2009 07 27 Balanced IP
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2009 07 27 Balanced IP



Presentation made to eGoli Bio in Gauteng Province, South Africa on July 27, 2009.

Presentation made to eGoli Bio in Gauteng Province, South Africa on July 27, 2009.



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2009 07 27 Balanced IP Presentation Transcript

  • 1. Presentation to eGoli BioBalanced IP Rights
    Marcel D. Mongeon
    Intellectual Property Coach
  • 2. Outline
    The polarization of IPRs
    Biotech and IPRs
    The prevailing views
    What the IP rules are today
    Where are they headed? And why?
    How to encourage balance
  • 3. The Polarization of IPRs
    MP3 players
    File Sharing, Downloading
    Higher speed internet
    The death of copyright?
    Prevailing public sentiment is that some copying is OK
  • 4. The Pirate Party
    Current situation in Sweden
    The Pirate Bay
    BitTorrent tracker
    i.e. no hosted content
    BUT facilitates copyright infringement
    Court decision sending operators to jail
    Political force  Seat in European Parliament
  • 5. Other Politicization
  • 6. And Yet More
  • 7. Biotech engenders Polarization
    Gene patents
    Drug patents
    Brand-name vs. Generics
    Current US Moves
    Reach-through Claims
  • 8. A Problem
    All IPRs are lumped together:
    Patents, Copyrights, Trade-marks
    In some sectors some aggressive tactics
    Music, Film and the DMCA
    Geographic Indications and Food
    Olympics and World Cup and Trademarks
  • 9. The Public Reaction
    Aggressive IP Tactics lead to public problems
    Public doesn’t understand issues but does react to perceived injustices
    People going to jail for downloading
    Scare tactics on GMOs
    “Patents Kill Babies”
  • 10. Government’s Reaction
    When Public is concerned so are they
    The “Precautionary Principle”
    How statistically can you “Prove a Negative”?
    Needed legislative changes in IPRs are held up to clear the way for other related problems
  • 11. The Real Problem
    Public doesn’t understand Intellectual Property!
    Most people can’t distinguish trademarks, copyrights, patents and trade secrets
    Little understanding in public of how IP can create value
  • 12. Example of Geographic Indications
    Protection for names associated with items originating from known areas
    The Canadian ‘Champagne’ Story
    Creation of value for RSA through GIs?
    Wine Industry
  • 13. IPRs – Do WeHave Enough Rules?
    Non-obviousness or Inventive Step
    In addition
    Doha Declaration with respect to emergency health use
    Convention on Biological Diversity
    Origin and Benefits Sharing
  • 14. Copyright Area
    What should be covered?
    Traditionally has covered work of original expression
    Period of time was around 50 years
  • 15. Trademarks
    Traditional rule:
    Protects goods (services?) for defined classes
    Expansion has been occurring for “well known” marks
    International sports protection
  • 16. Let’s Look at Expansions
    In Patents:
    Some inventions no longer protectable
    Best example Biologicals
    Patent term extensions
    Is it 20 or 21 years?
    What should be covered?
    E.g. of interfaces
    Reach throughs
  • 17. Copyright Expansion
    “Self help” remedies
    Digital Millennium Copyright Act
    Copyright term extension
    The Sonny Bono Copyright Term Extension Act
    Making certain information illegal
    Creation of Grey markets
  • 18. Do We Need More Rules?
    Indigenous and Traditional Knowledge
    Two issues:
    Patents  Prior Art and Benefit Sharing
    Copyright/Trademark  Copying
    Can this be covered by existing mechanisms?
  • 19. So, What Does Balance in IP Mean?
    Go back to original deal:
    Why do we grant patents, copyrights etc?
    Deal between society and individuals
    In return for contributing to society (i.e. knowledge, artistry etc) society rewards original creator with a period of exclusivity
    So, is society still benefiting from this deal?
  • 20. My response
    Of course, IP Rights (in moderation) are needed
    All of patent, copyright and trademark serve a purpose as originally envisaged
    What we need to protect against is letting IPRs go beyond what the deal was
  • 21. A Classic Over-Reaching
    Use of IP to segment markets
    Coke licences to bottler in SA and Canada separately
    If Canadian producer is charging too much, why can’t I buy in SA and import into Canada?
    Isn’t idea of WTO to withdraw trade barriers?
    Example of European Community
  • 22. Other Differentiations
    TV Shows
  • 23. National Rights
    Sometimes useful to explore history of IPRs
    In 1850s who was largest infringer of IPRs?
    In 1950s? In 1990s?
    Is it reasonable national policy to be an IP Infringer?
    Real issue is need to protect own IPRs
    As countries generate IP, they will protect
  • 24. Other IP Challenges
    Patent Thickets
    Everyone patenting everything in sight
    Particularly acute in biotech
    Patent Trolls
    The RIM situation
    Possible solutions emerging
  • 25. Markets for IP
    Ultimately we need to develop national and international IP markets
    Can be a source of national competitive advantage
    Concentrate in areas of expertise
  • 26. Ultimately What is Important?
    Finding, attracting and retaining good people
    Biotech is clearly an international market
    Canadian experience:
    With US less than 150 km away for most
    Conditions have to favour clusters
    People want to work where there are lots of jobs
  • 27. A Few Words on IPR Bill
    Should now be clear path to who owns
    Although some bureaucracy, should not be difficult to manage
    Two most important aspects about the US system:
    Clear ownership
    Properly funded
  • 28. Questions?
    Marcel D. Mongeon
    +1 (905) 390 1818
    +44 (0) 1905 70 1818