The smart set
The IP Hall of Fame is a select group of individuals who have made an indelible mark on IP law and practice. Here we introduce the five people inducted to this elite club in 2015
The IP Hall of Fame Gala Dinner gets underway at the Four Seasons Hotel in San Francisco
The IP Hall of Fame was established in 2006 to identify individuals who have helped to establish intellectual property as one of the key business assets of the 21st century. The aim is not only to acknowledge the vital role played by these innovators in fostering today’s vibrant IP environment and ensuring its continued health, but also to show how central intellectual property is to the global economy and to the wellbeing of people around the world.
To identify the inductees each year, IAM reaches out to the IP community to request nominations. Each year we are overwhelmed by the response and the enthusiasm with which both contemporary and historical figures are put forward for consideration by the IP Hall of Fame Academy – a group comprising past inductees and IP thought leaders who, between them, make the final decision.
To make it into the IP Hall of Fame, it is not enough to be talented, enthusiastic or influential: you must be all three, and so much more. That certainly applies to the inductees for 2015: Paul Goldstein, Frederick Mostert, Jeremy Phillips, Des Ryan and Nikola Tesla.
On June 15 more than 400 people gathered to honour these individuals at the IP Hall of Fame gala dinner, held at the Four Seasons Hotel in San Francisco during IPBC Global. In attendance were Paul Goldstein, Frederick Mostert and Jeremy Phillips, who took to the stage in turn to make rousing, touching and inspiring speeches about their fascinating careers and experiences. Des Ryan, who was disappointed to miss the event, regaled diners with a humorous and engaging pre-recorded message. Nikola Tesla’s contribution was recognised by IP Hall of Fame Academy member and deputy director of the Centre for Intellectual Property Studies, Bowman Heiden.
This year’s inductees are profiled on the following pages.
Paul Goldstein accepts his certificate of induction into the IP Hall of Fame
Paul Goldstein – the man of many hats
Paul Goldstein describes himself as “writer, lawyer and teacher”, having carved out three distinct careers which all share a common theme: copyright. Goldstein has immersed himself in this area ever since a seminar on the topic caught his eye at Columbia Law School, thanks to his keen interest in literature and film. “So much of what I had been exposed to up to that point had held no innate interest for me. But copyright did,” he recalls. “Within weeks, I fell in love with the field and I’ve not fallen out of love yet.”
Goldstein’s first passion was for literature and was evident from a tender age: “I started writing my first novel at 13. It was set in 17th century Holland; what did I – a teenager from New York – know about that! I eventually dropped that novel, but I continued writing stories until I started law school, when I turned to academic writing. But the bug was always there.” It was this love of the written word that drew the young student to the body of law that dovetails most closely with artistic creativity.
The course that Goldstein signed up for at Columbia was delivered almost exclusively by visiting speakers from the New York copyright bar. “In the mid-1960s this was a collection of some of the most fascinating personalities around,” he says. “They were delightful people with interesting stories to tell about copyright law in action. The combination of people and doctrine was intoxicating.”
After graduating in 1967, Goldstein went straight into teaching – initially at the State University of New York at Buffalo Law School, where he honed his craft until 1975, when he joined the Stanford Law School faculty. After a decade as professor, he earned the prestigious appointment of Stanford’s Lillick professor of law – a position he holds to this day.
During his career at Stanford, Goldstein has twice received the John Bingham Hurlbut Award for excellence in teaching. The secret of his success, he suggests, lies in closing the gap between the theoretical and the factual. “I will go into the classroom with two or three practical, policy-laden scenarios in mind that I think will engage the students and get them to think about copyright in its business and political context,” he explains. This not only tests students’ capacity to apply what they are learning to real-world issues, but also makes for a lively debate.
Copyright in action
His approach to teaching reflects Goldstein’s commercial sensibilities and acute awareness of the context in which intellectual property operates. These he attributes in large part to the lawyers with whom he had the pleasure of working early on in his career: “Although I went directly into teaching after law school, after four years I took off a semester to practise full time because I felt it was important to have a firmer grasp of the law’s practical realities.”
