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“The IP world is shrinking at an alarming rate,” according to FICPI President Peter Huntsman, speaking this week at the organisation’s conference in Melbourne, Australia. Increased international cooperation between governments, the judiciary and practitioners means that the IP landscape today is very different to how it was even 10 years ago, and it remains in a state of flux. The challenges (and benefits) brought about by this increasing harmonisation of IP law and practice was one of the major themes running though the event.
That cooperation between government agencies is a good thing was largely taken for granted by speakers at the session ‘Offices working together and with users for a better IP world’. Jasemine Chambers from the USPTO described the‘IP5’ - a collaboration between the IP offices of the US, EU, Japan, China and South Korea - as “great examples of offices working together”. Meanwhile patent prosecution highway agreements are on the up, China is cooperating with developing countries on IP issues, and there are plans for further harmonisation of IP laws within the European Union. It seems probable, then, that this trend for increasingly centralised IP protection will continue.
The shrinking of the IP world was also under discussion in the session ‘Judges without borders – how judges use decisions from other countries’. With multiple litigations - particularly in the technology and pharmaceutical fields - raging across the globe, it seems likely that judges will refer to decisions in similar cases for guidance. However, in Australia at least, evidence that judges do in fact do this is limited. The Honourable Justice Christopher Jessup remarked that “judges sitting at first instance in the Federal Court will infrequently have the time or the inclination to research judgments from other jurisdictions” – adding that “there is no shortage of Australian authority through which a judge might find an answer”. However, with international IP conferences for judges taking place regularly, it seems probable that judges do speak to and learn from their peers in other countries.
On the issue of harmonisation of patent law, Andrew Christie from Melbourne University remarked that in Australia, IP issues are global almost by default, as the majority of IP owners are not domestic. “International users would prefer one common, certain law. From a practical point of view, harmonisation makes sense,” he said.
But while increasing harmonisation of IP laws may be inevitable, it creates a potentially alarming prospect for the patent attorney profession. This issue was up for discussion at the final session: ‘One day my child all this will be yours – centralised IP: where is the profession going?’ From one standpoint, it is under tremendous threat. As IP becomes more and more of an international business, attorneys can no longer rely on having the monopoly on patent work in their home jurisdiction. They are also facing competition from IP offices, which are increasingly offering their own services, while international online filing services are encroaching on space that traditionally they have covered (particularly successfully in the trademark field at present). Meanwhile, other dangers come from the digital revolution; fast improving online translations, for example, are at some stage likely to remove this area of service completely from the patent attorney’s offerings.
The picture does not have to be a gloomy one, though. Patent law is ever more complex, which means that suitably qualified and knowledgeable attorneys should become a valued resource. Greg Chambers from Phillips Ormonde Fitzpatrick predicted: “There will still be a need for highly-trained practitioners with knowledge of both the relevant scientific principals and the operation of the patent system.” Something that all speakers in this session were agreed upon was that offering a high level of service is the key to future survival and growth. Firms will need to explore new areas of practice, such as offering more consultation work and strategic planning services, in an increasingly complex and unpredictable patent landscape.