In debates on issues such as patent reform, internet governance and copyright enforcement it often seems like everyone has a point of view, and is trying to make their case. With all this noise going on, does an association like AIPPI still have a role to play?
AIPPI President John Bochnovic of Smart & Biggar/Fetherstonhaugh argues that it does, because of its “singular distinctions” of neutrality and internationalism. “You might say we are lobbying. But we are lobbying for better IP laws, or harmonisation of legal principles as our members see them, as opposed to lobbying for industry sectors and the like,” he says.
He cites the work on client-attorney privilege as one area where AIPPI can play a unique and credible role: “We’ve been pushing that along. That has been an issue where there’s been some traction. We’re not sure where we going to get with it and we’ve had developments in parallel here in Canada.”
Another area that the association is now focused on is grace period and prior user rights, which has come into focus since the United States passed the America Invents Act. Last year, to the surprise of many, AIPPI passed a resolution on a grace period, and a follow-up plenary meeting on prior user rights was held in Toronto on Sunday. Bochnovic backs the progress made in this area: “Is it critical? Maybe not – people probably live with the situation today. But it would be nice to have a more coordinated approach. The key was the US moved away from first-to-invent and that was a door opener.”
He says he was “pleasantly surprised” by the agreement in Helsinki, given previous disagreements in this area, adding: “We can play a role there to move that forward. There are still different views in Europe but some are now open to embracing grace period on a fundamental level. I don’t see the evil in grace period that some people seem to. But like everything else you have to respect people’s views to come to an agreement.”
Bochnovic believes the association can do even more to ensure that the views of IP practitioners are heard in the crucial forums where change is taking place.
AIPPI filed an amicus brief before the US Supreme Court in the Alice v CLS Bank case, and will also file a brief in a Canadian case on disclosure of utility later this year. He would like to see more such initiatives.
Likewise, when it comes to legislation, AIPPI should engage “at all levels” says Bochnovic. That means not just having the President visible at high-level meetings, but also having committee chairs involved in discussions on points of detail. “In practical terms, we want to have more AIPPI members at more meetings to have a louder voice in these bodies,” says the outgoing President.
A global meeting placeTackling these issues inevitably involves consideration of harmonising laws and practices, and also paying attention to emerging markets.
Over the past year, Bochnovic says the association has sought to become more international, encouraging participation from China, Japan and Korea as well as other countries in Asia: “We should be a global meeting place for IP practitioners. AIPPI has historically been seen as a European organization, which we have tried to change over the past 10 years.” That change will speed up as the Congress visits the world’s major regions over the next few years (see box), and it’s notable that as of this week it will have a Chilean President and an Australian Reporter General.
The international push has involved a lot of travelling for Bochnovic in his two-year term as President. In July, for example, AIPPI joined with FICPI and the JPO for a symposium on patent harmonization and the association also held a Bureau meeting in Tokyo. “I’ve tried to get to as many meetings as I can to personally represent the organization. I hadn’t anticipated as much personal involvement with the other associations, but I have made it a personal priority,” says Bochnovic.
As a Canadian, he says, he has during his career practised in a “Europe- and US-centric world” but that is changing as Asia becomes dominant in IP. He predicts a time will come when “the US patent might cease to be the currency of the IP world and have to share the stage with China or Europe”.
Improving enforcementBochnovic, who will retire next year after nearly 40 years of IP practice in Canada, believes the global IP system is coping in the face of the challenges of the 21st century: “I look at IP and I think this is functioning pretty well for a global infrastructure that is more than a century old that has had to adapt to tremendous changes in technology which IP seeks to protect, as well as huge changes in the world economic order.”
However, he admits the IP system can be frustrating: if he went back to 1883, he says, it would be nice to start with a world patent and evolve from there, but that’s not realistic. Today, he says the area most ripe for improvement is enforcement: “I think it would be interesting and desirable to have a world forum, court or IP tribunal, with jurisdiction in patent law issues. A lot of work is being done on making it easier and less expensive to acquire IP rights but you’re still left with the practical difficulties of enforcement. There are practical ways to deal with enforcement through licensing and agreements, but it’s a realistic goal for the long term.”
More fundamentally, he admits there are some people who want to attack the principles of intellectual property: “That’s certainly been an issue for a long time. We’re used to that in Canada because of the pharmaceutical issues. That to me is a public relations issue, which can be dealt with by better understanding. But if it’s fair and healthy disagreement, I’m not shocked by that in a democratic way of life.”
Going global – the next six Congresses2015: Rio de Janeiro, Brazil
2016: Milan, Italy
2017: Sydney, Australia
2018: Cancun, Mexico
2019: Istanbul, Turkey
2020: Hangzhou, China
Where next for AIPPI?Bochnovic’s term as AIPPI President ends this week, but in his speech at the Opening Ceremony on Sunday night he urged members to look forward, noting that Toronto marks the start of a new era of annual Congresses. Over the next six years, AIPPI will host a Congress in every continent apart from Africa, but Bochnovic said it’s not just about where the Congress is hosted, but about being a fully international association: “We have to behave consistently with that and have a truly global approach. We need to make the AIPPI family more cohesive, month-to-month and year-to-year.”
He added that the “most difficult thing” he had witnessed in his two-year term was “to have central direction and yet not appear to be too authoritative and let national groups feel the freedom and independence they need to have”.
Another challenge he identified is developing closer relationships with IP authorities, including national governments and offices, regional institutions and WIPO. That means face-to-face contact and regular meetings, he explained, being “more interventionist” before legislators and courts, while retaining an objective approach: “We need to speak with a louder but still balanced voice.”
The next few years will also see the implementation of many of the institutional reforms recommended in Robin Rolfe’s 2012 report, which the Bureau has been discussing over the past two years. Notably, the process to appoint an executive director is underway, with applications being accepted until the end of this month, and the candidate likely to be in place next year. Bochnovic says considering these changes to the association has been “exciting” and involves thinking about the fundamental nature of an organisation that is essentially volunteer-driven and made up of national groups with their own needs and aspirations. “It’s good for the organization to move forward,” he says.
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