Issue 9
Conference Special
The size of the problem Leading brand protection experts discuss enforcement
Past and president LES presidents Robert Held and Bill Elkington discuss the society
The future of IP
How fintech will change IP forever
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In this issue
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Fintech will change IP forever
The size of the problem
Past and president
A standard mistake
LES president Robert Held and past-president Bill Elkington discuss the future of the society
John Thorne, general counsel of the High Tech Investors Alliance, talks about the BRI standard change
Justin Simpson, the founder of inovia, talks about his latest venture, Billtrader, and how fintech startups are changing the IP landscape
Editor: Becky Butcher beckybutcher@blackknightmedialtd.com +44 (0)203 750 6018 Deputy Editor: Barney Dixon barneydixon@blackknightmedialtd.com +44 (0)203 750 6026
Contributors: Jenna Lomax, Ned Holmes, and Maddie Saghir IP Portfolio Manager: Serena Franklin serenafranklin@blackknightmedialtd.com +44 (0)203 750 6025 Publisher: Justin Lawson justinlawson@blackknightmedialtd.com +44 (0)203 750 6028 Office Manager: Chelsea Bowles accounts@blackknightmedialtd.com Published by Black Knight Media Ltd Copyright Š 2018 All rights reserved
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China: the largest innovator
Solutions for domain theft
Despite international attempts to reel China back, the country continues to dominate the rankings when it comes to innovation
Dreyfus partner Emmanuel Harrar talks about how Registry Lock can be an effective solution against domain name theft or hijacking
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The name of the game
Under the magnifying glass
Anshul Sunil Saurastri and Parima Khabya of Krishna & Saurastri Associates discuss inventions based on biological material
Tamara Rabenold, president and CEO of Vaudra International, explains how she found her passion for IP investigations
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Leading brand protection experts discuss the problems and issues facing brands in the protection and enforcement of trademarks
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Junior Reporter: Ben Wodecki benwodecki@blackknightmedialtd.com +44 (0)203 750 6017 Designer: James Hickman jameshickman@blackknightmedialtd.com +44 (0)203 750 6021
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Patents · Latest News
European Commission creates IoT SEP licensing group The European Commission has created an expert group on the licensing and valuation of standard-essential patents (SEPs). According to the commission, the group will “deepen the expertise on evolving industry practices related to the licensing of SEPs in the context of the digitalisation of the economy, the sound valuation of intellectual property and the determination of fair, reasonable and non-discriminatory (FRAND) licensing terms”. The group will facilitate an exchange of experience and good practice in the field of licensing and valuation of SEPs, provide the commission with the necessary economic, legal and technical expertise surrounding evolving industry practices related to SEPs, as well as assist the commission in monitoring SEP licensing markets and obtaining information on licensing and valuation practices. In November last year the commission published a communication outlining key objectives for SEPs in Europe, including incentivising the development and inclusion of top technologies in standards, by preserving fair and adequate return for these contributions. However, away from the commission, a debate is currently raging over best practices in licensing SEPs for 5G and internet of things technology. Two organisations, the App Association (ACT) and IP Europe, have been at loggerheads over the rules, with each creating their own workshop at the European Committee for Standardisation (CEN) and Electrotechnical Standardisation (CENELEC), aiming to create agreements to help new entrants understand the licensing environment for 5G and the internet of things. IP Europe recently revealed that it had completed its version of a draft agreement, which it said would be a “vital first step to the EU maximising its share of the $11.1 trillion of economic value predicted to be generated by the internet of things by 2025”. ACT said it would soon be publishing “inclusive innovationand market-focused best practices” in its own workshop agreement that would “conclude before the end of the year”.
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IP Europe said that the commission’s group would be “absolutely vital to help deepen the commission’s expertise on industry licensing practices, sound IP valuation and the determination of FRAND and ensure continued European leadership in innovation and the growth of Europe’s digital economy”. IP Europe also requested that the expert group consider its CEN-CENELEC Workshop agreement, which it was “drafted collaboratively by technology developers and users with decades of experience in SEPs licensing”. ACT, however, said that the group seemed stacked in licensors’ favour. Morgan Reed, executive director of ACT, explained that the association had “deep reservations about the ability of this expert group to balance the interests of the two sides in the SEP licensing process”. “The make-up of the group appears to favour the interests of licensors, leaving the interests of downstream innovators, including small app developers, under-represented.” Reed added: “We will of course engage constructively with this group in order to help it tackle some of the challenging issues that have plagued SEP licensing for so many years.” “The expert group will have to work within the parameters set last November in the European Commission’s communication.” “For example, the communication warned of the dangers of royalty stacking and it did not endorse the concept of use based licensing. We will hold the expert group to the principles laid out in the commission’s communication.” “In the meantime, we have devoted a lot of time and effort to tackling the same issues through our CEN-CENELEC working group which will be publishing its conclusions before year-end and we look forward to sharing the conclusions with the expert group.” www.ippromagazine.com
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Patents · Latest News EPO president meets with ILO and ILOAT leaders European Patent Office (EPO) president António Campinos has met with leaders of the International Labour Organisation (ILO) to discuss the “large number” of EPO cases currently at the ILO Administrative Tribunal (ILOAT). In October, Campinos met with Guy Ryder, director-general of the ILO, and Giuseppe Barbagallo, president of the ILOAT, in Geneva, as a “formal courtesy” to introduce himself as the president of the EPO. In an email to staff, Campinos said he thought it was “important to meet [Ryder and Barbagallo] because of the large number of cases at the ILOAT that originate from the EPO”. Campinos said that, according to the ILO, the backlog of cases brought by staff of other international organisations has been practically cleared, with the sole remaining backlog of complaints being against the EPO. The president explained the office was “particularly concerned by the draft proposal that would have enabled the ILO—on its own initiative—to withdraw recognition of the tribunal’s jurisdiction over another international organisation, such as the EPO, depriving our staff access to the tribunal.” Campinos stated that at the meetings in Geneva, the EPO was able to explain how it had reduced litigation cases by implementing an internal justice system and increasing social dialogue. The president said he was having one-to-one meetings with staff, central and local staff representatives and unions to ensure a “more constructive dialogue at all levels”. Campinos also outlined a recent agreement with the chair of the office’s appeals committee, which outlined how cooperation between the secretariat of the committee and the office shall be “grounded on the principles of good faith and trust, in the best interests of the office and its staff”.
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Finally, Campinos said that another way to reduce the complaint backlog at the ILO was to ask all colleagues with pending appeals and complaints to consider reaching “amicable settlements” with the office. “I am fully aware that there is still further work to be done in our social dialogue, despite the progress we have made already”, he said, “however, I am hopeful that a greater use of amicable settlement could prove to be a significant measure in moving from a culture of litigation to a culture of social dialogue”.
Social dialogue Campinos has maintained a message of promoting staff engagement and dialogue at the EPO since he began his five-year term as president of the organisation. However, some critics have argued that the president’s actions have not matched his words, and Campinos has presided over the dismissal of an employee under new controversial ‘incompetence’ provisions, and the alleged upholding of a Staff Union of the EPO (SUEPO) email ban.
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Patents · Latest News SUEPO also criticised the office yesterday (31 October) for allegedly censoring a publication from the Central Staff Committee (CSC) that discussed the EPO’s Conflict Resolution Unit (CRU).
USPTO appoints Laura Peter as deputy director
The CRU acts as a receiving section for management review requests but does not itself carry out management reviews.
Laura Peter has been appointed as the US Patent and Trademark Office’s new deputy director.
The CSC said that the CRU had been refusing to register requests and forward them to reviewers for a decision and that this procedure is “confusing for staff and defeats the declared purpose of the management review requests”, which were introduced to give management an opportunity to reflect on its decisions and settle disputes before they reach the stage of real litigation.
Peter will take up the role of deputy undersecretary of commerce for intellectual property on 13 November.
Sources close to SUEPO have told us that the communiqué from the president had taken the union by surprise as neither the CSC nor SUEPO were informed or invited to Campinos’s meeting at ILOAT. The sources said that a meeting of this type without the involvement of statutory staff representation casts “serious doubts on the independence of this jurisdiction. In any case, if this episode is meant to illustrate what Campinos understands under the label ‘social dialogue’, then it is plain wrong.” On “amicable settlements”, the sources said that legal complaints are not lodged as a “hobby”, but rather when the “rights of staff are violated by the EPO”. When settlements are offered the vast majority usually “add insult to injury”, according to the sources, resulting in the lion’s share of offers being rejected by appellants. “If the number of complaints are decreasing, this is mainly due to the red tape introduced under Battistelli,” the sources remarked, “lodging an appeal has become an administrative nightmare. EPO staff now have to pay to lodge an appeal when their rights are violated.” The sources said that Campinos had failed to resolve pending ILOAT cases against staff representatives and union officials and has already taken several negative decisions that will result in new appeals. “If [Campinos] continues to act as he has since taking up his duties, then we fear that new social conflicts will be inevitable in the near future,” the sources concluded.
She recently held a deputy general counsel role at A10 Networks where she provided counsel on global legal matters that included IP, licences, and regulatory compliance. Peter was also previously vice president and general counsel of Immersion Corporation, where, among other legal roles, she led its IP portfolio. Commenting on the appointment, US Secretary of Commerce Wilbur Ross said: “Laura Peter brings a breadth of experience and a deep understanding of IP issues to her new role as deputy director of the USPTO.” He added: “She will be an asset to our administration as we look to increase reliability and balance in the IP system, as well as provide more predictability so that businesses can grow and invest with confidence.” USPTO director Andrei Iancu added: “I am thrilled that Peter will join the USPTO as deputy director.” “Her thoughtfulness, business sense, and a keen understanding of the important role intellectual property plays in today’s economy will be extremely valuable to the USPTO and the IP community.” Peter said she was “honoured” to become the deputy director of the USPTO at a time when IP matters are at the forefront of national and international affairs. She added: “I look forward to working with director Iancu and the nearly 13,000 employees of the USPTO to protect and improve our IP system, which is a crown jewel in the American economy.”
The EPO did not respond to requests for comment.
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Patents · Latest News CRISPR patent granted to University of California The US Patent and Trademark Office has granted the University of California a patent covering RNA guides that, when combined with Cas9 protein, can be used in gene editing. The combination effectively acts as precisiontargeted gene-editing scissors. The newly issued patent also covers protein-RNA compositions that can deliver CRISPR-Cas9 into cells as either a fully functional ribonucleoprotein, or with the components encoded by DNA that is subsequently expressed and assembled inside the cell which, in turn, forms a functional CRISPR-Cas9 complex. CRISPR allows scientists to make precise changes to DNA with a very high success rate. Some interesting examples include research that has shown that technology can be used to genetically modify mosquitoes to fight malaria in their bodies and pass that trait to their offspring. CRISPR patents have been at the centre of an ongoing dispute between Charpentier/UC/Vienna group and the Broad Institute/MIT/Harvard group. In the most recent ruling, the US Court of Appeals for the Federal Circuit concluded that the use of CRISPR-Cas9 in plant and animal cells is separately patentable from University of California, Berkeley, scientists Emmanuelle Charpentier and Jennifer Doudna’s use of CRISPR-Cas9 in any environment.
In September, the ruling affirmed the dismissal of an interference proceeding to determine whether the Broad Institute or UC Berkeley is entitled to patent claims specifically covering the use of CRISPR-Cas9 in plant and animal cells. Doudna and Charpentier claim to have invented the technology and UC Berkeley filed patent applications on their behalf covering the use of technology in all cells. Soon after, Feng Zhang of the Broad Institute published research showing evidence of CRISPR in eukaryotic cells and moved to patent the technology. The first ever patent granted, covering CRISPR gene editing, was granted by the USPTO to Charpentier’s company, ERS Genomics. That patent covered the use of an optimised guide RNA format in all environments, including human cells. Commenting on the latest patent, special advisor to the UC Berkeley chancellor and special assistant to the president of the UC, Edward Penhoet, said: “These gene-editing scissors have already sparked countless research projects across the globe to improve health and the food supply”. “These patents are the first of many that we expect to be awarded for the Doudna-Charpentier teams’ groundbreaking invention.”