At the time, Goldstein asked one of the partners with whom he was working what treatises he should be reading to help him best assist his clients: “This partner worked primarily in the music industry and he told me: ‘You don’t need to worry about legal texts; what you should be reading is Billboard magazine.’ He explained that I needed to know my clients’ business as well as they did. The wisdom of that advice has stuck with me.” Today of counsel to Morrison & Foerster, Goldstein recognises that his value to clients comes not only from his extensive legal knowledge, but also from his deep insight into their industry and the challenges they face.
Problems and solutions
One of the biggest such challenges, suggests Goldstein, is the failure of government to fully recognise the rights of the author: “At the most basic level, it would be ideal if the US incorporated into its copyright act the two minimum moral rights norms that the Berne Convention, which we joined in 1989, requires of all members: that is, legislation requiring respect of the integrity and paternity of a work.”
However, while Goldstein may be a vocal advocate of copyright reform, some large industry players have remained conspicuously silent on the issue. “Certain large copyright owners, mainly film studios, oppose moral right out of fear that it will make it too difficult to produce films,” he explains. “But this can’t be the case, for the film industry in Germany, France, Spain, Canada and the UK has managed to thrive under moral right.”
Perhaps a greater threat to their interests is the swinging pendulum of public opinion in the digital era: “I think the danger to copyright in the internet environment is that policy makers – legislators and courts – will carve out exceptions from copyright because of a misconception that rights are too extensive. The challenge for copyright owners is thus to make themselves receptive to new licensing technologies. If they don’t, they’ll find that policy makers are carving out exceptions to their rights, and that’s going to happen sooner rather than later.”
Pick of the bunch
The future of the copyright system is not just of academic interest to Goldstein: as a prolific writer, he is of course a copyright owner himself. The author of a number of casebooks, general interest works and treatises, he is also a prize-winning fiction writer, having won the Harper Lee Prize for Legal Fiction in 2013 for his third novel, Havana Requiem. A fourth novel is scheduled for release early in 2016. His return to the fiction writing he enjoyed so much as a teenager came relatively recently, inspired in part by a review of his non-fiction work, Copyright’s Highway: From Gutenberg to the Celestial Jukebox. “The chapter of the book that I most enjoyed writing was essentially a piece of journalism about an important Supreme Court appeal,” recalls Goldstein. “The review in Publisher’s Weekly said: ‘Improbably, this chapter reads like a legal thriller.’ That really spurred me on.”
So as a man of many hats, which does Goldstein enjoy wearing most? “I find each aspect of my work highly rewarding, in large part because the other two are always there,” he muses. “I believe that I am a better teacher for the practical experience that I can bring to the classroom – an understanding of what copyright looks like on the ground, in transactions. But the teaching and scholarship are also improved by my perspective as a writer and rights owner who has an understanding of the challenges that writers face.”
Frederick Mostert makes his acceptance speech during the IP Hall of Fame gala dinner
Frederick Mostert – the IP educator
A past president of the International Trademark Association and former chief IP counsel of luxury group Richemont, Frederick Mostert is an internationally recognised authority on trademark law. Also a research fellow at St Peter’s College, University of Oxford and guest professor at Peking University, he continues to serve Richemont in an advisory capacity.
You are one of five inductees into the IP Hall of Fame this year. How does it feel to be recognised by your peers this way?
To be honest, it feels very good. It is an honour to be recognised by your contemporaries in the IP world.
Who are your own IP heroes and why?
Many people have inspired me throughout my career, but the first person to come to mind is Ron Lehrman. When I was a first-year associate, Ron took me under his wing. Pretty much everything I know about trademark law he taught me, and in such a wonderful way. But more than that, Ron taught me how to deal with clients – something you do not learn at law school – and as a great foodie, he introduced me to some special things in life. It was an enormous privilege and a joy working with him.
