The IP Corporate Strategy Summit began with a panel on how businesses are affected by industrial changes within their sector and what IP strategies can be used to address the new challenges.
Micky Minhas, vice president and associate general counsel for patents at Microsoft in Seattle, said there are three questions IP attorneys are asking in his field:
• Should works created by artificial intelligence (AI) be treated as authorship?
• Should copying ‘works of authorship’ to train different AI remain in the control of the copyright owner?
• How should companies protect data?
He used the burgeoning autonomous vehicle sector as one example of where many of these questions remain unanswered.
“To make autonomous driving viable, there need to be millions of images to make these types of decisions and recognition that the car needs to drive autonomously,” he said.
The problem arises when companies look at who owns the initial image and try to determine whether or not it is a copyright violation if the AI uses an image to learn how to identify the difference between a statue or a person, for example.
Ken Seddon, CEO of Lot Network in Arizona, expanded on the idea of sector convergence when he said that new technologies are blurring the lines between industries. “Banks are becoming cloud companies, software companies are becoming car companies, car companies are becoming software companies.
“The sources of risk for your IP used to be your competitors. Now it is your suppliers. An example is how a car company needs telecoms to make the car work. The convergence of technologies is making IP counsel wonder how they can protect different wireless standards,” he added.
The panellists agreed that one big problem for the patentability of new technologies is eligibility standards. “Patent offices find these technologies to be too abstract. When you draft a patent in the US you also have to think about how it will look at the EPO,” said Rob Calico, vice president of IP and litigation at Arm in California.
Industry case studies
The morning session concluded with case studies from different industries. Martin Yagi, IP manager at First Light Fusion in the UK, said trade secrets play a central role in his IP strategy. “Trade secrets are the octopuses of IP because their tentacles go all over the business. The ultimate IP is a trade secret.”
He advised conference members to do a valuation of all trade secrets and be sure that legal measures have been put in place to best protect them.
He said that part of his role involves a lot of crystal ball gazing to see what patents will be essential to the development of his company. “Valuation of what your IP is worth for a tech company is difficult. You could have an invention worth billions, or you could have one worth nothing,” said Yagi.
When money meets IP
The first session after lunch focused on the financial aspects of IP, such as funding for IP strategies and the way investors track and measure success. When asked how IP is treated as an asset and how businesses’ approaches to it are changing, UKIPO chief economist and innovation director Pippa Hall said organisations are still not thinking of intangible rights as assets.
“We have been talking about IP financing for a long time, but has it really moved on? Businesses know about IP but do not think of it as an asset because others are not treating it as an asset,” she said. “There is valuation happening but we need to work out how we get businesses to think about it and use it for attracting financing.”
Jeremy Holmes, head of IP at the IP Group in London, added that the problem with using IP to garner investment is that many non-IP attorneys often see risk in intangible assets.
“When they have a bit of knowledge, they increase their assessment. Pending patents, for example, which most of us here would look at and say they could be granted at any time, present a risk to financiers who surmise that they may not be granted in the end,” he says.
“It is a matter of understanding the process and having the confidence to say: ‘You must trust our IP advice.’”
New technology and the way it can be used to improve IP processes was also a big topic of the day – specifically the way IP offices are using AI. Birgit Clark, lead knowledge lawyer at Baker McKenzie in London, pointed out that the offices are exploring the use of AI for automatic classification of patents and goods and services for trademarks and prior art searches.
“There is a fair amount of scepticism, however, when you talk with Francis Gurry at WIPO about AI,” she said.
Panellists also discussed the possible use for blockchain in IP. Kevin Fournier, IP lawyer at IBM in Winchester, UK, noted that bl
ockchain could be used to capture evidence of use for a mark and timelines of use as well as to register licences and security interests – which is very useful if you are doing due diligence.
“You could use blockchain to record the contributions to a certain technology. Y
ou often have to prove who invented what at what time,” he said. “Today, we use lab notebooks and additional records – but if you are working with a bunch of parties and you all input your contributions together, it would be clear who created the technology and when.”
Increasing equality and diversity
Anna Holmberg, manager of The Vera Project at the Center for Intellectual Property, spoke about diversity and inclusion in IP, arguing that despite the many efforts being made to embed diversity and inclusion into business mentalities, not enough is being done to open up opportunities to women and minorities.
She said that if improvements were to be made, businesses would have to start taking a different approach to promote gender equality and the shared control of resources and decision making power.
“Many in this room will say that, of course, men and women are equal and that they do their best to hire women because they see no difference between the two,” Holmberg said. “But [there is] evidence to the contrary – and that is likely the case because of unconscious bias.”
Turning towards trademark strategy, panellists discussed new strategies to commercialise brands and ways to resurrect retired ones.
Meena Sayal, the former global brand protection director at Unilever, pointed out that big businesses that operate in numerous countries should be careful not to focus too heavily on internal profit levels and leave gaps open to parallel traders or counterfeiters.
One example was a variant of Unilever’s Fair and Lovely product called Anti Marks, which was sold in Kenya alongside the main product. The company decided that the variant was not reaching the minimum profitability level and instructed Kenya to withdraw it from the market.
“But that was a communicator to consumers – it was an incredibly popular product. That left the door wide open and the market was subsequently flooded with parallels and fakes,” she explained.
“Immediately there was a market opportunity that had not been deemed profitable enough for the legitimate company, but that immediately opened a very profitable opportunity for other traders both legitimate and illicit.”
Data with destiny
The last session of the day delved into the conundrums arising from data and risk management, which are becoming more important to businesses as their models become more data driven.
Gareth Jones, vice president of IP at Benevolent AI in London, noted that his business licenses from a huge number of different data sources, some of which are platforms for academic literature. But different providers have different points of view on how they should monetise this data – which are becoming more pronounced because their traditional revenue streams are under threat.
The IP Corporate Strategy Summit took place on September 12