SCOTUS to decide if government is a ‘person’ under AIA The US Supreme Court has granted Return Mail v US Postal Service and will consider whether the government is a “person” who may petition to institute review proceedings under the America Invents Act (AIA).
The US Patent Trial and Appeal Board ruled in the US Postal Service’s favour, finding that Return Mail’s patent was directed towards ineligible subject matter. On appeal, the Federal Circuit upheld this decision.
Return Mail had petitioned the Supreme Court for certiorari following a US Court of Appeals for the Federal Circuit decision last year.
Return Mail contends that the federal government is not a “person” that may file a petition for a covered business method review.
Return Mail had originally tried to licence its patent for the processing of mail items that are undeliverable to the US Postal Service but was unsuccessful. Return Mail then filed a lawsuit in the US Claims Court, alleging patent infringement. The US Postal Service countered this by filing a petition with the USPTO for a covered business method review.
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But the US Postal Service argues that the Federal Circuit “correctly rejected those contentions” and that its decision “does not conflict with any decision of this court. In any event, this case would be a poor vehicle for resolving the first question presented and both issues have diminishing practical importance in light of the upcoming expiration of the covered business method review programme.”
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Patents · Latest News
USPTO stalwart joins Perkins Coie as partner Perkins Coie has hired Nathan Kelley, the former solicitor and deputy general counsel at the US Patent and Trademark Office (USPTO). Kelley, who stepped down from his role at the USPTO over the summer, joins Perkins Coie as a partner in its IP practice. He will work out of the firm’s Washington DC office. In his role at the USPTO, Kelley represented the office director in court and has been involved in some of the biggest patent and trademark cases of the last few years, including Oil States v Greene’s Energy Group, Novartis AG v Noven Pharma, and Aqua Products v Matal. Kelley has helped develop USPTO regulations and counseled the office on the implementation of the America Invents Act. Before working as solicitor and deputy general counsel at the USPTO, Kelley was the office’s chief administrative patent judge in charge of the Patent Trial and Appeal Board. In his new role at Perkins Coie, Kelley will be focusing his practice on Federal Circuit appeals, inter partes reviews, and advising clients on IP strategy and policy. Perkins Coie’s managing partner of its DC office, Bill Malley, commented: “Nathan Kelly’s hiring furthers this trend of adding senior-level lawyers with impressive federal government experience. We’re excited to have him on board.” Shannon Bloodworth, co-chair of Perkins Coie’s IP practice, added: “Kelley is one of the foremost intellectual property lawyers in the country, and he is widely respected for his litigation experience and ability. His deep knowledge of the USPTO and Federal Circuit will broaden and strengthen our nationally ranked team of IP litigators. He is a significant addition to our team, and we’re thrilled that he has chosen to join us.”
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BIA to weigh in on Actavis v ICOS, says UK Supreme Court The UK Supreme Court has granted permission to the UK BioIndustry Association (BIA) to intervene in an ongoing life sciences dispute. Actavis v ICOS is a patent dispute that addresses the patentability of a discovery made during the dosage regime testing stage of a clinical trial. BIA is arguing that medical innovations should be patentable irrespective of how the invention is made. Generic drug manufacturer Actavis was seeking to create its own version of the drug tadalafil, which is used in the treatment of erectile dysfunction. Actavis challenged a patent owned by ICOS, arguing that the discovery was obvious. It claimed in a UK Court of Appeal hearing that it would have been obvious starting from a prior publication to reach the patented discovery, in this case, a low effective dose of tadalafil that shows reduced side-effects, during routine pre-clinical and clinical trials, rendering it unpatentable. ICOS argued that its daily 5mg dosage was not obvious and that its team had no idea which dosage would be either safe or effective. The presiding judge ruled in favour of ICOS, only for the Court of Appeals to overturn that decision. ICOS is now challenging the overturned ruling. BIA weighed in on the case, arguing that the design and conduct of clinical trials and other forms of biomedical research frequently involve the application of significant skill and complex decision making, despite often following a stepwise well-established path to ensure regulatory compliance. BIA argued that the assessment of obviousness should be based around the knowledge at the relevant time and not simply on the nature and type of research which led to the claimed invention. BIA also warned the Supreme Court not to make a decision that may have unintended consequences for other patents for inventions made during the pre-clinical or clinical trial process. BIA’s CEO Steve Bates commented on the case: “Clinical trials are an important part of medical innovation and it is vital that companies can protect their discoveries regardless of what stage in the research process they are made. Without a strong and consistent patents regime that rewards innovation, UK bioscience companies will not be able to attract the investment they need to develop the life-saving drugs of tomorrow. We are delighted that the Supreme Court will give consideration to the arguments we are making on behalf of the UK bioscience sector.” www.ippromagazine.com
Patents · Latest News
BPLA supports industry amendments to subject matter eligibility The Boston Patent Law Association (BPLA) has come out in support of the Intellectual Property Owners Association (IPO) and American IP Law Association (AIPLA)’s joint proposal concerning section 101 of the US Patent Act. The proposal, which was delivered to US Patent and Trademark Office director Andrei Iancu on 3 May, calls for restored certainty in the predictability of patent subject matter eligibility. AIPLA and the IPO notified Iancu that the organisations had adopted a unified legislative proposal, which would amend section 101 of the patent act. According to the BPLA, it underwent significant consideration and discussion with members of the BPLA, IPO, AIPLA and New York IP Law Association, among others, before announcing support of the proposals. BPLA president and Nutter partner, Rory Pheiffer, said that the proposed amendment to section 101 will “clarify the murkiness that has ensued in response to the US Supreme Court’s decisions in Mayo, Myriad, and Alice”. However, Pheiffer acknowledged that there was likely no perfect legislative solution. He said: “Consistency is essential to a strong patent system, and this solution will keep the US at the forefront of embracing innovative new technologies.” The BPLA said that some work will need to be done to ensure particular benefits, intentions, and goals of the joint proposal are clearly articulated in the ensuing legislative history. But the BPLA added that the joint proposal achieves the goals of providing greater certainty as to what constitutes patentable subject matter; allowing for innovative developments in sectors such as software and diagnostics to be considered patent eligible; focusing the subject matter eligibility evaluation on the invention as a whole; and separates the section 101
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analysis from analysis under any of sections 102, 103 and 112. The BPLA said it would “lend its support to IPO, AIPLA, and Congress to help see this amendment to section 101 to fruition”.
The proposal Eligible Subject Matter: a. Whoever invents or discovers, and claims as an invention, any useful process, machine, manufacture, composition of matter, or any useful improvement thereof, shall be entitled to a patent therefor, subject only to the conditions and requirements set forth in this title. Sole Exceptions to Subject Matter Eligibility: b. A claimed invention is ineligible under subsection (a) if and only if the claimed invention as a whole (i) exists in nature independently of and prior to any human activity or (ii) is performed solely in the human mind. Sole Eligibility Standard: c. The eligibility of a claimed invention under subsections (a) and (b) shall be determined without regard to: (i) the requirements or conditions of sections 102, 103, and 112 of this title; (ii) the manner in which the claimed invention was made or discovered; or (iii) whether the claimed invention includes an inventive concept.
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Trademarks · Latest News UK trademark attorneys could lose millions post-Brexit, warns CITMA The Chartered Institute of Trademark Attorneys (CITMA) has warned of the massive financial impacts to UK attorneys if they lose their right to represent clients at the EU Intellectual Property Office (EUIPO) post-Brexit. CITMA was among a number of organisations that gave evidence as part of a parliamentary report on Brexit’s effects on legal services. It found that UK Chartered Trade Mark Attorneys (CTMAs) would lose between £789 million and £1.7 billion per year if they lost the right to represent clients at the EUIPO. Following the report, the All-Party Parliamentary Group (APPG) on Legal and Constitutional Affairs recommended that the UK Government “seek to secure rights of audience in EU courts such as the Court of Justice of the EU and the EUIPO”. The APPG’s report further recommends that: “A ‘no deal’ scenario should be avoided at all costs.”
HGF adds biotech and pharma expert as partner HGF has added Leena Contarino as a partner to its Basel office. Contarino, who has extensive experience in the patent industry, previously served as vice president of intellectual property for Roivant Sciences Europe, where she managed multiple patent portfolios related to drugs. Her expertise covers both preparing and prosecuting patent applications, strategic patent portfolio review and management, and IP due diligence.
“The government should ensure that any future relationship with the EU includes a mechanism for UK lawyers to practice EU law via the mutual recognition of professional qualifications and law firm structures.” “Any transitional agreement should replicate the current legal framework as far as possible to ensure legal certainty and prevent businesses and individuals from having to adapt to changes in their rights and obligations twice—once during a transitional phase and once upon implementation of a new UK-EU agreement.” The chair of the UK’s Intellectual Property Regulation Board the Rt Hon Lord Chris Smith of Finsbury asked the UK Government if they would seek to seek to continue the UK’s participation in the EUIPO post-Brexit earlier in October.
She also served as a partner at Nixon Peabody for over 15 years.
Responding to the report, CITMA president Tania Clark said: “We welcome this report, particularly the call for rights of representation at the EUIPO. Not maintaining these rights will be bad for businesses as well as for the Chartered Trade Mark Attorneys who represent them at an EU level.”
Mike Nelson, partner at HGF, commented on the move: “Leena Contarino’s appointment is an exciting development in HGF’s expansion across mainland Europe.”
“Chartered Trade Mark Attorneys are the largest single group responsible for EU trademarks and registered community designs from non-EEA countries, bringing in millions of pounds to the legal sector every year.”
Contarino also advises clients on protecting inventions in the areas of DNA, RNA, and proteins.
“We are delighted to welcome Contarino to HGF and the experience and expertise she brings to our life science and pharmaceutical team in the Basel office.”
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She concluded: “The APPG’s report also makes important recommendations on mutual recognition of professional qualifications, replicating current legal frameworks and avoiding ‘no deal’. All of which we fully support.” www.ippromagazine.com
Trademarks · Latest News Canada joins the Hague agreement Canada has officially acceded to the Hague agreement, a system that allows intellectual property rights holders to register designs across participating jurisdictions through a single international application. Canada officially joined the system on 5 November and will now implement the Hague system, which covers industrial designs, with the aim of modernising Canada’s industrial design regime. The Hague System allows IP holders to register designs across numerous jurisdictions through filing a single international application through the World Intellectual Property Organization. WIPO director general Francis Gurry commented: “WIPO is delighted that Canada, one
of the world’s leading economies, has joined the Hague System, making the System even more attractive for existing and future members. We look forward to further expansion of the Hague System so it becomes a truly international arrangement that facilitates the process of seeking design protection for designers the world over.” The chair of the Intellectual Property Institute of Canada’s Industrial Design Committee, Curtis Behmann, added: “Canada’s accession to the Hague agreement enables companies to use the centralised international system to protect their unique designs in Canada and other countries.”
Clarivate Analytics acquires TrademarkVision Clarivate Analytics has acquired Australian artificial intelligence (AI) technology company TrademarkVision. The acquisition will see TrademarkVision join trademark research company CompuMark as part of the Clarivate family.
TrademarkVision will be able to leverage CompuMark’s expertise in the trademark industry and vast global distribution channels to ensure our next generation of solutions reach trademark professionals around the world.” Trim: 92(W) x 120mm (H)
TrademarkVision uses an AI-powered image recognition software which can visually search for artwork, images and designs to allow prospective trademark owners to determine whether a proposed trademark logo is acceptable or if it infringes on an existing trademark. TrademarkVision’s CEO and founder Sandra Mau will remain, along with COO Cameron Mitchell and TrademarkVisions teams based in Brisbane, Australia, and Pittsburgh, US. Currently, CompuMark uses TrademarkVision technology in its TM go365 tool which it uses to efficiently manage portfolios. The purchase of TrademarkVision is Clarivate’s third acquisition in 18 months, following the acquisition of technology start-ups Kopernio and Publons. Commenting on the acquisition, CompuMark president Jeff Roy explained: “CompuMark is making significant investments in its product portfolio and the business as a whole by investing in best-of-breed image recognition technology and expertise in AI.” Mau added: “As part of CompuMark,
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Copyright · Latest News Games 4 EU concerned about no-deal IP Brexit impact Games 4 EU has expressed concerns about the effects of a no-deal Brexit or hard Brexit on the UK’s video games industry, including issues relating to intellectual property law. According to Games 4 EU’s Brexit guide for interactive entertainment, there are particular concerns around access to personal data, customs, VAT and IP law systems.