Another great influence on me has been Professor Tom McCarthy, whom I met in San Francisco when I was a student. I will never forget the first time I met him. I had written him a letter out of the blue asking if we could meet and he graciously invited this young student for a half-hour appointment at his office. I ended up staying for two and a half hours – we simply could not stop talking! Since then we have become great friends; over the years he has given me invaluable guidance and has been tremendously supportive.
What inspired you to embark on a career in IP?
Like most people, I came to this area of law by sheer accident. I was writing a dissertation in law school and was studying the Kodak bicycle case in the UK, which dealt with the protection of a trademark on non-competing goods. This was really intriguing to me, so I started reading more on this subject and became totally hooked. When I finished law school, I was offered a job in private practice with Weiss Dawid in New York and I never looked back.
You are perhaps best known for your work as chief IP counsel of luxury group Richemont. Having worked both in-house and in private practice, how do you think the two compare and which do you prefer?
Interestingly enough, working in-house and in private practice is more similar than most people think. The differences are very much administrative in nature. For example, there are no timesheets in-house. The biggest difference is that in private practice you are so often asked to look at issues historically: your client will come to you with a problem that has already happened and you have to try to fix it. In-house, what I enjoy so much is that you get to sit down with creators and pre-empt these problems before they arise. You can be proactive rather than reactive. You are closer to the coalface and can suggest to designers and inventors what small tweaks to make at the creative stage of the process so that, down the road, they might be able to avoid a larger problem. And of course, you are closer to the business as a whole, which is good fun too.
What would you say has been your career highlight to date?
One of the highlights was most definitely working with Stella McCartney. She is very straight down the centre, very clear in what she wants and her designs are totally distinctive and innovative. On the pro bono side, I had the great privilege to assist President Mandela. The work I do for the Shaolin Monks in China is also good, challenging fun.
You are president and a founding member of the Confucius Foundation. What is it that you hope to achieve through the charity and why do you feel that it is such a valuable cause?
The Confucius Foundation, like my career in intellectual property, came about by sheer accident. I was doing a raid with the police in Asia and was totally unprepared for what we would find. Children were working in this factory making counterfeit goods and their living quarters were horrendous. Usually during a raid, we rush in with the police and seize all the goods and smash all the equipment which the factory owners are using to produce counterfeit goods, meaning instant bankruptcy for the factory. It was, of course, no different for this factory on this day. But on the train home that evening, I realised we had made the children living and working in that factory homeless. The realisation horrified me and I decided, along with several other people who recognised the need, to help these children.
Now, when we find children working in counterfeit factories, we speak to them to establish whether they want to go back to school. If so, we then talk the parents into allowing the child to return to education. But on the plus side, there is such veneration of scholarship and Confucian principles that most children do want to go back to school; and because we offer to foot the tuition and boarding bills, the parents can sometimes be persuaded. What I find most rewarding is that many of the children who graduate from our charity want to become teachers themselves and go on to teaching colleges. This is very touching.
Do you believe that the bigger, human issues at stake are too often overlooked when trying to crack down on counterfeiting?
Indeed. I have discovered in so many areas of counterfeit work that we can be myopic in our unrelenting quest to stop fakes and fail to consider the larger impact on society. Counterfeiters are not nice people. They are more often than not involved in drug smuggling, tax evasion and so many other aspects of illegal conduct. Child labour is rife, and the awful working and living conditions of these children are heart-breaking. Once you have seen this with your own eyes, you cannot simply focus only on stamping out fakes, but have to try to tackle the bigger societal issues as well.
What more do you think that the brand-owning community could or should be doing to address these issues?
