Search results for

Following the rapid rise of patenting by Japanese inventors in the second half of the twentieth century, a second-wave of Asian innovation is being led by companies in China, India and South Korea. But are these businesses protecting their IP rights overseas? Peter Ollier looks at the trends

Emma Barraclough, London

Trade secrets (including so-called tricks of the trade) are commonly protected by confidentiality agreements, non-disclosure agreements and exclusivity clauses or contracts. Exclusivity clauses are often attacked as being null and void on grounds of public policy because they restrain trade or occupation unreasonably. In Avon Cosmetics Incorporated v Leticia Luna, GR No 153674, dated December 20 2006, the Supreme Court ruled on an exclusivity clause. The facts of the case are as follows: In 1978 Avon acquired Beautifont Inc, a Philippine company, where Luna was an employee. In 1985, Luna and Avon signed the so-called Supervisor's Agreement. This had the following terms: (i) that the Agreement does not make the Supervisor an employee or agent of the Company (ii) that the Supervisor is an independent retailer/dealer and has sole discretion to determine where and how Avon's products will be sold, except that the Supervisor cannot sell such products to stores, supermarkets or to any person who sells things at a fixed place of business, (iii) that the Supervisor shall sell or offer to sell, display or promote only and exclusively products sold by the Company; (iv) that either party may terminate the agreement at will, or without cause, at any time upon notice to the other.

Companies spend a lot of money buying and selling usage rights to software and related services. As such, various types of software licensing agreements are becoming ever more important for both IT companies and their customers. Despite the fact that contract amounts are often relatively large in relation to the company's other finances and that the product to be delivered often has an activity-critical function for the customer, it is extremely common that licensing agreements and the associated documentation leave much to be desired with respect to legibility, appropriate adjustments and so forth. This is especially the case when the software licensing agreements are not entirely standardized in their form, much less business-specific.

Commissioner Sang-Woo Jun of the Korean Intellectual Property Office (KIPO) announced that KIPO was able to average 9.8 months for examining each patent application in 2006. In 2005, the US averaged 21.1 months, Europe 24 months and Japan 26 months. In comparison, KIPO is able to complete examinations at least 11 months faster.

New Zealand for the most part has rather antiquated intellectual property legislation. The Trade Marks Act was in force for nearly 50 years before being replaced in 2002 and the Patents Act has been in force for more than 50 years. In a flurry of activity, two IP-related pieces of legislation were passed in late 2006 and there are several other draft bills being considered.

Ever since EU Regulation 1768/92 implemented supplementary protection certificates (SPCs) in the European Union, the unclear wording of various provisions of the Regulation has led to numerous decisions by courts throughout Europe.

Our firm has virtually abandoned filing applications on paper. We feel that online filing is safer than paper filing, provided that some sensible precautions are taken.

Bilateral trade between India and the US has increased exponentially over the past two decades, and gathered a full head of steam last year. In March 2006, US president Bush visited India for a meeting with prime minister Manmohan Singh on increased global partnership between the two nations. This was well received and very successful. This meeting was followed by meetings of the CEO Forum, the Trade Policy Forum and the Commercial Dialogue and High Technology Group, a clear indication of the two countries' desire to work together.

On December 8 2006 the Administrative Council of the EPO took a further step in the implementation of EPC 2000, which will come into force this year. The Council reviewed and approved the Amendments to the Implementing Regulations to the EPC 2000.