurring theme to discussions at the 24-25 April event was how to recover popular support for IP rights. Rights holders repeatedly rued the absence of backing for an IP system they see as so favourable to innovation, jobs and economies. But there was little recognition on their part that the sceptism that has arisen among the public may not be entirely against IP in any form, but a pushback against the steady expansion of IP rights in recent years.

For instance, Hon. Wim van der Eijk, vice-president Directorate-General Appeals, chairman of the European Patent Office Enlarged Board of Appeal, said it is now time to put more attention creating a global patent system. The question, he said, is whether all these investments (in patents) are leading to the desired outcome. In Europe, public perception is more critical than in the United States, he said. The tools available to the EPO to address the question are greater efficiency and quality.

OHIM President António Campinos said that a look should be taken at the cost of “non-IP,” saying that looking at the positive and negative sides together can explain the effect, for instance, of illegal downloading on jobs. “Kids can understand,” he said, “that might be mom’s job, dad’s job.”

Shira Perlmutter, chief policy officer and director of international affairs at the USPTO, said good data is needed, as well as a process is needed where “everybody can be heard,” and a better job is done of generating “public legitimacy” in order accomplish goals. The hard fates of the Anti-Counterfeiting Trade Agreement (ACTA) and the US SOPA and PIPA bills mean that IP proponents need to make sure people understand what they are doing. She mentioned the need to be “pragmatic about moving forward,” but that she is optimistic about moving forward.

Separately, in response to a question about the long vacancy at the head of the USPTO, Perlmutter said it does make a difference to have a Senate-approved leader of an agency, but that the agency has effective leadership in Deputy Director Michelle Lee, and the day-to-day work is not affected.

For her part, Michelle Lee, in a keynote speech highlighted the importance of transparency. She described a number of recent and ongoing activities at the office, and also discussed at length the bargain inherent in a patent, in which an exclusive right is given in exchange for disclosing key details of an invention. She said the “light of transparency” powers a greater economy.

Mihály Ficsor, president of the Hungarian Copyright Council and former WIPO official, said on a separate panel that eliminating IP protection my not always increase access. He referred to the Kirtsaeng case in the US (IPW, IP Law, 19 March 2013). http://www.ip-watch.org/2013/03/19/us-supreme-court-applies-first-sale-doctrine-worldwide/ An action may decrease the price in the US but lead to increased prices in developing countries, or not selling in those countries at all, he said. At another point in the conference, Ficsor said, “ACTA – oh, what a word, eh?”

Stan McCoy, the former US Trade Representative negotiator on the Trans-Pacific Partnership agreement (TPP), now a lobbyist for the Motion Picture Association in Brussels, said it is in the US interest to have a global IP system that looks like the US system. US companies that do well under the US system tend to do well under the global system if it looks like the US system, he said.

Earlier in the day, McCoy told the conference that he sees a “low probability” of concluding the TPP before the US congressional elections in November. The TPP ran into concerns over its IP chapter, which some saw as confirmed when a version of the chapter was leaked on Wikileaks last autumn. McCoy did not specify why he tied the TPP’s timing to Congress, but some have linked TPP’s prospects there to efforts to pass fast-track trade promotion authority, in which Congress limits itself to a yes-or-no vote on any trade agreement brought by the administration.

He was positive on the EU-US Transatlantic Trade and Investment Partnership (TTIP), saying that the two sides “point in different directions on geographical indications,” but that a “solution is at hand” now that they are sitting down to discuss their differences. “I think there’s plenty of opportunity for greater coherence ahead,” he said.

On transparency, McCoy it is good for trade negotiations in many cases. For instance, it is easier to talk about a text once it is made public. More can be done on transparency, he said, but there is going to be “a certain amount of green room negotiations,” referring to closed door talks between a select few.

McCoy also said what happens after a negotiation is especially important, what with getting approval of elected bodies, and implementing the agreement. He suggested, for instance, that WIPO put significant energy into implementation of its recently completed treaties (Marrakesh and Beijing).

And McCoy said the climate of negotiations has crossed the line from civility to a kind of hostility, reaching the point of death threats to negotiators’ homes, Christmas carolers at their homes to sing obscene songs, or other problems, some of which happened to him.

Multilateral Level

A number of speakers addressed issues at the multilateral level. World Intellectual Property Organization Copyright Division Director Michele Woods told the conference about recent agreements and activities at WIPO. These recently concluded agreements serve as examples that efforts at the multilateral level are working, she said.

Pedro Velasco Martins, deputy head of unit, Intellectual Property and Public Procurement in the European Commission Trade Directorate General, discussed EU efforts on IP. He said 2004 was a starting point on trade-related IP, and in 2010 they asked for it to be assessed by external consultants. From that, they strategized the revising of the system, and there are several issues.

One issue is public participation in IP, he said. “IP has gained a political dimension,” he said afterward. “It’s undeniable.” Every agreement has to be well discussed.