Counterfeiting is often seen by the public as a victimless crime – it is up to brand owners not only to prosecute counterfeiters, but also to open the eyes of the public to the hidden horrors of counterfeiting. I think that industry and government are becoming more aware of this duty. A good example is the positive work that the Office for Harmonisation in the Internal Market has done on this front. Also, a number of public awareness campaigns involving former EU President Barroso, former New York Police Commissioner Kelly and celebrities have been undertaken around the world. But of course, more should be done. I am happy to say that the Confucius Foundation has had donations from international brand owners, as well as the UK government and companies in Silicon Valley. So people are beginning to recognise the larger impact of fakes on society and the need to step in and help.
What would you say has been the most significant development in trademark law and/or practice during your career to date?
The sea change is the Internet. I am a great believer in the Internet: along with speech and the printing press, it is one of the biggest inventions of mankind. However, as anyone who deals with intellectual property on the Internet knows, it is cause for great concern, even as it provides wonderful challenges. You have to think strategically when protecting your brand or artwork online and fight fire with fire. Right now, the bad guys are using technology in a really smart way to deceive. I believe that rights holders need to countermand this strategy by using technology better to protect themselves. For example, it would be beneficial for the entire industry if a standard were set for authentication technology.
Another development of concern is that we in the IP world have started to veer away from a balanced approach by overreaching, over-lawyering and pushing IP rights too far. The answer to restoring this balance lies, I believe, with the rights holders themselves. Confucius – whom I greatly admire – was the originator of the doctrine of the golden mean, which essentially means taking two extremes and trying to find the golden middle way. This is often, to my mind, how the best answer is found in the law.
While brand owners must do their best to identify and prevent those infringing their rights from doing so, surely the only way that counterfeiting will stop being such big business is if demand for it reduces?
Absolutely. If you look at counterfeiting through the lens of supply and demand, you will see that on the supply side, we keep doing raids; we keep on top of infringers on the Internet; but essentially it is like playing whack-a-mole: you hit it down here and it pops up again over there. Unfortunately, you have to play that game; but it is the demand side where brand owners and governments should really be focusing their efforts and attention. The general public needs to be made aware of the negative societal impact of counterfeits. Ten years ago, I was part of a team that made a series of short films with Jackie Chan, targeted at China and the rest of Asia. We wanted to make the message accessible and therefore we incorporated kung fu into the narrative, which is very much based on the premise of good versus evil. The films highlighted the dangers and the effect that fakes have on society. We need to continue awareness campaigns such as this, as we have discovered that most people, when presented with the facts about the hidden underbelly of counterfeiting and its disastrous consequences, will stop buying them. Like all awareness campaigns, you have to do them consistently and continuously.
Jeremy Phillips receives his certificate of induction into the IP Hall of Fame
Jeremy Phillips – a passionate Kat
Influential blogger and academic Jeremy Phillips is a founding member of the highly popular IPKat blog, to which he regularly contributes. Phillips has also been responsible for launching a number of IP publications, including Managing Intellectual Property. He is an honorary research fellow of the Intellectual Property Institute and a professorial fellow of Queen Mary Intellectual Property Research Institute, and also serves as IP consultant to international law firm Olswang.
You are one of five inductees into the IP Hall of Fame this year. How does it feel to be recognised by your peers this way?
It feels surprising, embarrassing and a little uncomfortable, because fame is a function of how many people know you, not necessarily a function of merit. I work with people who are making fantastic contributions to the IP environment every day and never get recognition for it because they are not publishing or speaking or writing; they’re just getting on with their job. They are the unsung heroes.
As a member of the IP Hall of Fame Academy since its inception in 2006, you have played a significant role in selecting past inductees. Therefore, you must accept that inductees – including yourself – are selected for merit rather than fame?
Of course. It is just that all the very best things I have ever done in my IP career have gone unnoticed, while all the more superficial, sometimes humorous, sometimes provocative things I’ve done have got attention and are perhaps what I am better known for.
What do you consider those things to be?
I have been teaching intellectual property since 1973. Many of the people I have taught have been encouraged, enthused and maybe even inspired to do much better things in IP than I ever have. I often go to conferences now and sit at the feet of my former students. As a teacher, you have never done your job until you have so empowered your students that they can out-argue you. This is why the IP world is like a family to me: my students are like my children and every so often I get to see their progress reports and am so proud that they using intellectual property to make the world a better place.