Games 4 EU’s report observed that IP law is “fundamentally governed” at a national level, but harmonisation across the EU over the past 50 years has led to a single trademark law at an EU level. It said: “Interactive entertainment businesses in Europe are driven by how the EU approaches IP matters.”
Specifically, Games 4 EU explained that the removal of the UK from the EU IP law system will have impacts on trademark, design and patent protection as well as wider effects.
Games 4 EU said that the practical impacts would be a loss of the country of origin principle, orphan works, portability right and the sui generis database right.
It added: “IP law is the basic legal building block of making games, esports, interactive broadcast, film, music—absolutely all creative products and technology. From a legal perspective, a video game is literally just a bundle of IP rights. IP law is essential for the protection of an interactive entertainment business’ core value; to create a level playing field across businesses; and to police the rights of free expression and enjoyment for consumers, creators and society generally.”
Focusing on the country of origin principle, Games 4 EU said it is “particularly important because it permits a business creating and using content around the EU to apply only the IP rules where the content originated, not the IP rules of 27 other member states as well. All of this creates considerable uncertainty about exactly what the legal basis for protecting copyright works in the UK will be post-Brexit.”
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Copyright · Latest News DMCA exemptions don’t go far enough, says EFF The Electronic Frontier Foundation (EFF) has welcomed the new Digital Millennium Copyright Act (DMCA) exemptions but said they don’t go far enough. According to the EFF, the DMCA is a “dangerous law” that “inhibits free speech, harms competition, and threatens digital security”. It said the DMCA’s exemptions are “still too narrow and too complex for most technology users”. Under the new exemptions, people who repair digital devices, including vehicles and home appliances, will have more protection from legal threats and filmmakers, students, and ebook creators will be able to use video clips more freely. People can now also jailbreak and modify voice assistant devices and security researchers will have more freedom to investigate and correct flaws on a wider range of devices.
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But the US Copyright Office rejected proposals from many people to simplify the exceptions so that ordinary people can use them without lawyers, according to the EFF. “The exemptions announced on [25 October] will help more creators and technology users, but they don’t save the law from being an unconstitutional restraint on freedom of speech,” it said. “The constitution doesn’t permit speech licensing regimes like this rulemaking that give government officials the power to deny people permission to express themselves using technology where officials claim total discretion to grant or deny permission without binding legal standards or judicial oversight.” Have a news story we should cover? Contact us via barneydixon@blackknightmedialtd.com
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Copyright updates around the world Japan The Japan Music Association for Copyright (JASRAC) said it will be increasing music royalties for foreign films following an agreement between it and the National Federation of Life and Sanitation Societies Association. JASRAC said it will collect increased royalties from foreign films released in Japan between November 2018 to March 2021. Films released during this time period will see JASRAC collect music royalties of between JPY150,000 ($1,321) to JPY300,000 ($2,643).
United States US president Donald Trump signed the Music Modernization Act into law in October. The law will introduce royalty payments for songs recorded prior to 1972, which currently aren’t subject to royalty requirements. Also introduced under the bill, are laws that force streaming sites like Apple Music and Spotify to pay producer royalties and streamline their licensing processes. The Music Licensing Collective, an organisation which will be responsible for collecting and distributing royalty payments starting in 2021, will be created as part of the bill. President Trump said that bill will be used to “close loopholes in our digital royalty laws to ensure that songwriters, artists, producers, and providers receive fair payment for the licensing of music”.
European Union The European Parliament voted in favour of adopting controversial copyright reforms in September. The main concerns of the reforms revolve around articles 11 and 13 of the EU’s Copyright Directive, which were initially rejected by members of the European Parliament in July, but both returned to the vote after amendments had been made. Article 11 brings a so-called ‘link tax’ that would allow publishers to secure licence fees from search engines and other intermediaries who use their content for up to 20 years from publication, while article 13 shifts the burden of responsibility for copyright infringement to the platforms, forcing them to readjust their content protection mechanisms and take down user content at the request of rights owners. Although the directive is an optional implementation across the EU, it has caused major concerns across the continent.
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Nigeria Nigeria’s Copyright commission director general, Afam Ezekude, recently announced that several members of the Copyright Society of Nigeria are on the receiving end of criminal charges for “carrying out the duties of a collecting society without the approval of the Nigerian Copyright Commission”. Chinedu Chukwuji, Bernice Eremieghe, and Anne Okomi, along with Copyright Society of Nigeria chief Tony Okoroji are accused of demanding royalties from Lagos-based media company Noah’s Ark. The charges were filed on the 8 October at the Lagos Division of the Federal High Court.
China The National Copyright Administration of the People’s Republic of China (NCAC) recently revealed that it is monitoring 58 major online platforms, as part of its copyright protection efforts. The monitored sites include video and music streaming sites, and cloud storage service providers. Overall, China’s copyright administration departments has a watch list of more than 3,000 sites.
Canada To quell “negligible” remuneration for artists, the Screen Composers Guild of Canada (SCGC) recently called for a tax on consumers who download over 15 gigabytes of data a month. The ‘copyright levy’ would allow home internet users fifteen gigabytes of unlevied data per-month which it says is “ample room for email, commerce and downloading”.
South Africa South Africa has added additional clauses to its controversial Copyright Amendment Bill. New changes include an updated definition of a collecting society, adding the rights of distribution and rental, and requiring recording of acts in respect of audiovisual works. Under the changes any person who intentionally fails to register an audiovisual work could face up to five years in prison, a fine, or both. Another key change in the bill is the attempt to give more power to genuine collecting societies by giving them the right to request information, and making it a criminal offence for any failure to provide the requested information.
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LES · Interview
Past and president LES USA & Canada president Robert Held and immediate past-president Bill Elkington discuss the future of the society Barney Dixon reports To what extent was your tenure a success? What does the future look like for LES? Bill Elkington: We’re all transients here, but on the whole, we have achieved much thanks to current president Robert Held, past president Brian O’Shaughnessy, and president elect, Gary Fedorochko, and thanks to a whole bunch of other people on the board and in LES leadership, including our CEO Kim Chotkowski. As we plan for the future, we are changing our governance structure to make it more inclusive, and we are engaging in a broader set of people. We’re doing this by moving the board out of the business of leading the operating functions and developing a leadership structure that will take care of those vital operating matters. We’ve adopted a new tagline: “Connecting and inspiring the intellectual capital community.” The key words there are ‘community’ and ‘intellectual capital’. We really believe that we are trying to serve an innovation ecosystem that includes areas that are not necessarily protected by intellectual property law, but are nevertheless very valuable to companies. The idea is to make the tent much bigger. We started life as a professional organisation with a licensing focus, but we have a very diverse membership, for many of whom licensing is a part-time activity or who may not do licensing at all. These members do management of intellectual capital outside of licensing and so to serve them better we are expanding the set of disciplines and activities that we’re addressing in the content of our meetings, the education we do, and the public policy that we are involved with.
Have you seen a shift in your membership during your tenure? Elkington: Yes. There is a significant convergence of the life sciences and high-tech industries in medical devices, diagnostics technologies, and approaches. There is a lot of convergence around artificial intelligence (AI) and big data.
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We have developed a new committee within in our high tech sector to address AI issues. We see the need to serve the rapidly emerging convergence zones between high-tech and life sciences. We do know there is a great deal of interest in AI and big data; so we are adjusting our committee structures, our content, and our focus to address those emerging areas.
What is the reason behind the LES Standards Initiative? Elkington: The origins, I’d trace to a board dinner in Philadelphia at the end of our 2013 Annual Meeting. We realised that we were known for our education, but not for changing the world in a fundamental way. We were not considered a thought leader in innovation management or intellectual capital management. We questioned what more we could do besides education. Standards was suggested, and that idea got stuck in my brain. Held had spent a number of years at ASTM International, a standards organisation, and it was already planted in his brain. We really want to change the world and significantly improve the way people understand intellectual capital management. Most of the people in operating companies don’t know what intellectual capital is and standards, to us, seem to be the best way to effect this fundamental change.
Are you looking to work with any small- and mediumsized enterprises or technology start-ups? Elkington: One of the new standard committees is specifically geared towards developing an intellectual capital management standard for start-ups. What does a start-up have? Very little in terms of assets. The principal thing it will have early on that differentiates it from everybody else is its human capital and its intellectual capital. Most entrepreneurs are not schooled in what intellectual capital is or how to protect it and extract value from it. A standard would go a long way toward helping them figure out how to do this. They can refer to the standard and learn from us how to apply the standard effectively to their business. www.ippromagazine.com
LES ¡ Interview
The courts and executive branch agencies around the world are now weighing in on what is fair and reasonable, but most of those involved in this work are not experts in the field of SEPs and patent valuation in a FRAND context Robert Held President and chair LES USA & Canada
LES Standards recently launched a committee on FRAND licensing. What does this mean for the industry? Elkington: There are seven committees currently. The fair, reasonable and non-discriminatory (FRAND) licensing standard committee is one of the most recent, and it is important because hundreds of billions of dollars change hands annually around licensing standard-essential patents (SEPs). Companies, therefore, stand to make or pay lots of money. So a standard in the area can have significant implications.
For most technical standards, there is a requirement to licence SEPs on a FRAND basis. Right now the courts are making decisions around FRAND, which is very costly, timeconsuming and not very efficient. We are trying to use industry self-regulation through the standards process to address this very important area, make the licensing of SEPs much more predictable and to make innovation in the area of technical standards much more predictable in terms of financial outcomes. Robert Held: The other clear example that we see with the standards work is in the valuation group. Imagine, hundreds of
The principal thing a startup will have early on is human and intellectual capital
Bill Elkington Immediate past-president and past-chair LES USA & Canada
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www.ippromagazine.com
LES · Interview court cases going to judges every year on the infringement of IP—it would be great if the sides would be able to put together what they believe is the valuation and use the LES standard for IP valuation to come up with a result.
What kinds of discussions about FRAND and SEPs are taking place in the US? Are these discussions being represented globally? Held: The courts and executive branch agencies around the world are now weighing in on what is fair and reasonable, but most of those involved in this work are not experts in the field of SEPs and patent valuation in a FRAND context. However, the global LES membership roster is full of people with deep expertise in these areas who can help spell out how best to proceed. It is important to everybody that we have common standards across jurisdictions, technologies, businesses, and business models so that we don’t slow down innovation, so that we appropriately reward the innovators, and so that we don’t unduly burden licensees and consumers.
Robert, what are your plans for the role of president of LES USA & Canda? Held: I have been president-elect for a year, but I have been on the LES board since 2012. Prior to that, I was the chair of the high-tech sector and before that, the chair of the LES automotive and aerospace committee of the high-tech sector. Having been on the board for six years, I’ve been involved in many strategic initiatives, including managing our standards initiative and revising the LES governance structure. Part of the decision to revise the LES governance structure had to do with the transient nature of the organisation’s presidency and chairmanship. I first raised the transient nature of this role as an issue back in 2014, calling at that time for us to hire a CEO to provide more constant and consistent senior guidance and direction for both our strategic and operational work, as an organisation. The result was that we hired Chotkowski in early 2017. She is an industry veteran who has been in the field of intellectual capital management for her entire career. She has been wonderful as the year-over-year guiding light. We are a more stable organisation because of her. We have cut the board down to no more than 17 members. We have created a management counsel and an advisory council. The management council is now populated by members of LES who have an interest in managing various aspects of LES operations.
