They say that it’s easier to give advice than to take it; especially your own advice! That may be true, but in this case it’s only because I won’t be…
A new Designs Law has just been enacted in Israel, and is due to take effect in about one year from now. The need for a new law has existed for a long time, due to the current system being based on the Patents and Designs Ordinance (‘the Act’) of 1924. To say that this change is well overdue would be a gross understatement.
So what has taken so long? When pondering that question I recall a roundtable discussion that I attended on The Hague System of international design registration. I estimate that this was probably about 8 years ago, at one of the big international conferences, and all present agreed that designs were the “illegitimate child of IP.” If you look at the time it has taken for the IP world at large, to get its act together regarding designs; if you compare how many countries are members of the PCT, Madrid and Hague, respectively; and otherwise consider the huge differences between different jurisdictions when it comes to design rights, it’s hardly surprising that this was – and still is to a large degree – the perception.
A moment before returning to the frenetic activities of business as usual, it is worthwhile considering an aspect of the annual INTA meeting that is so much more important, in my opinion, than all of the IP-related activities pursued during this year’s annual meeting in the beautiful city of Barcelona.
When asked to describe the INTA meeting, my tongue in cheek description of this annual event is that is “an opportunity to spend a few days of quality time with 10,000 of my closest friends.”
On reflection, this may not be so far from the truth. I am an Israeli and a traditional Jew, and as on all my international travels, proudly wear our traditional head covering, the “kipa” or “yarmulke”. For some of my friends and colleagues attending the conference, it has become an advertisement of my Israeli/Jewish identity; and for others, I suspect that is somewhat bemuses them, as I stop and talk to them to have a brief conversation that perhaps they were not expecting. Yet others look right through it, it being no different to the gallabiyah worn by a few, or the lederhosen worn by one of my German friends, and being irrelevant to conducting civilized discourse, as it should be.
Following a short visit to the UK with Dr. Mike Hammer, head of our US practice, I can safely say that Her Majesty’s IP economy is not merely alive and kicking, but full of opportunities. Some may say that this is due to the implications of Brexit, while others may say that this is despite them. But there they are, nonetheless, and I will try to relate to those that as a visitor, I have identified.
- Exchange rate fluctuations
- Patent Box advantages
- GB and DE and GPPH
- Design and Trademark – separation anxiety
- The rediscovery of the UK
Let’s start at the beginning.
The new Chinese year is the Year of the Rooster. As we move away from the western new year celebrations, I would like to congratulate the Chinese entrepreneur, wherever he or she may be. It’s easy to tell when the Chinese entrepreneur is doing something right – all you need to do is to look at the faces of their counterparts in the West; they’re green with envy. I have no other explanation than that of pure envy for the myriad entrepreneurs or would-be entrepreneurs in the West and their cries of ‘foul’ in response to the Chinese copying of products from public postings on the internet.
I have suggested, on more than one occasion, that anti-IP lobbyists are the equivalent of modern day Luddites. However, many of us, at some stage in our life, have experienced a temptation to buy an article which they know flouts the rigid possessiveness of intellectual property rights. Merely being IP attorneys doesn’t exempt us from that temptation, per se, but it has led me to consider how IP law affects the lives of non-IP practitioners; the distinction between IP practitioners and everyone else (the other 99.99999% of people that inhabit this planet) being important merely in terms of awareness of IP law.
So how does IP affect our everyday lives? IP rights are everywhere, and underlie much of our everyday activities, every time we go shopping, pick up a phone or go for a drive. The list is endless. But what is its purpose? And once we have established its purpose, are there any unintended benefits that it provides? Are there any direct, tangible benefits that those who do not actually own IP receive due to the existence of IP laws?
I have an admission to make. If I had to name a single individual who has captured my imagination over the past few decades, it would be Sir Richard Branson. I don’t know him personally. However, from the chutzpa he employed in 1967 when, aged 17, he sold advertising for his school magazine to the two local banks, through establishing the rather cheekily (or should that be “saucily”?) named Virgin Records and his subsequent successes in air travel and now space travel, spanning a period of close to 5 decades; he is everything that we in the IP profession can appreciate as a serial entrepreneur and visionary. In short, in the immortal words of Star Trek’s William Shatner, he has gone “where no man has gone before” (well, pretty much, anyway).
His achievements are all the more impressive as, throughout the early stages of his entrepreneurial career, as told in his autobiography “Losing My Virginity”, he operated on a shoestring budget, and generally was denied the backing of institutional banks that you would think might be available when, for example, setting up an airline. This, more than anything else, underscores his achievements, and his pioneering attitude of “Screw It, Let’s Do It” (this, coincidentally, being the name of another of his books.
So why do I choose to bring this up now?
Inventors are an intrinsically optimistic lot. Most people when faced with a problem will either make do, or will come up with a temporary solution that allows us to get on with our day. But inventors know that progress is not achieved by just making do, and that the world can be improved, even incrementally, through that nearly undefinable creature known as innovation, and through practical applications of scientific discovery.
I think that patent attorneys share some of this optimism. Don’t laugh! I really do believe that for us to zealously represent our clients before the seemingly arbitrary bureaucracies of the world, we have to be optimistic. When faced with rejections by patent examiners, we persist because we have a deep-rooted belief that there is nearly always some way around the obstacles set before us.
This sense of possibility is why in the first year or so after the rather grim U.S. Supreme Court decision in Mayo v. Prometheus, I counseled my clients that although Mayo had changed the U.S. patenting landscape for medical diagnostic methods, and indeed made things more challenging, the sky had not fallen, and we could and would find a way forward.
It’s been four years now, and I’m going to be blunt: Mayo did bring down the sky on certain diagnostic method claims.
But like I said, I’m an optimist.
When I was at high school, one of our teachers used to tell us that there were 1,000 reasons for doing an assignment. “The first one”, he would say “is because I say so”, and as for the rest? those, he would say “don’t matter”. When seeking to promote new inventions internationally, even if you have no intention of being active in China, the first and most important reason why you can’t ignore China is because Chinese businesses and the Chinese marketplace won’t ignore you. (and it really may be that the other reasons don’t matter(!)
Inventors and designers of new products are likely to become irritated, frustrated and even insulted when their new products are copied by Chinese entrepreneurs. But how reasonable is this, and how much of it has to do with expectations which are unrealistic and essentially based on the fact that it can take a lot less time to copy products than it does to obtain IP rights through which such copying can be prevented?
A Typical Day in the Life of a Patent Attorney and an Inventor in the Post-Digital World
“Hi. I was told to come and speak to you about patenting my invention,” said inventor X as he steps through the door rather hesitantly, in a manner reminiscent of someone about to undergo a root canal. “Hello,” said I. “It’s nice to meet you. Tell me about your invention.”
This is the second in a series of articles dealing with Intellectual property health leading up to the IVC conference in Tel Aviv on 9-2-2016 on doing business in the US. In the first article Dr. Mike Hammer discussed general considerations for IP heath in 2016, and the benefits of an approach that encompasses multiple types of IP. Here, Dr. Sinai Yarus describes how and when different types of IP can fit together in the development cycle of a product.
Eighty percent or more of corporate assets are intangible. That means a business plan needs to include an IP strategy tailored to the business. Businesses based on developing new technology have a different IP strategy than businesses using existing technology, but everyone wants a slice of the IP pie.
Let’s talk first about businesses that make a product.