You are clearly very passionate about your work and the role that intellectual property plays in the world. Do you think it is this passion that has inspired generations of your students?
I think so. What I liked to do with my students when I had smaller classes would be to take them around a shop asking them to tell me how you could differentiate one chocolate bar from another or one cough syrup from another. We would pick things off the shelf, talk about their branding, packaging and so on and then put them back again. Shopkeepers would go mad at the sight of all these students handling their goods and buying nothing: it was wonderful! I would explain to the students that consumer choice and the existence of products that can satisfy you, cure you, make you happy – or even make you sad, if you want to be sad – are all down to IP professionals who protect, license and franchise. We are the lubricants that keep the wheels of commerce in the civilised world turning. There has never been a time in history when there was a bigger choice of products. This has been achieved by intellectual property and the IP community. My role as a teacher is really to get my students thinking from the physical to the metaphysical.
So of all your professional pursuits, is it teaching that you most align yourself with?
Absolutely. The IPKat blog – for which I am perhaps best known – started life as an addition to the reading list for IP courses at London University. Every so often, new developments in IP case law would come about and students would think that they didn’t need to know about them as they were not in the textbooks. Well, you can’t very well teach a subject in the past. These developments had happened and I couldn’t carry on teaching pretending that they hadn’t; so I decided to put all of this new information on the blog and informed my students that there was now no excuse for not knowing it. My students didn’t take very kindly to that!
Before long, I found myself getting emails from readers who were solicitors and discovered that I had a whole new student readership of practitioners. So I went from having 200 students a year, if I was lucky, to having thousands of students via the blog. The point of the blog was – and still is – to help people better understand intellectual property. No matter what their role in the IP community – whether infringer, owner or practitioner – if they understand the system better, they can make better choices.
IPKat was one of the first widely read IP blogs and remains very popular and influential today. You have also been key in the development of IP publishing, as the first editor of Trademark World and the Journal of IP Law and Practice, and also as the founder of Copyright World, Patent World and Managing Intellectual Property. What do you see as the big differences between editing an IP magazine and running a blog?
The biggest difference is the instant impact of the blog and the responses of readers to it. Whenever I post anything, I know that within half an hour there will be comments for me to moderate and respond to.
Another great difference is the transparency of a blog compared with a traditional journal or magazine article. In a blog you have the facility to hyperlink to your sources, both giving credit to the source and showing your readers where you received your information.
However, an article in a journal or magazine has the benefit of mature thought. It is clarified and refined more so than a blog can ever be. A blog is, to a large extent, always a work in progress. You have to join a blog and read it regularly in order to appreciate what you are reading, but you can read a journal article in isolation. There is very much room for both types of writing.
You have said in the past how important it is that intellectual property is intelligible to everyone. Why do you think this is and what gets in the way of intellectual property being accessible?
Quite simply, there is no facet of human life these days that isn’t touched by intellectual property. If, for instance, you photocopy something, you wouldn’t necessarily think that there is a copyright issue there; but there is. The same is true of a trademark issue if you fill a Coca-Cola bottle with a homemade drink. Or say somebody is busking in the street and you throw them a coin: are you financing copyright infringement? Intellectual property is everywhere and, therefore, it should be as simple for people to understand as traffic signs. Everybody should know what they are allowed to do, what they have to do and what they are not allowed to do.
One of the reasons that intellectual property is very complex is that it has been in the hands, for too long, of lawyers in continental Europe who cannot distinguish between questions of law and questions of fact. If you look at two very similar products, you either will be confused or you won’t be. In the United Kingdom, we see it as a simple question of fact. However, if you ask a continental lawyer the same question, he will tell you that being confused is not a question of fact, but rather a question of law. There is an over-intellectualisation of the issues.