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LES is in a unique position, as we’re the only businesscentric, global community of intellectual capital management people. We are made up of a broad diversity of disciplines and enterprises all focused on business and financial matters in the management of intellectual capital. As a result, we can put together education programmes in intellectual capital management that nobody else can. I look at our educational curriculum as one of our greatest and proudest achievements. Having said all of that, my plans are to continue to improve the society’s governance model, more thoroughly engage members in the vital work of the society, mature our standards
initiative, and broaden our meeting content and educational offerings so that we fully address the needs of the intellectual capital management community.
What are the biggest challenges and opportunities LES is likely to face going forward? Held: The scope of what we have taken on is huge. There is a great deal of work to do. The challenge is to find the talent willing to devote the time needed to make meaningful progress across the full range of objectives we have defined for ourselves. But the opportunity is spectacular. It’s inspiring. It is nothing short of making the world a better place, through excellence in intellectual capital management. Elkington: The percentage value of operating companies’ equity ascribable to intellectual capital assets is in the neighbourhood of 80 percent, but there is very little understanding within many operating companies of what intellectual capital is. Our opportunity is to help people understand that better and help them manage their most valuable assets in a more effective and efficient way. There are two major asset classes in a 21st-century operating company; the first is company’s human capital, and the second is its intellectual capital. Today, there is no academic field and typically no organisational structure in companies that people call intellectual capital management. So what we have taken on here in LES is the development of a new field of endeavour in business management, beginning with a foundation based on intellectual capital management standards. IPPro www.ippromagazine.com
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BRI Standard · Opinion
John Thorne: the BRI standard change is a mistake A recent change to the standard for challenging and overturning patents at the PTAB is inconsistent with other patent office proceedings and should be reversed, says the High Tech Investors Alliance’s general counsel, John Thorne On 11 October, the US Patent and Trademark Office (USPTO) announced that it is changing the standard for challenging and overturning patents before the Patent Trial and Appeals Board (PTAB) in inter partes review, post-grant review, and covered business method review proceedings. The USPTO is replacing the broadest reasonable interpretation (BRI) standard with the claim standard used in federal district court. The change is a mistake and should be reversed. To begin, the notion that there needs to be consistency between the standards used in federal court and before the PTAB is flawed. The purpose of PTAB trials is fundamentally different from the purpose of federal court litigation. Court proceedings exist to resolve disputes between private parties. A court decides whether the defendant infringed the patent and whether the patent is valid in the first place. Validity requires proof by clear, convincing evidence, and when there is a validity challenge to the patent, the patentee has no opportunity in court to amend its claims to avoid invalidity. In contrast, the role of the PTAB is to ensure that only clear and valid claims emerge from the patent office. The constitutional mandate of the USPTO is to promote the progress of science and the useful arts. One consequence of that mandate is that, unlike in federal court, the PTAB evaluates patentability under a lower ‘preponderance of the evidence’ standard than is used in district court. Another natural corollary to the constitutional mandate—until recently— was the BRI standard. Where patent claims may reasonably be interpreted to cover old technology, the patent office cannot, consistent with its constitutional mandate, allow the claims to issue. Patents arguably covering old technologies impede innovation. To confirm the validity of such patents would chill, rather than advance, the progress of science. Advocates of the patent office’s new rule have suggested that, in some instances, there may be little difference between a construction under the BRI standard and a construction under
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the district court standard, known as the Phillips standard. This argument misses the point. It is the circumstances where the standards do result in different outcomes that are the ones that must be considered. A BRI construction will differ from a Phillips construction where those of skill in the art, having read the claims, the specification, the prosecution history, and relevant prior art, might reasonably disagree about the scope of a patent’s claim. In such close cases, courts do not favour the broader construction, in part because a patentee cannot amend claims in district court litigation. The PTAB, by contrast, has until now adopted the broadest reasonable construction, potentially requiring the patent owner to narrow claims to avoid a finding of unpatentability. This incentive promotes clearly and precisely worded claims, powerfully advancing the core purpose of the patent system. Those who advocate the new rule have argued that the PTAB should be using the same standard as federal courts do for consistency. This argument, too, lacks merit. The USPTO properly uses the BRI standard during patent examination; the move away from the BRI standard merely replaces one inconsistency with another. Moreover, as noted above, PTAB proceedings primarily exist, not to resolve disputes between private parties, but to enhance patent quality. The PTAB’s special expertise in evaluating patent applications means that the agency also has the expertise to later reconsider its own decisions from a fresh perspective if necessary. The PTAB cannot properly reconsider its original decision if the standard for claim interpretation differs during the reconsideration process. In fact, use of the Phillips standard in the PTAB could promote inconsistency with district court proceedings rather than consistency. Even though the PTAB will apply nominally the same standard as the district court, there is no guarantee that the district court and the PTAB will reach the same conclusion as to the proper interpretation. Any conflict between the two interpretations may need to be resolved on appeal, a process www.ippromagazine.com
BRI Standard · Opinion
that could take years all told. Even then, if different evidence or arguments were presented to the PTAB than to the district court, the Federal Circuit could affirm different claim constructions based on different records before it.
challenges. And a broad standard is fair, since the patent holder controls the scope of the claims, through amendment, both during initial examination as well as during PTAB proceedings.
Whether or not the new standard results in inconsistency with district courts, there is no doubt it will result in inconsistency with other patent office proceedings. Patents will be examined under the BRI standard. Reexaminations and reissues will be conducted under the BRI standard. Yet post-grant proceedings before the PTAB will use a different standard. There is no convincing rationale for the difference.
The USPTO’s new standard is a step backward in the ongoing effort to improve patent quality in the US. For the sake of the US patent system—a major facilitator of America’s culture of innovation— the USPTO should reverse its decision.
Indeed, inter partes review was conceived as a replacement for earlier inter partes reexamination proceedings, which applied the BRI standard for the decade in which it was in existence. If BRI promotes patent quality during examination, reexamination, and reissue—as is widely accepted—then it equally promotes patent quality in the context of PTAB trials. Moreover, the BRI standard benefits the public and patentees alike. As the US Supreme Court has found, the Patent Act “attempts to maintain” a “delicate balance ... between inventors, who rely on the promise of the law to bring the invention forth, and the public, which should be encouraged to pursue innovations, creations, and new ideas beyond the inventor’s exclusive rights.”
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According to the Supreme Court, a “patent holder should know what he owns, and the public should know what he does not.” Because of its incentives to amend claims to narrowly and clearly define the claimed subject matter, BRI is a more reliable standard for giving public notice than Phillips. Placing, as BRI does, the burden of clarity on patent holders also benefits the holders themselves. A broad standard in the patent office means that a validity finding there may carry significant weight in defusing future validity
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John Thorne General counsel High Tech Investors Alliance
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Indian Trademarks · Feature
Well-known trademarks: an Indian perspective Omesh Puri, associate partner at LexOrbis, discusses India’s new rules governing ‘well-known’ trademarks With the implementation of new trademark rules in 2017, the Government of India has introduced a new facility for the trademark owners to apply for determination of their trademarks as ‘well-known’ marks in India. Prior to the introduction of this new procedure, trademark owners were applying for entry of their trademarks in the list of ‘well-known’ trademarks based on the determination of such status in a judicial pronouncement. The new rules, however, have simplified the procedure and now trademark owners can apply directly to the trademark office in India for such determination, based on the statement of case and evidence supplied by them to the trademark office. Once a trademark is determined and included in the list of ‘well-known’ marks, the protection is afforded to the said mark across all goods and services which can also serve to strengthen the ground of ‘dilution’ in the case of infringement. The well-known status enables the Indian trademark office to object and refuse the applications filed by third parties for identical or similar marks. It also enables trademark owners to effectively undertake brand protection measures in India by initiating civil and/or criminal actions against the manufacturing and sale of infringing and counterfeit products and merchandise, as well as initiating administrative/customs actions against the imports of infringing and counterfeits goods.
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Some of the trademarks that were included by the trademark office in the list of ‘well-known’ marks based on the determination by the courts in India are Microsoft, Benz, Caterpillar, Whirlpool, Glaxo, Pepsi, Yahoo, Dupont, 7 o’clock, Kit Kat, Nestle, BBC, Amul, Toyota, Ford and Sony.
Procedure for applying for ‘well-known’ status a. The applicant has to file an application with the trademark office along with a statement of case and evidence by way of an affidavit in support of the claim. The document submitted along with statement of case as evidence/supporting document should be in PDF format with resolution of 200 X 100 dpi on A4 size papers the total file size is not required to be more than 10mb. The official fee is Rs. 100,000 (approximately $1450). b. The registrar may call for additional documents, if he thinks that documents supplied earlier were not sufficient. c. The registrar may invite objections from the general public by publication. The objections, if any, have to be filed within 30 days from the date of invitation of such objection.
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Indian Trademarks · Feature Based on the guidelines issued by the Office of the Controller General of Patents, Designs and Trademarks in this regard and based on judicial determination of a mark as ‘well-known’ trademark, the following documents/evidence along with the statement of case may be submitted with the trademark office:
Omesh Puri Associate partner LexOrbis d. If no objection is received, the registrar may include the mark in the list of ‘well-known’ trademarks as maintained by the trademark office. e. If at any time it was found that a trademark has been erroneously/inadvertently included or is not justified to be in the list of ‘well-known’ mark, the registrar may remove it from the list after providing due opportunity of hearing to the concerned party.
Audited sales figures in India for the past 10 years or more for the product sold under the mark and comparison of that revenue with the market size for the relevant product in India. In summary, the market share enjoyed by the product under the mark in that segment.
Promotion of the trade mark including advertising or publicity and presentation, at fairs or exhibition of the goods under the mark.
Documents evidencing recognition by relevant bodies/trade associations.
Promotional expenses for the past 10 years. Industry awards and accolades published in leading newspapers, publications, magazines and trade journals.
Market survey from independent agencies, if any, establishing the degree of recall of the brand by relevant segment of the public and trade.
Details of enforcement actions for protecting the mark in India including decisions of courts, the Registrar of Trademarks/Intellectual Property Appellate Board in India conferring the well-known status to the applied mark.
International reputation including the list of registrations/applications filed in other countries, advertisement appeared in multijurisdictional publications, sales at duty free shops or at airports, and more.
Copies of orders/decisions/judgments of the courts in other jurisdictions/countries award.
Documents/evidences required for filing application under rule 124 In order to file a request to determine a mark as a ‘well-known trademark’, documents evidencing a high level of knowledge and recognition accrued to the mark among the relevant sections of the public are required. The bulk of the evidence must be satisfactory to demonstrate the fame and popularity of the mark most certainly among the relevant sections of the public and members of trade if not among the public at large /majority of the population in India. Since the threshold to prove the ‘well-known’ status of a trademark is very high, the request is required to be supported with cogent documents/information. The quality of evidence is required to be more important than the quantity. IPPro
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With the above procedure in place, it is expected to have more uniformity in determining the wellknown status for the trademarks in India.
www.ippromagazine.com
Fintech and IP · Feature
How fintech will change IP forever Justin Simpson, the founder of inovia, talks about his latest venture, Billtrader, and how fintech startups are changing the IP landscape What is fintech? My wife is from Finland and thought it was Finnish technology, but it’s actually financial technology. Fintech isn’t something new. The finance industry has been using computing technology for decades. However, a new wave of fintech has emerged in recent years, due to huge reductions in the cost and complication in building software applications, and a string of big successes by small, nimble companies. One example is Stripe, which allows businesses of every size to accept online payments via their smartphone. Afterpay allows retailers to offer individually tailored consumer credit solutions. These new startups aim to replace and augment what the incumbent financial institutions have been offering for years at high costs, despite their limited functionality. When I finished my computer science degree in 1994 (the year before the internet took off and my degree became redundant) no one was using online solutions for their finances. It took decades for the trust levels to build up to where they are today, with consumers mocking suppliers if they don’t have a way to pay online.
How is fintech changing the finance industry? Like inovia disrupted the foreign patent filing space, fintech solutions are bringing sweeping changes to the finance industry. Often with fintech there is a new focus on the end customer, attracting them with the exciting interactivity they may be used to seeing in other industries at the forefront of technology adoption, such as consumer technology and entertainment.
