Year End’s Wishes for 2010

2010 fast approaching it’s a good time to reflect on the past year and come with some good intentions for the New Year. Almost a decade ago we were hyped by fear of a Millennium Bug as a potential apocalypse of the Internet and IT systems. Google was still in its infancy and the social media technologies were in an embryonic state compared to today’s ubiquitous facebooking, twittering and blogging. In the ten years that have passed the technological and communications landscape have changed with 350 million users[1] worldwide on Facebook and Qzone (Facebook’s equivalent in Asia) with 200 million users[2] in China alone.

Conclusion no 1: Change in technological landscape: the era of social media has entered the scene

The relevance for IP is clear: the way information (everything from the written word to music and computer algorithms) is distributed, the pace at which information is spread and shared. Clearly, the laws of IP are being challenged as the technologies and new developments they are supposed to protect and regulate are moving at a faster pace than the legislator could have predicted. This year’s case of the Swedish Piracy Bureau and their website Pirate Bay is one example of how policy and legislation to a certain extent is at odds with the pace of innovation and vice versa.

Conclusion no 2: Clash between innovation policy and technological development

This decade has also seen quite substantial changes in particularly patent law and administration. Both the U.S. Supreme Court and the Court of Appeals for the Federal Circuit (CAFC) have issued decisions that have affected the basic on how invention criteria are applied. Also, attempts to reform patent law in the US[3] and push for a harmonized EU patent regime[4] have been on the political agenda throughout the first decade of the 2000s.

Conclusion no 3: Stricter invention criteria in the US makes patent prosecution more difficult

It is not only the innovation landscape and the laws of intellectual property that have gone through change and been tested by society, but also the authorities in charge of registering and maintaining inventions. With the increased backlogs at the EPO and the USPTO, the managements of the patent offices are looking at possible solutions to make their organizations more efficient. One such initiative is the patent prosecution highway project[5] – a fast-track patent examination procedure through collaboration between the major patent offices in the world (e.g. EPO, USPTO, JPO).

Conclusion no 4: Increased collaboration towards expedited patent office services

Considering the ten years that have passed since the last decade, an interesting phenomenon that has emerged in the IP business sphere is the market for selling and buying intellectual property rights. Although the notion of secondary markets is strongly associated with financial instruments such as stocks and bonds, the activity and establishment of IP intermediaries such as IP brokers and IP auction houses are clear signs of an emerging secondary market for intellectual property. Intellectual Ventures, Acorn Technologies, and Ocean Tomo are examples of attempts to generate liquidity out of previously illiquid assets. The recent acquisition of Ocean Tomo’s transactions division by ICAP is a sign of interest from the investment community and the financial markets to build business based on intellectual property as a new and exciting asset class.

Conclusion no 5: New markets for intellectual property based transactions

There are many more conclusions to draw from the very first decade of the new millennium. Whether it is case law being scrutinized from scratch, new policies for fostering of innovation being implemented or new markets emerging for doing deals based on IP, intellectual property will most certainly play a role in the next decade to come. What is clear is that the “right piece of IP” may have a tremendous impact on any business landscape, as long as it is handled by the right minds.

Danielle Lewensohn