It is the same with patent law: something either is obvious or it is not. If you are a scientist, whether you think something is obvious may be different to a layperson, but it will still be a gut reaction. You can’t expect to capture that reaction in legal terms and the persistent attempts to do so mean that we now have long, overcomplicated rules and qualifications of those rules. The lawyers who persist in trying to tighten these definitions have good intentions and are not motivated by anything other than a misplaced desire to find absolute truth in a world of uncertainties and relativities. The thinking goes that if you have a perfect definition, you can apply it in every case and make the market more predictable and give certainty to an investment.
What more could or should be done to make intellectual property both intelligible and accessible, and whose responsibility is it to do so?
It is the responsibility of every one of us to make intellectual property more intelligible and accessible. If you are a good citizen and you know something that you could explain to somebody else, you just get on and explain it. Whose responsibility is it to teach a child to cross the road? You could say it is the job of the school, or the parents, or the police or the local authority. But if you saw a young person crossing the road in a dangerous manner, you would stop and tell them to look both ways before stepping into the road. You wouldn’t assume that it is the responsibility of somebody else and therefore leave them to it. It is the same with intellectual property: we should all educate people who are not in the know as to what it is that they can and cannot do.
Taking you back to the beginning of your professional life, what inspired you to embark on a career in intellectual property and how did you start out?
I went off to do a PhD in trade descriptions law at the University of Kent, but when I got there they wouldn’t let me start it as they said I should not simply want to do research on something I already knew about. My supervisor told me to spend three months in the library browsing. I spent a very happy time doing just that. I found, eventually, a row of four books on the subject of intellectual property. I read them cover to cover and was caught by the idea of the protection of human creativity and inspiration. The way in which an idea can be captured, marketed and turned into something that everybody could enjoy really got me going. From that moment, I was hooked.
From my PhD, I went straight into academia and spent 11 years in very serious academic writing. I only gave it up when I had four children in school and I couldn’t make ends meet as an academic. So, with great sadness, I went into business, for which I had absolutely no training. I talked myself into a job running a small publishing house called IP Publishing Ltd. I nearly made a total mess of it: within the first year I lost them £200,000! But they had faith in me and it paid off, as in my second year there desktop publishing was invented and we clawed back the whole lot. I then spent time commissioning IP, licensing IP – some would say infringing IP – and having a wonderful time dealing with the commercial side of intellectual property.
Overall, how would you say the IP world has changed since you started out?
The sector has changed totally. When I first started out, it was such a niche area of law that if you were involved in any of it, you were involved in all of it. There was no room for specialism. Now the sector is so specialist that you can have five copyright lawyers in the same room with nothing to say to each other because their areas of practice are so different. This specialisation has totally changed the landscape: people have gone off into their own little worlds. As I am part of the old school, I like to bring people together and remind them that they share some of the same legal DNA, some of the same commercial DNA. It’s always important not to lose your peripheral vision.
You have announced that you will be retiring later this year. Why have you taken that decision and what are your plans for the future?
I reckoned a few years ago that however hard I work, I won’t get rich, and however little I work, I won’t get poor; so it’s an ideal opportunity – while I still have energy and drive – to do all the things that I have shelved in my life. So I will fill my time reading, catching up on all the films I’ve missed, listening to music, urban walking, rural walking and being a professional grandfather. I feel that I have a lot to offer my grandchildren. When I was little, my grandparents were sepia pictures on the mantelpiece; they weren’t part of my reality. I am young enough to play football with my grandchildren and chase them around the garden, and alert enough to play Scrabble with them. I love intellectual property and always will, but I feel it’s now time to dedicate my energies to cultivating my own life.
Finally, who are your own IP heroes?
First and foremost, my guru Neil Wilkof. He is the most outstanding person in terms of putting intellectual property into a business context, legal context and historical context. I love his writing and he is also a great public speaker. He is a great inspiration to me.