Another issue is the need for good data. He referenced the European Observatory on Infringement of Intellectual Property Rights at the EU trademark office, and pointed to two studies from the EU Office for Harmonization in the Internal Market (OHIM) provided in the conference materials.

One study, a joint project with the European Patent Office, is titled, “Intellectual Property Rights Intensive Industries: Contribution to Economic Performance and Employment in the European Union” (September 2013). The study confirmed the justification for including IP in trade negotiations because of its significant contribution to jobs and the economy.

The second study is “European Citizens and Intellectual Property: Perception, Awareness and Behaviour” (November 2013). Among other things, this study showed an age gap in perception of IP, where a more negative view can be seen by younger people. But “at the same time, this will be where people will find jobs,” Velasco Martins pointed out.

He also discussed the multilateral level, noting policy efforts at the World Intellectual Property Organization and World Trade Organization. He mentioned their other functions, such as WTO dispute settlement procedures and WIPO technical assistance. He further mentioned bilateral and regional agreements. And he said the EU has just launched a consultation on investor-state dispute settlement (which allows private entities to sue governments for taking policies they see as harmful to their commercial interests).

OHIM President António Campinos participated in a panel entitled “Intellectual Property Leaders” with WIPO Director General Francis Gurry and former US Patent and Trademark Office Director David Kappos (who is now at Cravath, Swaine & Moore in New York).

Campinos mentioned progress on image search, saying it is for the search engines to do the work, and then there are technical and administrative obstacles to be addressed. Work is being done at the EU level to come up with a common approach for a database, he said.

OHIM, based in Alicante, Spain, handles trademarks and designs. On the latter, he said the absence of a global search tool is holding back the power of designs. He said it is important for developing countries too, as WIPO figures show the majority of designs are now coming from middle-income countries.

During the conference, there were several references to the relative absence of design protection in the fashion industry, which some said is too fast-moving to make such protection useful. Campinos said industries are increasingly seeking “fast-track” protection, so that might become of interest to fashion. But he said, whether national or international trademark and design protection is needed should not be up to governments, but rather industry.

Kappos read out a creatively worded imaginary letter to US President Abraham Lincoln, making points in defence of a patent system that allows for patent assertion entities, known as patent trolls, to exist. The letter, which comes as Congress is considering patent reform aimed at reining in the so-called trolls, recalled that similar types of threats to the patent system have always been there (for instance, the “patent sharks” of Lincoln’s day), and that many of the most important technologies witnessed high-stakes patent wars (such as sewing machines, radio, automobiles, incandescent light). What is needed, he said, is good evidence and facts, not “lobbying epithets” like “trolls.”

Kappos acknowledged that there is a problem, and that “appropriate” legislation is essential. But, he said, “Over-reaction is not called for.”

No Free Lunch for Kappos, But Free Pass for Gurry

Moderating the panel was Fordham Law Prof. Hugh Hansen, the master of ceremonies for the event. Hansen, as well as an audience member, repeatedly pressed Kappos on why he had left USPTO, which still has no appointed director since Kappos left over a year ago. Kappos deflected the questions.

But Hansen and the audience gave a complete pass to Gurry, despite the high-profile questions raised about his behaviour and handling of issues at WIPO by the de facto number two at WIPO, Deputy Director General James Pooley, a former top US patent attorney.

Gurry, for his part, after referring to the Fordham event as “the Davos of IP,” gave a straightforward speech on the global IP system. He said the IP system is more complex than 20 years ago, and what is needed for WIPO is to look at the value-added of an international organisation.

Gurry praised the hard work of international treaty negotiators, industry and civil society, some of whom were in the room. He said that it is hoped that this year WIPO will conclude a design law treaty, and noted as has been pointed out, for instance, that a significant amount of the revenue generation of Apple was from design.

He also mentioned WIPO members’ efforts to negotiate international instruments on the protection of broadcasters’ rights, and on traditional knowledge, as well as a “very interesting” discussion on exceptions and limitations to copyright for libraries and archives.

An “elephant not in the room,” he said, is trade secrets. Issues are global value chains, which require sharing of information, human resources, and the increased vulnerability of systems, he said, adding that it is a question how to engage in discussion about issues of national security at the international level.

Other points Gurry made were to stress the importance of global platforms and infrastructure, and the need to ensure that with developing countries, nobody is left behind in the fast-moving IP world, making capacity building an important challenge.

Gurry put it to the roomful of practitioners to say more about what is needed at the multilateral level. And he said an area to be grappled with is “coherence,” where the systems at various levels fit should ideally fit inside one another like a Russian nesting doll.

In response to a question, he warned that not getting a solution on traditional knowledge issues at WIPO could put a lot of other things at risk.

Another speaker on multilateral issues was Wolf Meier-Ewert, counsellor in the WTO Intellectual Property Division. His remarks will follow in a second story on the conference.