Examination of TPP & TTIP
Probir Mehta, acting assistant US trade representative for intellectual property and innovation at Office of the United States Trade Representative, hyped the areas the TPP would “raise the bar above existing norms”, such as for geographical indications, copyright, pharma and other areas.
“GIs will help level the playing field, adding certainty for first time,” he said.
Another area that will benefit is enforcement. “Asia-Pacific is ground zero for counterfeiting,” he said. In addition, Mehta said the TPP has the most comprehensive trade secrets provisions in any trade agreement.
Mehta said the international response to the agreement “has been quite significant”. He reported: “Eleven countries approached us looking to join and expressing some interest in TPP. That is gratifying, and shows we got the rules right with TPP.”
Barry Sookman of McCarthy Tétrault in Toronto warned that the ways the TPP is spun in public could have some impact on the discussion and politics around the TPP.
“Canada is an interesting case,” he said. “The impact of the IP chapter is not significant. The incremental change in Canada is small. But the attacks have been very persistent. There has been significant vocal criticism simply not based in fact that is shaping public opinion.”
He noted that for patent issues, Canada is pretty much compliant other than for patent terms.
Providing a counterbalance, James Love, director of Knowledge Economy International, said “I’m going to be more negative about it than others here. The TPP was negotiated within asymmetric secrecy. We delegated too much power to government trade negotiators and lobbyists. Some results we find astonishing.”
He noted the damages and remedies in the TPP were at odds with the US Copyright Office on orphan works, as well as being at odds on the issue of the patent dance.
He also criticised the effect on pharma. “The trade negotiations need to be more knowledgeable on R&D. The people I work with care as much about innovation as anyone in this room. They just don’t think continually escalating drug prices is working,” he said.
Steven Tepp, president and CEO of Sentinel Worldwide, pushed back on Love’s link between patents and drug prices.
Maria Martin-Prat of the European Commission is this year's first speaker. She says there is no longer a question about "if" copyright reform, but "how". "The debate is more nuanced and broader," she adds.
Martin-Prat discusses specific issues such as territorial licensing and copyright exceptions - which she says are important but don't necessarily need to be harmonised at the EU level.
These discussions are in the end about the exclusive nature of copyright, she says, before being cut off by moderator Hugh Hansen, who asks her how optimistic she is about copyright reform (among many other questions). Martin-Prat stresses the piecemeal nature of copyright reform, covering aspects such as orphan works and collective rights management: this does not mean nothing is happening!
Continuing this theme, Michele Woods of WIPO acknowledges that some people might see a "logjam" in Geneva. But there is progress on a Broadcasting Treaty and on limitations and exceptions (see the Marrakech Agreement, expected to come into force this year), she says.
On broadcasting, she says there is frustration, but there is now a consolidated text. On exceptions, there are (new) studies on libraries, educational institutions and other disabilities. Other topics on the table are the resale royalty right and copyright in the digital environment - where there is a nine-page discussion paper produced by the Latin American countries.
She concludes by asking: Where is copyright going? and says time needs to be found to address this question.
Shira Perlmutter of USPTO says there may be a logjam on treaties, but that doesn't mean there's no progress or cooperation, and she concludes that there is reason for optimism.
In the US, Register of Copyrights Maria Pallante says the government backs a "light touch" approach. Initiatives include a copyright small claims tribunal and work on copyright in the digital marketplace (making music licensing more rational). The consensus is "to leave fair use alone" but steps are underway to improve education on this issue.
She adds that important changes to the nature and status of the Copyright Office have been proposed. Questioned by Hansen, she says the Office is allowed to have 500 staff, but only has budget today for 300. One change would be that the president could appoint the Register of Copyright: Howard Knopf, in the audience, asks who would President Trump, or President Clinton, appoint?
Panellist Mark Seeley of Elsevier says he worries about the quality and nature of evidence relied on by legislators, as it varies widely and by different interest groups.
Meet the EUIPOTwo firsts for Fordham: Dimitris Botis's debut and the first talk by someone from EUIPO (as OHIM was renamed on March 23). He summarises the changes in the EU trade mark package, on which there is a detailed session tomorrow afternoon.
He says the changes were "targeted amendments" to improve predictability and accessibility, and the most important is the abolition of the graphic representation requirement (effective October 1 2017).
Next up is Antony Taubman of WTO, who describes his logjam as "well-entrenched" with no work on the GI project for five years (for example). He's here in New York to "harvest ideas" he adds.
Margot Fröhlinger of the EPO (see our recent interview with her) runs through some outstanding questions on the Unitary Patent and UPC:
- The European Commission is going to create a unitary SPC - "I wish them good luck" says Fröhlinger, saying there are a number of legal and political obstacles.
- What happens if a request for unitary effect is rejected by the EPO or over-ruled by the UPC after the deadline for national validation has expired (deadline is normally three months). She reports "intensive" discussions on this point, with most member states considering that the deadline should be reopened.
- What if a national earlier right is invoked against a Unitary Patent in the UPC? This complicated question may be one for the UPC to tackle.
- Double protection by Unitary Patents and national patents - this issue is left open, member states have different approaches.
Despite the challenges, Fröhlinger remains optimistic that the new system will be an improvement on the existing one. Panellist Sir Robin Jacob is not so sure.
In the next presentation, John Alty of the UK IPO (and chair of the B+ group) describes why he thinks patent law harmonisation is "closer than ever". He compares patents to baseball: the basics are the same worldwide, but the rules are different in each country. If you don't understand the differences, you can lose protection. But the differences arise from deep philosophical beliefs.
Group B+ is looking at four main issues: grace period, publication of applications, treatment of conflicting applications and prior user rights."Business has played a key role in moving this forward," says Alty, adding that businesses want a multilateral approach.
Patents in the US
The landscape of IP enforcement has changed drastically since the Federal Circuit was formed, says judge Kathleen O'Malley, not least in the number of patent cases coming before the Court and the monetisation of patent rights. There are also battles on different fronts, she adds, and the emergence of big law firms practising patent litigation.
The Federal Circuit responded, she says, by hearing more cases and dealing with big issues en banc. And now the Supreme Court is taking an interest, with 32 patent cases in the past five years, including on some substantive issues. "Attempting to apply their Section 101 jurisprudence is one of the biggest challenges [the Federal Circuit] faces," she says. "Any time you see a unanimous Supreme Court judgment you know it's not going to be very good - because they haven't engaged with the issues ... in some cases they've created more problems than they've solved."
Hansen asks if there is any validity in the allegation that the outcome at the Federal Circuit depends on the panel. Tough question, says O'Malley. To some extent, some things become panel-dependent at the Court, but the criticism is over-stated.
O'Malley also says that IP lawyers are the best lawyers!
David Kappos who, (as Hansen says) everyone knows, has 10 priorities for whoever is the next US president:
- Innovation = action, progress, leadership
- US must resume its role as world leader in innovation
- Federal government will lead in championing and rewarding innovation
- Government needs to recognise innovators need incentives
- Patent system is our system for incentivising innovation - we need a strong patent system
- Administration should not shy away from leadership in tuning patent system, from a position of strength
- Curtail abuses, but with the view that the benefits of patents far outweigh occasional misuses
- Patent system must take precedence in conflicts with other systems of law, especially antitrust law
- We will favour creation of new technologies and dynamic competition not protecting status quo (as antitrust law does)
- Patent system is enshrined in the constitution because innovation is about exalting what's next not what's now.
In the Q&A, he says he feels the current (Obama) administration, in its second term, has not been as supportive of patents as it was before or should be.
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