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Sometimes the attraction is making life easier by simplifying the clunky processes that banks, insurance companies and others still subject them to. Or cutting costs by improving efficiencies and removing unnecessary middlemen. Prospa, for example, is an online lending service provider for small business. SelfWealth is an online share trading platform for ‘self-directed’ investors. These new players are really shaking up the finance industry, and the big banks are struggling to keep up.
Where does the IP industry sit on the fintech adoption spectrum? Embarrassingly behind the times, I’m afraid. Intellectual property firms have very complicated accounting requirements and yet are often using inflexible tools that were invented in the ‘90s. For an industry focused on serving the world’s innovators, the efficiencies that modern software tools can provide are rarely seen in the accounts departments of IP firms. In speaking to IP firms around the world, we’ve heard stories of IP firms in Canada sending money to America by cheque. We’ve heard of accounts people having to physically turn up to a bank branch weekly, in order to wire money overseas. And you should hear about some of the fees firms are paying. Japanese IP firms are charged $50 every time money arrives into their account. US firms, wiring US dollars overseas are paying $35 per transfer. It’s astonishing the inefficiencies firms are putting up with and it’s costing the partners real money—in staff costs for the time it takes them to handle payments, and in bank fees they pay to both send and receive funds. www.ippromagazine.com
Fintech and IP ¡ Feature
What potential do fintech innovations have for the IP industry? One of the great things about fintech companies is that they build bridges between software packages offered by different companies. By offering the ability to integrate, customers no longer have to stick with just one provider for all of their needs, nor must they compromise to get what they want. They can choose best-of-breed software for everything they need; customising a solution, rather than having to re-start their IT stack from scratch, or committing to massive IT build costs to make new additions work within their existing framework. Billtrader, for example, integrates with popular traditional IP management software systems like Aderant Expert and Inprotech, as well as the latest cloud-based accounting solutions like SAGEOne and Xero. Billtrader is also designed to integrate with popular document management systems like iManage and e-billing solutions like Thomson Legal tracker, so firms can still make use of parts of their existing systems, but use fintech to make them run faster, smoother and smarter.
Why do you think the IP industry is ripe for new fintech solutions? Niche industries, such as IP, have been ignored by big technology companies for decades, and have been putting up
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www.ippromagazine.com
Fintech and IP · Feature
The IP industry as a whole exchanges billions of dollars of foreign currency every year, very inefficiently, using outdated technology
Twith generic solutions that don’t fit their specific requirements. Fintech startups bring features uniquely suited to specific industries, without heavy customisation costs or feature sacrifices. For example, there are invoice capture solutions in the market that allow companies to reduce their accounts payable data capture costs. But none of them handle currencies well, and none of them capture the references/matter numbers that IP firms need so they can charge the right amounts to the right clients. Billtrader does that—seamlessly capturing all the foreign agent data and pushing it in real time into an IP firm’s accounting system. A solution like that frees up a lot of time for accounting staff, who are often overworked. In a similar way, IP firms do a lot of foreign currency conversions. For most firms, at least half of their annual revenue has a foreign exchange component to it. But very few firms have considered utilising fintech to streamline the process. The most sophisticated approach we’ve seen is firms having accounts in different currencies, so they can use incoming USD payments to pay outgoing USD debts. Whilst that approach has its benefits (a) it doesn’t solve the cash flow issue firms experience waiting months to be paid; and (b) at the end of the day a Canadian firm counts it profit in Canadian dollars and the USD:CAD rate on the day they choose to convert can play havoc with their profits. In contrast, Billtrader uses fintech to generate forward currency rates, which allows us to give an IP firm the guaranteed CAD price it needs to pay a Japanese Yen invoice in three months’ time. We take the guesswork out of the amount firms need to charge their local clients and keeps them from coming up short.
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The IP industry as a whole exchanges billions of dollars of foreign currency every year, very inefficiently, using outdated technology. Firms like Billtrader, which take the latest fintech solutions and customise them for the IP space, will do very well.
Why do you think Billtrader will change the IP industry? In the 70’s, IP firms started outsourcing their annuity payments to companies like Dennemeyer and CPA Global. Today there are dozens of annuity firms vying for market share. When I founded inovia in 2002 no one was outsourcing foreign patent filing. I grew that company to be the number one in the world in terms of patent cooperation treaty national stage entries, and at last count it had over 20 copycats competing for that market. Billtrader brings fintech innovation to the IP industry in several ways. First, we use best-of-breed supply chain finance solutions to allow us to pay IP firms instantly. Instead of waiting three or four months to be paid, firms can get instant credit for their outstanding bills. Second, we’ve adapted the latest data capture tools and artificial intelligence to digitally capture all the information from foreign agent bills and to push that information seamlessly into any accounting system. Those fintech processes eliminate manual data entry, saving time and staff costs. Third, because we have bank accounts around the world, we can eliminate wire transfers. A firm in the UK can pay us into our bank account in London and we’ll pay their colleague in the US, from a US account, without funds actually travelling across the pond. The system we’ve built matches the payments across the globe, eliminating the need for expensive wire transfers. Because of the fintech innovations we’ve adapted and customised for the IP industry, we can virtually eliminate bank fees. I know I like my own ideas, and my wife tells me I am an eternal optimist, but so far over 50 IP attorneys have liked the Billtrader idea so much they’ve invested over $4 million in us. And despite having only started promoting Billtrader via IP conferences in the last two months, our international sales team now have over 100 IP firms who’ve either committed to use us or expressed interest in doing so. Mark my words. fintech solutions like Billtrader will change the IP world forever. For the better. IPPro www.ippromagazine.com
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The size of the problem
Brand Protection · Panel What are some of the key issues facing brands right now? Nick Wenban-Smith: One of the biggest issues currently facing brands is the policing of counterfeiting. The internet has vastly broadened criminals’ markets and eased their access to a wide range of customers, while also providing the anonymity that makes tracking them incredibly hard. Criminal activity has also been aided by changing consumer behaviours: many now prefer to shop online and consumers expect good deals and cut-prices, which can attract them to counterfeit goods. Brands must better educate their customers on the benefits and importance of buying higher-quality originals, and support them in verifying the authenticity of their purchases. Robert Stolk: All kinds of brands—whether they’re producing clothing, pharmaceuticals, electronic equipment or other goods— are subject to counterfeiters and imitators in our current day and age. There are a variety of channels through which counterfeits can be sold, including online marketplaces and social media platforms, where such counterfeits are mass-marketed to online shoppers on a daily basis. Additionally, what we find a key issue facing brands is the lack of public awareness of counterfeiting and its ensuing damage—damage done not only to the brands they’re imitating, but to the consumers themselves. Elena Galletti: I would divide issues into two major topics: budget constraints and the speed to act. The first is obvious: management doesn’t always understands how important is to act with a proper budget, in order to stop infringement or to communicate that the company is proactive and doesn’t tolerate a breach of its IP rights. The second is crucial: with online becoming more and more important and attractive for customers and counterfeiter party, the speed in which a company reacts is the key for a successful anti-counterfeiting procedure and subsequent communication campaign.
How big is the problem of counterfeits and how internet affected distribution? Wenban-Smith: Counterfeits are a major problem due to the nature of the internet, where anonymity is combined with the speed at which millions of people can view and buy counterfeit goods. This is compounded by the changing consumer behaviours and, more worryingly, there is a disinterest among some consumers in whether they are purchasing an original or a counterfeit. People can be happy to pay less for a good fake than owning the authentic product from a named brand. This fuels the criminal activity because there is a ready market for it. The internet has also opened up more distribution options to those selling counterfeits. Criminals are now able to use some of the wellknown marketplace sites to sell their products, often without detection by the business or the consumer.
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There is a disinterest among some consumers in whether they are purchasing an original or a counterfeit Nick Wenban-Smith Stolk: The mass production of counterfeit goods is in no small part due to the global accessibility that the internet provides its users. It’s never been easier for a consumer to source products from China directly to their front door, all while sitting in front of their computer. Online shoppers become easy targets for counterfeiters because they can’t identify the authenticity of the product until they have it in their hands, after they’ve made the purchase. All across the globe, we see big retailers struggling to compete with online platforms such as Amazon and Alibaba. With more online sales, counterfeiters can swiftly step in and get a piece of the pie. But it’s a problem that we’re working towards solving, brand by brand. Foreman: One cannot underestimate the size of the problem. For every step forward made by rights holders (and there are many), the counterfeiters seem to take two steps back. The internet and more importantly, consumers around the world embracing online retail, has only exacerbated the challenge. In the past, counterfeit products arrived in bulk, often in containers, now they are as likely to be sent by post, through legitimate courier/postal channels. We have also seen the rise of huge retail platforms, selling both to business-to-consumer and business-to-business, which provides counterfeiters with an instant virtual shop window. It is easy to beat up on the platforms and demand that they do more to prevent the sale of counterfeit products, but the scale of the problem renders it a mammoth task even with a willing platform. Galletti: Problems are huge and affect more and more brands since distribution channels (mostly online) are growing and duplicate every day. That’s why it is absolutely important for brands that the biggest marketplace are conscious of the phenomenon and are willing to cooperate for a better customer experience. Moreover, international law should be implemented in order to truly punish the counterfeiter: nowadays producing fakes is quite convenient and the way to hide the company behind the products is pretty simple. This should change with a deep enforcement task force.
How can brands stay protected? Wenban-Smith: In today’s digital age, brand protection requires digital solutions and a firm eye on the unique challenges presented by the internet. Firstly, companies must focus a huge effort on consumer education to help online www.ippromagazine.com
The first step to protecting your brand online is to enlist a brand protection team Robert Stolk shoppers recognise counterfeit goods and also understand the negative consequences of purchasing them, as there remains a market for fake goods. Secondly, brands need to focus on policing and should be investing in the latest innovative tools and software to ensure they are protecting their brand assets, revenue and intellectual property to the best of their abilities. Brand protection is a major expense but must be embraced as a necessary cost of operating a brand. Those who move slowly will find the company could become irredeemably de-valued. Finally, brands should always consider innovative digital options for helping to secure their brands. One example of these is investing in a dot brand, a unique domain name that is operated solely by the brand, such as .BBC and .Google. This not only provides autonomy over the namespace, it also promotes trust with customers and makes it harder for criminals to execute phishing scams or sell counterfeit goods on domain names featuring brand name typos. Stolk: Naturally, the first step to protecting your brand online is to enlist a brand protection team, which can develop a strategy and implement their software in a way that best suits your brand protection needs. With this in place, you can then counteract against the infringers who are tarnishing your brand and, though removing the listings makes sense, we feel that to really have an impact, brand owners need to develop an online-to-offline strategy. We believe it’s most effective to use the information collected by the software and to apply it in offline actions to hit and disrupt active criminal networks. Though monitoring and enforcing are a big step in the right direction, platforms such as Amazon and Facebook play a key role in stopping IP infringements, too. We suggest that brand owners develop relationships and have conversations with these intermediaries to make sure they take both proactive and preventive measures on their platforms. The data collected from our software can provide brands with seller behaviours, insights, and trends that the intermediaries can then apply to their protection measures should the brand owners choose to share the findings. Altogether, effective brand protection takes teamwork and cooperation between multiple parties to ensure the best results.
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Foreman: Firstly, brand owners need to take advantage of the trade mark and design registration systems. Enforcement without registered rights is extremely difficult in most jurisdictions. Even in jurisdictions that do recognise ‘user’ rights, enforcement is likely to be more difficult and more expensive. Secondly, they need to allocate appropriate resources to this, which will often mean getting board buy in. Thirdly, they need to enforce and be seen to enforce. Work with the relevant authorities. Make their brands ones that others, especially counterfeiters do not want to copy. Galletti: Brands need to decide which is their strategy: if they want to show to the market that they are not willing to tolerate fakes then they need resources to act properly, in time and with the right external counsel. They also need a great collaboration with internal departments like PR and communications in order to promote such actions. In parallel, there can also be companies that, for several reasons, don’t want to react unless big issues come up. In this case, they will concentrate budget only on certain activities, making a balance between costs and risks.