Dids Macdonald is a truly impressive woman. She is a designer whose work was infringed and from that she created a powerful edifice for protecting all small designers. Her organisation, Anti Copying in Design (ACID), achieves huge results and this year Dids was included in the Queen’s birthday honours as an officer of the Order of the British Empire. She goes to show what someone who is really determined can do.
And I could not forget Marty Schwimmer. He set up the Trademark Blog in 2002 and is a tireless advocate of moral blogging. He is a highly principled man who takes on causes with a high moral purpose, to the possible detriment of his legal practice.
2015 inductee into the IP Hall of Fame Des Ryan
Des Ryan – the humble honouree
“For an Australian, halls of fame are for famous footballers and cricketers,” laughs leading lawyer Des Ryan. “I was never likely to get into any sporting hall of fame, so this came as a wonderful surprise,” he says of his induction. “Being selected by my international peers is an extraordinary honour – something far beyond what I ever expected. And when I saw the company that I was joining, I was staggered.”
And they’re off
Despite a formidable career in IP law, during which he has received numerous awards and accolades, Ryan is remarkably unassuming about his success. When asked what inspired his career in intellectual property, he explains with amusement that he stumbled across his first job while killing time before a day at the races with his pals. “Inspiration? There was no inspiration as such. My final engineering exams had finished and I was waiting for my room mates to be done so that we could all head down to the Mornington horse races to celebrate what then seemed like the end of our academic careers,” he recalls. “I filled my time waiting for them by wandering up to the engineering school to see if there were any jobs on the notice board that were more interesting than the part-time one I had. I saw that a patent attorney wanted an engineer, so I applied.” Although Ryan did not know it at the time, he was about to take the first step of his career in patent law. “That first IP job, back in 1954, was as a trainee patent attorney at what was then a very small firm comprising just two partners, one of whom was the founder of Davies Collison Cave, Leslie Davies.”
With Ryan’s help, that small firm went from strength to strength and today Davies Collison Cave is an Australasian powerhouse. Ryan was partner at the firm between 1959 and 2001, and since retiring from partnership has held the position of consultant. His once-varied IP practice now mainly involves trademarks, domain names and some licensing. “One reason for this is that my technological training is now almost 60 years out of date,” admits Ryan. “I have certainly kept up with developments in the law, but not with technology to the extent that I would need to practise patent law; I don’t have a PhD in computer technology, for example. With only an undergrad degree in mechanical engineering, I think I’d be lucky to get an interview at my firm these days!” he laughs.
Over his 60-plus year career, Ryan has seen the firm he helped build grow exponentially. “Back in 1954, I would never have imagined that the firm would have gone from two attorneys and one assistant to something in the order of 80 attorneys, with offices not only across Australia, but also in Singapore,” he muses. And the changes in the sphere in which the firm operates have been even more dramatic. “I think the most significant things to happen during my career so far have been the extraordinary advances in technology and in international trade and development and harmonisation of the law and practice in the light of these changes,” he continues. “I refer in particular to the Patent Cooperation Agreement and the TRIPs Agreement, based on the foundation conventions of Berne and Paris. To put into context the changes in technology that I have witnessed over the course of my lifetime, I can tell you that as a young lawyer I was responsible for the introduction of the first photocopier in my firm.”
But among all this change, suggests Ryan, the principles of intellectual property have remained constant: “I have often said to young trainees in our firm that they should read a small treatise on patent law by Lord Morton published in the very early 20th century, because from it you get all the basics of the law. What you can then appreciate is that legislation and jurisprudence – both international and national – have built on those basic principles since then.”
Another way in which those budding young lawyers can develop their knowledge of the field is through participation in professional associations. Ryan is a prolific member of many such organisations and has been president of several, including the Institute of Patent Attorneys Australia and the Licensing Executives Society International (LESI). “One of the primary reasons I have been so actively involved in these bodies is that they all provide an avenue for interaction with representatives from various organisations, but also various jurisdictions and legal cultures,” explains Ryan. “But it is more than that: from a personal point of view, one is able not only to network, but also to develop strong personal friendships with people from those diverse cultures.” Gather a great number of IP professionals in a room and, believes Ryan, you get a strong feeling that you are achieving something significant. But he is also clear eyed about the commercial opportunities that such affiliations present: “Of course,” he laughs, “one also has to admit it’s good for business.”
