50 most influential people in IP 2019: public officials

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As the ranking member of the Senate Judiciary Subcommittee on Intellectual Property, Senator Chris Coons caused a stir this year in championing reform to patent eligibility legislation. In an attempt to address grievances over the long-lasting effects to patentability of the US Supreme Court’s decisions in Mayo, Myriad and Alice, Coons and subcommittee chair Thom Tillis drafted a bill to revise Section 101. The effort was applauded by biotech and some technology businesses, but caused some alarm with software companies that feared legislative revision would lead to the return of pre-2015 patent troll litigation rates. Many practitioners have, however, praised Coons for including representatives from pro and anti-101 reform industries in the discussions. Coons, who was elected to a full term as senator in 2014, has also helped champion legislation such as the STRONGER Patents Act and regularly chairs meetings on IP matters such as patent quality.

The Supplementary Protection Certificate Manufacturing Waiver came into force this year, and its final form was heavily influenced by Spanish member of European Parliament (MEP), now former MEP, Luis de Grandes Pascual. He was the rapporteur for the final report on the SPC Waiver, and he set out a number of significant amendments to the European Commission’s proposal of May 28 2018, including a stockpiling provision. Before this amendment, the waiver would only have applied to SPC-protected drugs manufactured in Europe for the purpose of export to jurisdictions where equivalent protections did not exist or had expired. The amendment, applauded by generics companies and condemned by many innovators, meant that the legislation would also apply to SPC-protected products manufactured in Europe for the purpose of stockpiling, which would enable companies to release generic versions of the drug in the EU the day after the SPC expired. Generics companies have told Managing IP that this amendment was a game changer, and that the waiver would not have been worth much to them without it. The proposal to amend the SPC Regulation (EC/469/2009) to introduce a manufacturing waiver was debated by the European Parliament on April 16 2019, and approved the next day (572 votes to 36, with 22 abstentions). De Grandes Pascual was an MEP for the European People’s Party but chose not to stand in the European Parliamentary elections in May 2019. He is a law graduate and has been involved in politics since 1983.

Bruce Hoffman is director of the Bureau of Competition at the US Federal Trade Commission and has overseen the organisation’s antitrust case against Qualcomm which it won this year in the Northern District of California. “We were very pleased with the outcome and to prevail on the merits of what was a hard-fought and contested litigation against a formidable adversary,” Hoffman tells Managing IP. “It is important to remember that this is not an anti-Qualcomm case, however. There is nothing in the case that suggests Qualcomm is not an innovative company. IP rights properly incentivise and reward innovators but can be abused and may result in monopoly problems, which is the proper role of antitrust regulators to address.” He stresses, however, that this success and past achievements – including the FTC’s win over AbbVie in 2018 – are not only his. He says it is important to remember that there are about 300 people at the agency who do most of the work, so those successes are theirs as well. Referring to the perceived conflict of interest between antitrust and IP in the US, Hoffman says there is no clash as such, but that it is important to get the right balance between the two concepts. “Today, a lot of people assume IP has inherent anti-competitive consequences, which is not true,” he says. “But to assume that IP creates an antitrust immunity that is different from other types of property is also not true. The perceived tension between antitrust and IP is a misunderstanding or a myth. The two subjects each form a vital body of law that can coexist well with each other.”

Iceland’s government claimed a major victory in April when the EUIPO’s Cancellation Division invalidated Iceland Foods’ trademark for the word ‘Iceland’. The UK frozen foods specialist had been granted the mark in 2014 but, two years later, the Icelandic government along with Promote Iceland – a public-private partnership – and the Confederation of Icelandic Enterprise sought to have the mark invalidated. They argued that Iceland Foods had been able to stop Iceland-based companies from using the country’s name in their trademarks. They added that the EU trademark (EUTM), which covered a wide range of goods and services, could deceive the public about their geographical origin because Iceland Foods is from the UK. As Managing IP reported after the ruling, Iceland Foods came undone in its bid to show that the EUTM had acquired distinctiveness through use, a holding which demands that evidence be demonstrated for all countries where the mark did not initially have such character. The company could not meet this threshold for Denmark, Finland, Malta, Norway or Sweden. In a statement at the time, Gudlaugur Thór Thórdarson (pictured), Iceland’s minister for foreign affairs, said: “This is an incremental victory in a case that is very important for Icelandic export enterprises. Our country is known for quality and sustainability and therefore there is value in referencing to the origin of Icelandic goods.” While the decision is now under appeal, lawyers previously said that it is unlikely to be overturned because of the lack of evidence on acquired distinctiveness.