For every step forward made by rights holders the counterfeiters seem to take two steps back Mark Foreman
What are the benefits of protection services? Wenban-Smith: Many of the protection services available to brands are digital tools, or employ the latest innovative technology to improve the speed and efficacy of the process. The companies running these often have the expert knowledge that many brands lack, so it can be wise to invest in external talent. The best protection services can also provide actionable intelligence and risk metrics to help brands understand criminal behaviour. Identifying criminal trends and methods across the internet—such as cybersquatting or counterfeit apps—can help a brand to create strategies to mitigate or block such activity. It is also useful to have a protection service to handle any incidences of litigation that may arise from IP infringement, clamping down on scammers and dissuading criminal behaviour by prosecuting those found to be flouting the law. www.ippromagazine.com
Brand Protection · Panel Stolk: Brand protection services are able to provide brands with top-of-the-line software that is built for the specific task of finding infringing products. On top of this, we combine our software with an international team of legal experts and certified investigators who are solely focused on protecting legitimate brands from online and offline infringers. These are necessary resources that any brand would find value in. We work to centralise and streamline all of the different strategies available to brand owners. This includes everything from identifying large infringers, cleaning up marketplaces, having in-depth discussions with platforms to make sure they take preventive and proactive measures against said infringers, establishing relationships with key authorities all over the world—we use every tool, technology, and resource we can on behalf of the brands who sign on with us. We are all fans of the brands we work for, and we take it personally when criminals try to take advantage of them. Foreman: In short, use them. Know what is out there. Not just from a legal perspective, but also technologically. Galletti: The importance of having a good (local) partner is the proximity between the episode, the counterpart involved and the authority. We strongly believe that dealing with a counsel, which is really connected within his region, is key for a successful brand protection strategy. Timing is vital. Not only for online issues but also for offline timing needs to be perfectly coordinated.
What is the future of brand protection? Wenban-Smith: It is an exciting time for brand protection opportunities. There is a new generation of protection companies appearing that are innovating their tools with all manner of digital advancements to refine the services they can offer a brand. One of the most up-and-coming approaches currently being explored is to use blockchain to create a chain of trust, allowing sellers to verify the authenticity of the goods digitally. Customers would need to be aware of this verification option and check for digital authenticity ‘stamps’ before spending their money. Another advancement in brand protection that will continue to make waves is machine learning. As the technology and capabilities around AI evolves, so too will brand protection capabilities, and tools such as image-recognition (to scan for misappropriation of a logo or branded image) are already vastly improving the accuracy and speed at which counterfeits can be identified and removed.
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Brand protection specialists will benefit from the new machine learning platform for online enforcement Elena Galletti Stolk: For Pointer, the future of brand protection means moving towards connecting and centralising all the gathered data. A large, easily-navigable database gives us a great upper-hand on the offenders. On top of which, it will become increasingly important not to only focus on counterfeits, but to also focus on protecting brand equity and, more importantly, protecting consumers.
Trust is the new currency. It’s our job to make sure that online shopping is not safe for the infringers. For this to happen, it’s imperative that authorities, trade bodies, and intermediaries work together to combat online criminals. It’s not just a brand problem, it’s a problem for everyone, and it’s our ultimate goal to solve it. Foreman: It is not all doom and gloom. As technology improves (blockchain solutions appear to be the flavour of the month), and authorities around the world continue to recognise counterfeiting as a serious issue as it often disguises slave labour, organised crime and money laundering, so the task will become ever more difficult for the counterfeiters. But is not just technology and international governments and authorities that need to do more. I believe there is still a significant education change needed. Whilst there will always be consumers that only intend to buy genuine products/ services and are deceived, there is also a sizeable group of consumers who are quite happy to buy non genuine products (I am not convinced that this group feel the same way towards non genuine services). So whilst there is demand, particularly in the developed world, there will always be supply. Attitudes need to change. Much easier said than done, especially when there are such discrepancies in wealth. Galletti: First of all, consumers need to be informed. The marketing department needs to allocate a proper budget for this communication programme. Secondly, brand protection specialists will benefit from the new machine learning platform for online enforcement, which means they will have much more time to focus on other activities (like normal proceedings). Finally, brands should really react as a group, not singularly. Could you imagine if the biggest companies in fashion industry decide all together to leave an online giant vendor in case they don’t perform a strong anti-counterfeiting program? Things can change. IPPro www.ippromagazine.com
Reinout van Malenstein ¡ Interview
Bad faith and saving face Reinout van Malenstein of HFG Law & IP Practice, discusses the latest around trademarks in China, where the concept of a bad faith filing continues to differ from the West Ben Wodecki reports What is the trademark landscape in China like at the moment? The trademark landscape at the moment is quite good. China is trying to be complaint with the Trade-Related Aspects of Intellectual Property Rights agreement. The laws are there, the regulations are there. Companies can successfully enforce their trademark rights at the moment. However, in order to do this, it is advisable to use certain tricks. Currently, China has IP rights Courts, where companies can get a good judgment. In order to get to the IP rights courts of Beijing or Shanghai, which are known for their expertise and good judgments, a notarised sample purchase of the infringing goods need to be made in these cities. With contracts, if arbitration is too expensive, it is important to choose Chinese law as the applicable law, and to name Shanghai as the competent court in case there is a problem in the future with the other party. In case you opt for foreign law and a foreign court, and there are no assets in that country of the Chinese company, you may win your case. However, enforcing the judgment will be very tough as a Chinese judge will most likely not enforce the judgment in China. One major problem in China that still needs attention from companies all over the world is the first-to-file rule in trademark registration: whoever registers a trademark in China first gets it. As opposed to the EU, China only has a few ways of getting back a trademark that is registered in bad faith. This is due to a different understanding of what a registration in bad faith is. For example, in China, if a Italian well-known (in Europe) Italian bag manufacturer has been successfully doing business around the world for decades, and has a history of more than one hundred years with using its trademark, a very long Italian
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name, a Chinese person or company can still successfully register that long Italian family name, and this would not be considered a registration in bad faith. Even though it is completely unthinkable that a person or company would make up that exact Italian long family name and register it for the exact same goods in China, the Italian company cannot easily get it back if there is no bad faith in the Chinese sense.
China has been at the forefront of trademark filing over the last few years, even beating the US at the top trademark filer in 2016. Is that a trend you see continuing? China will continue to file more and more trademarks both nationally and abroad. Many people claim that China only has interest in trademark filing and that prosecution in China is not big due to the Chinese principle of losing face, where they would rather mediate than litigate. As China and local companies are taking trademark law serious, the trend of filing trademarks will continue. As an effect, however, it will be harder for companies to register their desired trademark as there are more and more trademarks every day that may cause a registration to fail because of an older similar registration. Trademark blockage of the registration system is a new problem in China and companies are now advised to register their trademarks in China as soon as possible.
Will US investment restrictions and tariffs have any impact on Chinese IP investments in the US? Certain US investment restrictions and tariffs might lead Chinese companies to pursue IP investments in the EU rather than in the US. However, this does not mean that the EU does not share similar views on China as the US. As the EU Chamber of Commerce in China has noted many times, there currently is an unfair balance with regard to take-overs and IP investments. According to these sources, it is currently very easy for a Chinese company to invest in Europe and buy www.ippromagazine.com
Reinout van Malenstein ¡ Interview
up IP, whereas, it is quite complicated the other way around. There are a lot of restrictions that have been in place since the beginning of the 21st century. Since March of this year, these restrictions have become even stricter, as they now include a mandatory IP review by the Ministry of Commerce to defend against certain IP or technologies being taken over by a foreign company. The EU has started official World Trade Organization actions with China on this issue.
What does the future hold for trademarks in China and Asia? The government is getting better at taking care of trademarks that are registered in bad faith. Slowly, the definition of bad faith is getting broader. This is a good development as unfortunately it still is a very sustainable business model for a Chinese person or company to register already existing trademarks of foreign companies in China.
Unfortunately, as the registration of foreign trademarks in Chinese characters continues—and does not yet fall under bad faith—we will see many foreign companies in the upcoming years trying to buy back their already registered Chinese character trademark. New Balance and Pfizer have both had problems with Chinese companies that already had registered their Chinese language names. As a rule of thumb, as Chinese people speak Chinese, it is therefore important to also come up with a Chinese name for your brand. If not, then the market will create this name. Consequently, if any smart Chinese company or person then registers this name, the monopoly on that name has been awarded and the foreign company will need to buy back that name or invest in a new name for China. Companies are advised to always make sure that they have their English and their Chinese brand name registered as a trademark in China. IPPro
As a rule of thumb, as Chinese people speak Chinese, it is therefore important to also come up with a Chinese name for your brand. If not, then the market will create this name Reinout van Malenstein Senior counsel HFG Law & IP Practice
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China · Country Profile
China is overtaking the US as the world’s largest innovator Despite international attempts to reel China back, the country continues to dominate the rankings when it comes to innovation Ben Wodecki reports One of the world’s top patent and trademark filers is China. It dominates the planet economically, second only to the US. Despite a trade war with its biggest rival over tariffs and allegedly questionable practices by some of its companies with regards to trade secrets, this year China has yet again proved it is a powerhouse on the rise with little to no signs of slowing. China became the second biggest filer of international patent applications at the World Intellectual Property Organisation in 2017. The organisation remarked that China was “closing in on long-time leader the US”. US-based patent cooperation treaty applications hit 56,624 in 2017, closely followed by China, which had 48,882 applications. It was Chinese companies who were the top filers of international patent applications in 2017, with Huawei and ZTE dominating proceedings.
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Just a year before this, China was the top patent filer in the world, with the Chinese National Intellectual Property Administration (CNIPA) receiving 1.3 million patent applications in 2016, more than the combined total for the US Patent and Trademark Office, the Japan Patent Office, the Korean IP Office and the European Patent Office (EPO). China is dominating the patent scene so appreciably that two seperate pieces of research from the Center for Advancing Innovation and PatSnap highlighted that by 2029, western powers will have lost the innovation arms race. Both China and its equally innovative neighbour, South Korea, will overtake the US, EU, and the UK in all key innovation performance indicators. According to both the Center for Advancing Innovation and Patsnap, the US has lost its leadership position in global patenting metrics, and alongside its European and UK allies, has had negative or near zero growth in producing quality patents for the last 20 years. www.ippromagazine.com
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China · Country Profile Both have also said that China will surpass the US in terms of GDP by 2025, which is largely due to the nation’s increases in research and development spending. Currently, the Asian superpower is filing cybersecurity patents at an “unprecedented level”, according to research from both Minesoft and Patinformatics. Both found that China’s focus on cybersecurity innovation, with specific focuses on authentication, shows that the country has made this field a “national priority” and is patenting at “an accelerated rate compared to other jurisdictions”. Despite its dominance in filing across the globe, China is still making moves to strengthen its patent system. It has signed several bilateral cooperation agreements, including some with the EPO and the International Chamber of Commerce, with the former allowing data and search tools to be shared between the organisations, along with a joint study on computer-implemented inventions. Huawei was one of the top Chinese Innovators for 2018, according to Clarivate Analytics research, and the top applicant at the EPO for 2017, the first Chinese company to ever accomplish this. Nothing seems to be slowing Chinese patents, but despite its significant advances in innovation, China has faced criticism for a high quantity, low quality patent system. In recent years China has moved away from publishing statistics on the number of patent applications and moved to only publishing the ranking of patent grants. According to Tsai Lee & Chen Patent Attorneys partner, Crystal Chen, this is intended to further unlock the guiding function of statistical indicators of patents in development of innovation and further improve quality, avoiding quantity-oriented tendencies. She added: “The development of Chinese patents has already passed the quantity-oriented stage, and in the next step will turn to improvement of quality.” CNIPA has also put forward the notion of “win by quality, layout by quantity”. Parallel to patent criticism, the continuing burden of China’s counterfeit problems often dominate international opinion. Despite recent advancements in brand protection and defence mechanisms, sites like Alibaba are still known as havens for counterfeit sellers.
