INNOVATE! HAMILTON

High Cost of IP Litigation

WIPO recently reported on discussion from a November 2009 session of the WIPO Advisory Committee on Enforcement (ACE) relating to concerns about the high cost of IP litigation.

The concern is not surprising. However, it is also not new. Concerns about the costs of litigation are perennial. Of course, IP litigation is especially expensive. However, as noted in the article, it really does (in all modesty) require specialized legal expertise.

In my humble opinion, another factor that often drives costs up in IP litigation is that the parties themselves are often business competitors and the substance of the dispute is a monopoly that one claims in the marketplace. Unlike other litigants, the parties therefore may not be highly motivated to settle.

Australia: Academics not Universities own Intellectual Property

In a landmark decision that may have broad implications for educational institutions all over the world, an appeal court is Australia has upheld a trial decision which found that individual academics, and not their universities, own intellectual property over their inventions.

In the trial decision, the court found that although academics may have a duty to conduct research under the terms of their employment, this duty does not involve a "duty to invent". Consequently, it found that individual academics, not universities, would usually own intellectual property in their inventions.

Drawing a distinction between "pure research" and the "commercial development of inventions" can be an exceedingly "fine line" as many commercially valuable inventions are derived from so-called pure research. For this reason, some would argue that it's a nonsensical distinction.

One on side, there is the costly equipment made available by universities for the conduct of pure research – most of which is likely paid for by tax dollars – which suggests that universities should have some financial interest in any commercial applications developed. On the other side, there are arguments about academic freedom and the long-standing traditions of universities with respect to intellectual property that are not always in accord with the modern expectations of an employment relationship.

Often Canadian universities have intellectual property policies under which they share the profits with their academics for any commercially valuable inventions developed during their employment. However, the key to the validity of these policies may be whether or not they are incorporated into the employment agreements – most often these are now union negotiated labour agreements in Canada.

BRATZ on shelves at least until end of 2009

Following up on a previous post, the BBC reports that the makers of the BRATZ dolls, MGA, were granted a bit of a reprieve from the earlier court ruling that ordered them to remove their dolls from store shelves after X-mas on the grounds that the design is actually owned by Mattel, makers of the BARBIE dolls.

Report Encourages Development of NEW IP Rights System

The McGill Centre for Intellectual Property Policy recently published a report that was apparently 7 years in the making by its International Expert Group on Biotechnology, Innovation and Intellectual Property.

Although the report focuses on the impact of traditional IP rights in the field of biotechnology, it encourages readers to consider its findings and recommendations more broadly with respect to all industries. The report labels the current IP rights system "OLD IP" and concludes that it has proven to be counterproductive to innovation, at least in the field of biotechnology, by discouraging cooperation and collaboration. Essentially, it aims to knock down the belief that "if some intellectual property is good, more must be better". Instead, the report encourages the development of a "NEW IP" system that considers IP rights in the context of other elements in the innovation system so that IP rights actually encourage innovation rather than stifling it.

At first blush, I would agree that more IP is not necessarily better. In my experience, most corporations – large and small – simply don't understand their IP rights and accordingly don't exploit their IP in an efficient manner. IP rights should be considered in the context of the entire business strategy and not viewed in isolation.

BIG business vs. small business in the US War on Patent Trolls

Another good article from the Wall Street Journal explaining some of the dangers of favouring BIG business over SMALL business in the area of patent reform.