IP has been a sticking point in the China-US trade war but China has made tremendous progress in policy changes and improving its court systems. Much of the strengthening of IP rights protection has been led from the top and China’s president Xi Jinping has played an instrumental role in ensuring that IP continues to be at the forefront of his policy agenda. IP practitioners have praised the creation of IP courts and tribunals throughout China, especially those in Beijing, Shanghai and Guangzhou, in ensuring fair treatment of parties and objectivity of judges. The setting up of the IP appeals court at the Supreme People’s Court in January 2019 has also been a significant step forward in maintaining consistency in judgments. One of the most important changes to China’s IP regulations in 2019 was the strengthening of the anti-unfair competition law to give more protection to trade secrets and reduce the burden of proof for plaintiffs in evidence collection. Another landmark change was the fourth amendment to the Chinese trademark law to target bad-faith filings, counterfeits and trademark infringement.

Christina Lambrecht serves as minister of justice in Germany at the Federal Ministry of Justice and Consumer Protection. While changes to German patent law are still in the works, they have been a hot topic this year. Particularly, the country is considering amending its automatic injunction system. As previously covered by Managing IP’s Patent Strategy, companies accused of patent infringement are sometimes required to wait months or years for a nullity judgment to remove a preliminary injunction. While they wait, they can lose significant revenue, so many companies would like to see this issue addressed. Patent reforms are particularly relevant in the automotive sector, where companies are concerned that if a small part of a complex system or product receives an injunction, the entire production line will be halted. Not everyone shares the concerns of the automotive industry, so it will be interesting to see whose concerns end up having more weight in shaping reforms – if they occur. Lambrecht stepped into her present role in June 2019. Prior to that, she served as parliamentary state secretary at the Federal Ministry of Finance. As the IP world keeps its eye on Germany’s patent system, Lambrecht will remain a key figure to watch.

Deputy chief prosecutor Gong Peihua is a well-respected member of the procuratorate who has served in a number of public service roles in Shanghai before starting his current role in 2015. Under Gong’s leadership, the Shanghai People’s Procuratorate has worked on a number of innovative programmes that have set it apart and been modelled on by other procuratorates in the country. These include improving the transparency of court cases by increasing brand owners’ participation during criminal trials. Another initiative is to educate businesses, especially small and medium enterprises, on strategies for protecting trade secrets. The procuratorate is working with academics, courts, businesses and other government departments to improve the evidence collection process. For the coming 12 months, the procuratorate has a number of goals, one of which will be targeting large-scale trademark infringement and counterfeiting activities that involve numerous operation points. By focusing efforts across the value chain in these well-organised operations, the idea is to fully compromise the entire operation, rather than going after each activity in a piecemeal manner. Another goal will be to make use of mediation when working with brand owners and punishing infringers. As brands are sometimes reluctant to take criminals to court because of potential harm to their reputation, the aim of mediation is to allow brand owners to recover financial harm while holding infringers more accountable for their actions but allowing for reduced sentences and damages if they cooperate.

A trademark counsel at a major company might find that counterfeit products are the bane of their existence. Not only do these goods infringe trademarks, threatening to take business away from IP owners, but depending on the products in question, they can even put lives at risk. No one wants to add a counterfeit automotive part to their vehicle or ingest a fake pharmaceutical product; if you are worried about fake goods, IP unit chief at the FBI, Steven Shapiro, shares your concern and wants to help. In an interview with Managing IP, published in July, Shapiro said that a lack of awareness about IP crime was his biggest concern. He emphasised that IP counsel should be willing to get the FBI involved in IP criminal matters concerning their companies, and that they shouldn’t wait too long to do so. Shapiro’s passion for the issue at hand is a reminder to lawyers to be open to using the resources at their disposal to fight IP criminal activity affecting their businesses.