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Alongside efforts from Alibaba, such as it’s Operation Cloud Sword and Big Data Anti-Counterfeiting Alliance, the Chinese government has been working towards tackling the country’s counterfeit problems. In early September, China introduced new legislation to hold ecommerce platforms responsible for third parties selling goods on their websites. Both ecommerce platforms, such as Alibaba, and social media apps, including WeChat, are covered by the legislation. Currently, sellers are liable for the distribution of counterfeit products on Chinese ecommerce platforms, but the new legislation aims to shift this onto the platform. Any failure to comply with the new legislation may result in a fine of between RMB 50,000 to 500,000 (between approximately $7,300 and $73,000). Serious violations could result in fines up to RMB 2 million (approximately $292,500). The legislation will enter into force on 1 January 2019. China also suffers problems with copyright infringement, and CNIPA recently introduced a work plan to curb IP violations from counterfeiters and pirates alike. CNIPA’s initiative aimed to improve both IP rights information and infringement detection systems, giving rights holders and enforcement authorities the ability to access and share research on IP infringements. China’s National Copyright Administration (NCAC) also recently revealed that it is monitoring 58 platforms as part of its copyright protection efforts. The sites that it is monitoring include video and music streaming sites, along with cloud storage service providers. The rest of China’s copyright administration departments have a watch list of more than 3,000 sites. Yu Cike, director of copyright administration at NCAC said that the country’s copyright laws are now in line with international rules, and that despite its relative youth and some remaining weaknesses, China’s current copyright protection schemes are the result of the Chinese government’s efforts to increase copyright protection over the last 40 years. Cike remarked that its achievements embody the hard work and wisdom of the majority of copyright works in China, but also mentioned the support of the international community, especially WIPO. In the end, 2018 has seen the US distance itself from the international community, while China takes the lead in the global game of musical chairs. If it wants to keep its seat at the table, the US must enter 2019 avoiding a war of nationalist words and realise that actions almost always speak louder. IPPro www.ippromagazine.com
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New wave artificial intelligence: a study of the IP landscape Artificial intelligence (AI) is a machine mimicking the cognitive functions of a human, such as learning, understanding language, and problem solving. With these abilities, AI is dramatically accelerating the automation of factories and taking over routine tasks such as customer service. Due to the vast, growing market of AI in recent years, patent searching and analysis techniques are more important than ever. This article uses PatBase Analytics V2 to show how companies could stay on top of recent AI trends, gain competitive intelligence and avoid infringement.
We see examples of AI serving millions daily, for example, in the virtual personal assistants built into many phones.
These automated responses extract knowledge from within their system to answer and solve customer queries.
Since John McCarthy coined the term ‘artificial intelligence’ in 1956, AI has fostered its adaptation into many areas such as the banking, healthcare, and automotive industries, ranging from smart cars to household devices.
More and more AI innovations are coming out of the research labs and being integrated into everyday products and services, resulting in a large increase in the number of AI patent filings in the last few years.
Customer support helplines are another common use for AI. In many cases, whether by phone or online, the chats you are having are supported by AI.
Figure one: AI recent 10 years analysis by jurisdiction
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Figure two: AI China and US jurisdiction summary
China and the US leading the way in AI Patents AI is a rapidly growing market and great deal of time and money is invested every year to improve this technology. This area is particularly important to China and President Xi Jinping has set the goal of spending $150 billion to achieve global leadership in the high-tech area by 2030. Conducting a search on AI in PatBase, the global patent database, and observing the analysis report for the most recent 10 years for AI by jurisdiction, it is clear that China is well on its way to achieve this goal. In figure one, the blue line represents the total number of China’s AI patent families, which has been increasing exponentially since 2014. The black line, representing the previous leaders in the field— the US—is also showing a steady increase. The upward trend in Chinese and US AI patents is demonstrated in PwC’s global AI study. In this study, it is estimated that AI has the potential to contribute $15.7 trillion dollars to the global economy by 2030,
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with the greatest economic gains seen in China and America, making up almost 70 percent of the global economic impact. However, the power of AI technology, primarily owned by a few elite companies in China and America alone, has the potential to disrupt the global economy. This is in part due to many developing countries remaining heavily reliant on blue-collar jobs to promote their economy. As the increasing prevalence of AI threatens to displace jobs in this sector, the slower pace of technological advancement in these countries may further increase the GDP gap. On the other hand, some argue that AI is pushing man and machine closer together, and the transformation of business models is necessary to ensure this collaboration increases efficiency in today’s technology era. Therefore, the increasing popularity of AI as seen in figure 1 will encourage innovation, a continued rise in patent filings from most jurisdictions in the next decade can be expected, as countries compete to gain a share of the economic benefits. www.ippromagazine.com
Figure three: AI CPC analysis by assignee
Figure four: AI keyword landscape analysis
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Large and diverse AI market Studying an AI classification analysis in PatBase Analytics V2 shows a rise of AI patents in a variety of fields. In the last 10 years, the top Cooperative Patent Classification (CPC) fields by application fillings shows large increases in fields ranging from computer technology and management to furniture, games and transport. In figure three, the rapidly expanding range of patent filing fields confirms the large and diverse market potential for AI. The technology is still in its infant stages, meaning there is a lot of business opportunity for companies to discover and invest in. Looking into a certain classification could help companies narrow down and focus their research and development strategy. Drilling down further and looking at the landscape analysis (figure four), suggests a lot of potential white space in AI technology. For example, the concepts close to the most popular AI concept ‘training data’, (height of hill represents the total number of families for a concept), such as ‘healthcare provider’, may be a potential investment area. With some further analysis into these key concepts, companies can identify which areas to put their time and money into, expand their AI exposure and become a market leader, avoiding infringement risks and parallel development.
Staying ahead: competitors analysis Given the rapid pace of evolution within the AI market, obtaining early priority dates is important in view of the first-to-
file nature of the patent system, therefore it is essential to keep a close eye on competitors. Companies can use the comparison feature (figure five) in PatBase Analytics V2, where two patent assignees, for example Microsoft and Baidu, can be directly analysed and compared side-by-side. This comparison allows the user to easily monitor competitor movements and adjust their IP strategies accordingly. Having access to a powerful patent searching and analysis tool can aid companies in discovering new opportunities, protect their patent portfolio and monitor a technology area. This is especially important in AI technology given that machine learning systems are not always straightforward to patent due to the inherent complexity of patenting software. Nevertheless, as the AI market continues to grow, patents and intellectual property will grow with it, shaping the future of AI integration.
All charts and graphs featured in this article were created in PatBase Analytics V2, included in all PatBase subscriptions at no extra cost. Users can visualise a birds-eye view of market trends and key competitors, as well as identification of potential business partners and licensing partners. Visually appealing reports communicate the results of a patent analysis clearly to decision makers in a boardroom environment, even those without patent know-how! Sign up for a demonstration and free trial today. Contact Minesoft at info@minesoft.com or call us today on +44 (0)20 8404 0651
Figure five: AI patent assignee Microsoft and Baidu comparison analysis
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Registry Lock · Feature
A solution against domain name theft or hijacking Dreyfus partner Emmanuel Harrar talks about how Registry Lock can be an effective solution against domain name theft or hijacking Attacks on domain names vary and can encompass all actors in the domain name industry (registry, registrar, DNS host). The consequences can be critical, especially for companies: brand image degradation, loss of user trust, theft of confidential or strategic data.
As an example, here are two scenarios of attacks: 1. Changes to the DNS servers that enables the hijacking of a website or email services, the implementation of a fraudulent website or massive data theft. Thus, through this type of attack, the holder of the domain name loses the technical control over the domain name. 2. Modifications to the registration data of the domain name, through the technical settings, or the transfer of the domain name to another registrar, which leads to the loss of control over the domain name.
In view of these new threats, it is of paramount importance to strengthen the security of domain names and all of its actors (registry, registrars, domain name hosts), as provided by the EU’s General Data Protection Regulation (GDPR). It should be noted that the implementation of the GDPR also presents a risk in terms of the protection of domain names. Indeed, it is no longer easy to obtain the contact information of a domain name holder. This makes the fight against counterfeiting and domain name hijacking all the more difficult.
Solutions? For sensitive or strategic domain names (such as banking, government, critical infrastructures or domain names generating a significant turnover), which are a common target for hackers, the French State Cybersecurity Agency (ANSSI) recommends applying a dual locking system.
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The first lock, known as the Registrar Lock, is at the registrar level—that is, an intermediary between the domain name holder and the registry. It is placed by the registrar and helps to prevent fraudulent transfers of a domain name. This type of lock does not present any particular difficulties since it is both automatic and controlled by the holder of the domain name via his personal space, provided by the registrar. The second lock, the Registry Lock, is located at the registry level. This type of lock has probably already been proposed to you by a technical service provider but have you ever wondered about its effectiveness?
What is a Registry Lock and how does it work? A Registry Lock is the freezing of information concerning a domain name through a highly secured manual authentication process. The Registry Lock is carried out at several levels: �
Blocking changes to the DNS servers to prevent redirection of the website or email service.
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Blocking changes to the registration data in order to prevent the theft of the domain name.
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Blocking the transfer of the domain name to prevent the fraudulent migration of the website and email service and therefore the loss of control over the domain name.
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Locking the possibility of deleting the domain name to prevent losing control over the domain name.
The unlocking is done through an individual human security protocol between the registry and the registrar, after verifying the holder’s identity or any other authorised person having the quality of ‘authenticated contact’. Indeed, during an unlock request (temporary or permanent), the holder of the domain name will be contacted via another channel of communication (phone or email with code or verification link), to verify that it submitted the request. www.ippromagazine.com
Registry Lock · Feature
What are the advantages of a Registry Lock? In general, this lock at the registry level creates additional levels of authentication between the registry and the registrar, which requires the domain name holder to participate in the authentication process. This reduces the risk of losing control over the domain name.
How to activate it? To activate a Registry Lock the holder of the domain name must submit a request to the registry (directly or through his registrar).
What are the disadvantages? �
The lack of responsiveness when a modification of the DNS servers or the registration data is necessary. We can imagine the impact this may have on businesses.
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The need to identify and update the authorised contact person.
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The high cost associated with this solution presents another obstacle. It is indeed an additional service that costs a thousand times more than the cost of registering a domain name.
In August 2016, the French government, in collaboration with ANSSI, conducted an awareness campaign on this subject. However, while it is essential to effectively protect domain names against hijacking, placing a Registry Lock can be daunting. The cost of the service is particularly high and the time of the processing of the requests takes 24 hours more, around 48 hours on average, as it requires human intervention. Before adopting a Registry Lock, it is convenient to carefully consider on a case-by-case basis costs and the complexity of the implementation of this feature in relation to the level of sensitivity and risk of the domain name, in particular the probability and severity of this risk.It should be noted that the choice of registrar plays an important role in the protection of your domain name. We advise you, in accordance with the recommendations of the ANSSI, to choose a registrar offering a two-factor authentication mechanism and a filter to access the administration interface. IPPro
Dreyfus partner Emmanuel Harrar studied at one of the top engineering schools in France and is a graduate of the Centre for International Intellectual Property Studies. As former general manager of a company specialized in scientific software, he knows and understands the internet technology field in which he has been working since 1996. Fluent in English, Harrar advises and assists in the protection, enhancement and defense of your intellectual property rights on the internet. He assists in presence strategies on the internet, in particular optimising domain names portfolios on legal, marketing and technical grounds.
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Emmanuel Harrar Partner Dreyfus
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Biological Inventions ¡ Feature
The name of the game Anshul Sunil Saurastri and Parima Khabya of Krishna & Saurastri Associates run through patent specifications and requirements for inventions based on biological material Just like other jurisdictions, patent applications in India are scrutinised for meeting sufficiency of disclosure requirements. General disclosure requirements apply in the same manner to all patent applications. However, for applications for inventions related to biological material and/or use thereof, special requirements are enshrined in the Patents Act, 1970. This article describes those special requirements. India is a signatory to the Budapest Treaty. For readers who may be unaware, the Budapest Treaty requires contracting states to recognise deposition of biological material at international depositories for local disclosure requirements, where it is not possible to disclose in writing, the biological material or use thereof in the patent specification. In India, Section 10(4)(d)(ii) corresponds to these requirements, and more specifically sub sections A, B, C and D thereof.
