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Presentation to eGoli BioBalanced IP Rights Marcel D. Mongeon Intellectual Property Coach
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
The Polarization of IPRs MP3 players File Sharing, Downloading Higher speed internet The death of copyright? But: Prevailing public sentiment is that some copying is OK
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
Other Politicization
And Yet More
Biotech engenders Polarization  Gene patents Drug patents Brand-name vs. Generics Biologics Current US Moves Reach-through Claims GMOs
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
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 Frankenfoods “Patents Kill Babies”
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
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
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 Rooibos? Biltong?
IPRs – Do WeHave Enough Rules? Patents Novelty Non-obviousness or Inventive Step Utility In addition Doha Declaration with respect to emergency health use Convention on Biological Diversity Origin and Benefits Sharing
Copyright Area What should be covered? Traditionally has covered work of original expression Period of time was around 50 years
Trademarks Traditional rule: Protects goods (services?) for defined classes Expansion has been occurring for “well known” marks International sports protection
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 Obviousness Reach throughs
Copyright Expansion “Self help” remedies Digital Millennium Copyright Act Copyright term extension The Sonny Bono Copyright Term Extension Act Making certain information illegal Decrypting Creation of Grey markets
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?
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?
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
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
Other Differentiations Kindle Movies TV Shows
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
Other IP Challenges Patent Thickets Everyone patenting everything in sight Particularly acute in biotech Solutions? Patent Trolls The RIM situation Possible solutions emerging
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
Ultimately What is Important? People! 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
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
Questions? Marcel D. Mongeon +1 (905) 390 1818 +44 (0) 1905 70 1818 marcel@mongeonconsulting.com

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2009 07 27 Balanced IP

  • 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? But: 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
  • 7. Biotech engenders Polarization Gene patents Drug patents Brand-name vs. Generics Biologics Current US Moves Reach-through Claims GMOs
  • 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 Frankenfoods “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 Rooibos? Biltong?
  • 13. IPRs – Do WeHave Enough Rules? Patents Novelty Non-obviousness or Inventive Step Utility 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 Obviousness 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 Decrypting 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 Kindle Movies 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 Solutions? 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? People! 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 marcel@mongeonconsulting.com