This year saw the re-appointment of Margrethe Vestager for a second term as the EU’s competition commissioner, but this time with an increased remit. The former leader of the Danish Social Liberal Party (2007 to 2014) began working at the EU overseeing competition matters in 2014 and quickly built up a fearless reputation, imposing heavy fines on the likes of Apple and Facebook. Earlier this year, Vestager took a bite at another corporate giant, Nike, which was fined €12.5 million ($13.8 million) for banning third-party traders from selling licensed football merchandise, including mugs, bags and bedsheets, to other countries in the European Economic Area. The licensed products featured the brands of football clubs, not Nike’s. The company’s actions, Vestager said at the time, led to less choice and higher prices for consumers. For the next five-year term, which began on November 1, Vestager will have an increased remit, overlooking Europe’s wider digital strategy as executive vice president-designate of the European Commission for a Europe fit for the digital age.

Name	Position	Organisation
Erich Andersen	Chief IP counsel	Microsoft
Andrea Brewster	Lead executive officer	IP Inclusive
Female QC trailblazers: Lindsay Lane and Charlotte May	QCs	8 New Square
Scott Frank	CEO	AT&T Intellectual Property
Minoru Fujiki	CEO	IP Bridge
Galit Gonen	Head of IP	Novartis
Clemens Heusch	Head, European litigation	Nokia
Laurie Hill	Vice president, IP	Genentech
Dharmesh Mehta	Director, marketplace business	Amazon
Bill Merritt	CEO	InterDigital
Fiona Nicolson	President	LESI
Luis Romero	Director general	ETSI
Donald Rosenberg	General counsel	Qualcomm
Jesus Vazquez	General counsel	United Cannabis Corporation
Scott Witonsky	VP, IP and licensing	WiTricity Corporation

Name	Position	Organisation
Johanne Bélisle	CEO	CIPO
Mary Boney Denison	Commissioner for trademarks	USPTO
Elizabeth Carroll	Chief legal counsel	IP Australia
Fernando dos Santos	Director general	ARIPO
Charles Gore	Executive director	Medicines Patent Pool
Andrei Iancu	Director	USPTO
Daren Tang	CEO	IPOS
Cláudio Vilar Furtado	President	INPI

Name	Position	Organisation
Ryan Abbott	Professor	University of Surrey
Frederick Allen	Videographer	Nautilus Productions
Banksy	Street artist	N/A
The late Shamnad Basheer	Founder	SpicyIP
James Douglas Connor	European patent applicant	N/A
Jennifer Doudna	Professor	UC Berkeley
Grumpy Cat	Internet celebrity	N/A
Anthony Levandowski	Former employee	Google and Uber
James Love	Director	Knowledge Ecology International
Gene Quinn	Founder	IPWatchdog
Ian Shanks	Scientist	Formerly of Unilever

Name	Position	Organisation
Chris Coons	Senator	US Congress
Luis de Grandes Pascual	Former MEP	European Parliament
Bruce Hoffman	Director, Bureau of Competition	USFTC
Icelandic authorities	Ministry of Foreign Affairs	Iceland
Xi Jinping	President	China
Christina Lambrecht	Minister of justice	Germany
Gong Peihua	Deputy chief prosecutor	Shanghai People’s Procuratorate
Steven Shapiro	IP unit chief	FBI
Margrethe Vestager	Commissioner for competition	European Commission

Name	Position	Organisation
Alan Albright	District judge	US Western District of Texas
Richard Arnold	Lord justice	England and Wales Court of Appeal
Shripathi Ravindra Bhat	Judge	Supreme Court of India
The late Henry Carr	Justice	England and Wales High Court
Luo Dongchuan	Chief judge, IP Court	China Supreme People’s Court
Peter Huber	Justice	German Federal Constitutional Court
Marc Jaeger	Former president	EU General Court

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