Deposition of biological material As per sub-section A, where an invention is related to biological material, and such biological material or use thereof, cannot be fully and particularly disclosed in the specification to meet the sufficiency of disclosure requirement, the applicant is required to deposit such biological material in an international depository authority prior to the date of filing the patent
application in India, and to make a specific reference thereof in the specification. For domestic applicants, we recommend identifying an appropriate depository at the time of preparing the patent application and arranging to make the deposit. For foreign applicants domiciled in contracting states, we assume such a deposit would have happened much prior in time. For foreign applicants not domiciled in contracting states, we advise making such deposit prior to filing the priority application or patent cooperation treaty application. The consequence of not depositing the microorganism before the date of filing of the application would be the loss of priority.
Disclosure in the patent specification As per sub section B, all available characteristics of the biological material, required for it to be correctly identified or indicated, including, the name and address of the depository, date and accession number of the deposit, are to be included in the specification, so that any person wishing to receive access to such biological material may do so easily by contacting the concerned depository. Failure to include such details may result in an insufficient disclosure.
The consequence of not depositing the microorganism before the date of filing of the application would be the loss of priority Anshul Sunil Saurastri Associate Krishna & Saurastri Associates
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Biological Inventions ¡ Feature
As per sub-section C, access to the deposited material should be made available only after the date of priority and/or the date of filing the patent in India (for Indian priority applications), or else this could result in loss of priority. As per sub-section D, a sufficient disclosure should disclose in the patent specification the source and geographical origin of the biological material. Where such source and origin is known, it is advisable to include the same within the patent specification. However, this defect is curable by way of voluntary and/or involuntary amendment. Generally, we recommend amending the specification only pursuant to receipt of an objection in respect thereof in the first examination report.
Declarations In addition to the aforementioned, in the form one (patent application form), an applicant is required to declare, whether or not, the invention uses biological material from India, and if yes, that the necessary permission from the National Biodiversity Authority and will be submitted to the patent office before the grant of patent.
Our view For the purposes of compliance with the provisions under the Patents Act, it is therefore recommended to (i) assess, whether, or not the invention uses biological material, (ii) if yes, then from where, (iii) if from India, then to disclose the particulars in the specification, affirm the declaration in form one, and comply with requirements under the Biological Diversity Act (BDA) (iv) if not from India, then to simply disclose the geographical source and origin to comply with the disclosure requirement. This is important, since non-disclosure, or incorrect mentioning of the source and/ or geographical origin of the biological material used, can result in an insufficient disclosure and/or procedural defect and can be a reason for pre and post grant opposition and/or revocation of the patent. As such, it is important for applicants to develop a strategic approach to avoid unnecessary roadblocks. Moreover, since certain issues, such as what constitutes biological material, the linkage of the Patents Act to the BDA, and the provisions of the BDA, are still evolving concepts, it is important to consult experienced practitioners, prior to taking any unreasoned steps. Although it may be a clichĂŠ, early assessment and caution is the name of the game. IPPro
We recommend amending the specification only pursuant to receipt of an objection in respect thereof in the first examination report Parima Khabya Associate Krishna & Saurastri Associates
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Tamara Rabenold, president and CEO of international intellectual property investigations company Vaudra International, explains how she found her passion for IP investigations Ben Wodecki reports How did Vaudra International come about and how did you begin your career in IP investigations? My husband, Randy Rabenold, was in the US Secret Service for several years before leaving to pursue an opportunity in an unrelated field. In the early 1990s, he was ready to return to his investigation and security roots, landing a position at an intellectual property investigation firm in Charlotte, called Colt Investigations. At that time, Colt Investigations was one of the first to incorporate tactics commonly used by law enforcement agencies in undercover drug deals for counterfeit product investigations. He excelled as an investigator and client manager, working at a couple of intellectual property investigation firms, before starting his own, Vaudra International, with his business partner Howard Dozier in 2003. I learned about the IP industry and Vaudra International when Randy and Howard opened their office across the hall from the marketing agency where I worked. Over the following year, I helped them by developing their new logo and website. I was enthralled with their success stories and careers as IP investigators. Somewhere along that road, Howard asked if I’d be interested in interviewing for an investigator position and I jumped at the opportunity.
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Now, nearly 15 years later with my own investigative career, I look back and marvel at how lucky I was to be in the right place at the right time. In the process, I also managed to find love. There were times that clients thought we were an item long before it was a reality, as it tends to be rather common for husband and wife teams to operate investigation companies. Randy and I were married in late 2015. Through the years in expanding our network of investigative contacts, it is remarkable to see so many couples working alongside each other within the industry.
Tell us about some of the investigations you’ve undertaken, what are your best moments? The best moments are when you achieve that big win for a client. We recently added several case studies to our website, www.vaudra.com/case-studies, to illustrate a few examples. I’ll never forget my very first win back in mid-2004, which originated from an investigation into counterfeit goods being offered on eBay by a Chinese seller. Through undercover dialog with the seller, I purchased an evidential sample for the brand to verify authenticity and then persuaded the counterfeiter to allow for ‘my agent’ to meet at the factory. I coordinated with our local asset to meet with the subject and travel with him to the factory. As a result of that visit and what transpired, a complaint was filed against the factory www.ippromagazine.com
Tamara Rabenold · Interview the following day, and a raid was conducted with the local Chinese authorities, which saw the seizure of over 1,000 counterfeit finished garments, sewing machines, and more. From start to finish, this case was completed within a month’s time. There have been so many changes in the way of the world, investigation process and the mentality of counterfeiters since then. It is a constant evolution to develop new strategies and tactics to achieve these types of results.
What have been the most noticeable trends in the past few years? Domain names are a hot commodity. When was the last time a company said that they don’t have a website? We have completed more anonymous domain acquisitions in 2018 than in the past two years combined. Whether rebranding a company, preparing for a new product launch or expanding business to a new country, companies have recognised the increased need for the associated domain name and understand the benefit of hiring experts to facilitate the process. While a variety of factors play into any IP acquisition, we have a more than 75 percent success rate in obtaining a target domain. We have acquired domains across more than 25 gTLDs and ccTLDs. There was concern that the EU’s General Data Protection Regulation would restricting access to WHOIs information, but we have not found the implementation of these regulations to be a significant hindrance at this point. Another trend, while not new but continuing to increase, is the use of social media platforms to promote and sell counterfeit products. It seems that as many brand owners and ecommerce platforms become more vigilant in policing for fakes, counterfeit sellers are resorting to social media to sustain and grow their business. It’s a smart move for the counterfeiter when you consider the potential audience: Facebook hit 2.27 billion monthly active users as of Q3 2018, as compared to the much smaller buyer pool of eBay, which has 177 million users as of Q3 2018, and Amazon with 310 million users as of their last reported period. Add to that the fact that like-minded users congregate on social media sites like Facebook by creating groups, liking posts and just being ‘friends’. It is much easier to target the preferred audience too, even if there may be more content with which to compete.
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What is the impact of current legislation on your role? Is there anything that could be changed to make your role easier? Other than the possible exception of loitering, a private investigator licence does not give us any additional power or authority over a regular citizen. Privacy legislation at the state and federal level, in addition to Gramm-Leach-Bliley Act (GLBA) that protects financial information, and Driver’s Privacy Protection Act (DPPA), is at the heart of our industry. These regulations define and structure the legal confines of our profession, which we understand and respect. To this day, some of our clients are surprised when we state that we can’t obtain bank account numbers or account balances GLBA. When we consider jumping into a subject’s trash or subcontracting a resource out of state (or country) to do so, we must be aware of current related laws. I remember discussing this information gathering method with a California private investigator. Because of privacy laws, the investigator takes a photograph of the dumpster prior to recovering any refuse to refute a claim that they opened a locked dumpster. New Zealand law does not permit retrieval of someone else’s trash. A resourceful Kiwi investigator circumvented this law by photographing the documents while inside the garbage can! As for pinging someone’s cell phone, we won’t do it. If you have to debate whether a practice is legal and ethical, in most instances it is not. What would make our role easier? If you are granting wishes, give us subpoena power to obtain utility, telephone, financial and credit card records! That’s investigator gold at the end of a rainbow. Otherwise, create a magic pill that keeps private investigators updated on state and federal legislation impacting our job. We certainly aren’t the only profession that could use it. Until such wizardry is available, we rely on information obtained from state, federal, and industry-related associations. This year, I was honoured to serve as president of the North Carolina Association of Private Investigators. One aspect of serving our membership in this capacity is staying abreast of changes in our state’s legislature and raising questions when new regulations emerge, or existing ones need clarification as our profession continues to evolve. www.ippromagazine.com
Tamara Rabenold · Interview The IP world is constantly changing. What is the next big thing for IP investigations?
a critical area for increased scrutiny (whether the goods are actually real or fake).
Tough question. Since we are essentially guns for hire, the next big area for investigations will be largely sculpted by shifting priorities of IP owners, brands and their counsel as they work to protect the value of their IPR. What is important to them? What has the greatest impact on their bottom line? What are the loudest complaints from the shareholders and sales team?
Investigations will play a role, but as another component to address this, we expect that more brands will implement data centric authentication and tracking security features into their products and packaging. If brands wield this technology, every smartphone has the potential to become an authentication tool, giving the end user the ability to scan and verify the authenticity of the product. This is just the beginning. Imagine that the scanned mark has geolocation capabilities as well as the potential to open a two-way communication channel for consumer engagement.
With the surge of ecommerce and consumers buying more online, shipping/freight services and the related infrastructure will be critical. Just look at Amazon’s fleet of delivery drivers to satisfy the ‘Prime-al’ desire to have packages delivered on weekends (including Sunday). New distribution centers are popping up everywhere, along with countless Amazon tractor trailers on our highways. With increased shipping volume, we expect a rise in fraudulent returns and other logistics schemes. One common example is a consumer returning an item for a refund, but sends back a counterfeit version instead. Then, they re-sell their original purchase, the genuine item, for a profit. Where did the consumer get the counterfeit? Where in the return process will the fake be recognised and how does the brand (or third-party distributor) handle it? The solution to this problem may come out of anti-counterfeiting budgets for some companies. With mass worldwide access to manufacturers, distribution channels, buyers and sellers, we expect an increased emphasis on curtailing unauthorised sales and distribution of genuine goods. To protect profit margins in such a competitive marketplace, preserving the sanctity of the supply chain is
Tamara Rabenold President & CEO Vaudra International
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This technology is a reality and gives brands the unique opportunity to bridge gaps between security, authentication, marketing and consumer education. Cross-functional solutions and sharing data are imperative in a world that moves so rapidly. There’s an app for that! To this point, historically speaking, anti-counterfeiting departments that use private investigators have done so autonomously, without commingling agencies. One of our clients recently scheduled a conference call that included the primary investigation companies that they use in each region across the US. The client understands the interconnectedness of it all as investigations bleed into other regions of the country (and overseas), thanks largely to the power of the web and transshipments. With a team, management style, the client harnesses the value of collaboration to the benefit of the brand. IPPro
With mass worldwide access to manufacturers, distribution channels, buyers and sellers, we expect an increased emphasis on curtailing unauthorised sales and distribution of genuine goods
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Online brand protection with an impact. Listings per family
Listings per platform
Occurrences
Listing per price range
Total Occurrences
10.914 Products Total Products Online
322.591.288 0
500
1K
1,5K
2K
2,5K
3K Listings
New listing placement per day
Total Listings
6.342
1K 500
Sellers
15-07-18
16-07-18
17-07-18
18-07-18
19-07-18
20-07-18
21-07-18
Listings per region
22-07-18
23-07-18
# of unique Seller ID
Total Sellers
3.480 Pricing
Main indicators per seller
1K
24-07-18
Average Price in EUR
Average Asking Price
â‚Ź51,70
500
0
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