|The "25 Years" panel|
Sir Robin Jacob says that IP is generally going in the right direction save for some exceptions, in particular patent law which is coming under populist pressure. Copyright law has tried to adjust itself and has become overprotective (as often IP laws can do). There will need to be sensible policy making in the field of IP. In relation to making new law, Robin thinks that IP legislation is done on the hoof without serious discussion. The biggest change Robin identified in the past 25 years is China and their force in the rest of the world.
Jane Ginsburg (Columbia Law School) commented that there has been increasing attention on choice of law and choice of forum. There has also been a supranational phenomena - IP being normally territory (giving rise to treaties and choice of law) - but domain names are not and so mapping those onto national trade mark rules is challenging. Jane considers that the notion that "we are alone in the world" is a very US centric, but other countries discuss and cite each other's decisions. If anything is clear with the present administration is that Trump likes trade marks.
David Kappos (Cravath) agrees that IP is generally going in the right direction. What worries him the most is interference on the part of antitrust regulators on a global basis but also in the US. It is a bad trend that needs to be stopped. In the US, we have had many hearings in the House Judiciary in the past 5-6 years looking at the copyright system. This can result in analysis paralysis. Congress has in its power the ability to get copyright legislation to catch up to the new technological era, but they can suffer from this paralysis. Hugh said that there is so much uncertainty in patents so people will not invest in them. David says there is truth in that. There has been a significant weakening in the US patent system to the extent that if you want an injunction you go to Germany. If you want the best hearing for a pharma patent? You will end up in the PTAB in conflict of the Hatch-Waxman Act. This is all not counting the shame of the 101. The US has shot itself in the foot. A lot of it has come from the Supreme Court, but also the work that we did in the AIA needs to be updated and refined. The PTAB needs to be adjusted and re-calibrated. With section 101, the Supreme Court's decisions have been a challenge and lower courts have also struggled with their interpretation. David is hopeful that the Trump administration will shift back towards pro-IP. The nominations that have so far come out, relative to the antitrust sector, is a much different tone from the very overt anti-IP approach the antitrust sector has been.
|Sir Robin Jacob|
Etienne Sanz de Acedo (CEO, INTA) mentioned there seems to be a general anti-IP sentiment which should concern everyone. It originates from a combination of issues. In politics, we are going to extremes and with politicians needing re-election, they can sometimes adopt those extremes without understanding the value and importance of IP. An example of this is plain packaging. Etienne considers that IP professional organizations need to be better at organization in lobbying, namely in agreeing the terms together so that European law makers are not faced with 25 organizations saying they agree in principle on an IP issues, but not on the terms. They need to be better.
Jay Thomas (Georgetown University) says IP moves in a lot of different directions. 25 years ago US was not part of Berne, there was no database directive, IP was on the outside of the legal academy and the IP firms then no longer exist. It is a different world. There are a lot more voices and much more dialogue. Jay is really impressed about the rise of IP expertise in D.C. - politicians are familiar with IP concepts including exhaustion. That has been a positive trend. IP law making is no more off the hoof than any other area of law.