Ryan has considerable admiration for the founders of these bodies for the influence they have exerted on the global IP landscape. His first employer, Leslie Davies, is another source of inspiration, along with Australian academic James Lahore and fellow IP Hall of Fame inductee Thomas McCarthy. Ryan also holds the late Dr Árpád Bogsch and his compatriot Francis Gurry in high regard for their work at the World Intellectual Property Organisation (WIPO). Through WIPO’s mediation programme, Ryan has helped numerous parties to resolve their disputes without resorting to expensive litigation. When asked why he believes alternative dispute resolution (ADR) is so underutilised in the IP space, he urges caution before jumping to conclusions: “I think it is a mistake to look only at the raw statistics. A lot of disputes are resolved very early on, before the point at which formal ADR would be necessary. “However, by the time you have got to the point of litigation, there is a lot at stake and the rights holder has a duty to defend its right.”
Finding the middle ground
The ideal, states Ryan, is to find a solution that suits everybody; but as the saying goes, you can’t please all of the people all of the time. “The problem with a win-win situation,” he suggests, “is that there has to be some lose-lose on both sides.” And whether the client is prepared to accept this will depend on what motivated the suit in the first place. “Clients will have the vital interests of their business at stake, but sometimes the litigation will partly be driven by personality,” he continues. “Where it is personality driven, I think a good mediator can engineer a solution. But often where vital interests are concerned, people are looking for the umpire’s decision.”
Ryan believes that one of the biggest challenges in the IP world today is balancing the interests of rights holders both against each other and against the commercial interest. “There is a risk of IP protection being overblown, but at the same time there is also a risk of that protection being severely eroded,” he muses. “It will always be difficult to determine what is the right balance between IP protection and fair competition, particularly in light of the globalisation of commerce.” The scales in this regard are continually shifting, he points out: “The economist community turned against IP in the latter part of the 19th century. And even during my career, there have been times when courts – including US courts – have been fairly unsympathetic towards patent monopolies. But it is necessary to achieve balance between the interests of rights holders while ensuring that there is a competitive marketplace.”
In weighing this balance, urges Ryan, policymakers and adjudicators should remember that “protection for innovation is essentially pro-competition. To the extent that it needs to be ameliorated, competition law questions should be dealt with as competition law questions and shouldn’t intrude too far into the basic principles of IP law. Although that might be an old-fashioned view!” he suggests self-deprecatingly.
But the international IP community would be wise to heed the words of a practitioner whose prowess in the field has earned him not only the respect of peers the world over, but also awards including the Order of Australia and the Gold Medal from both WIPO and the LESI. Selecting a highlight from among these achievements is no mean feat: “It’s a bit like being asked which of your children you like best!” laughs Ryan. However, when pressed, one recognition stands out in particular: “Certainly this award is one of the highlights, but I would say one of my proudest achievements was, as a relatively young attorney, to be elected as president of the Institute of Patent Attorneys of Australia.”
It is abundantly clear from his unassuming responses that Ryan is not in it for the accolades, but has committed the past 60-plus years of his life to intellectual property for the sheer love of it. “I once said that I have had days in IP that I have not found altogether pleasant,” he concludes, “but I have never had a boring one.”
Nikola Tesla (1856-1943) – the alternative innovator
Born in 1856 in the town of Smiljan, modern-day Croatia, Nikola Tesla was a bright child full of curiosity and ideas. His photographic memory and interest in engineering he attributed to his mother, who herself invented a number of household appliances. Tesla was a devoted student who reportedly pushed himself to extremes while studying for his undergraduate degree in Austria, sleeping very little and taking himself to the brink of a nervous breakdown. Overcome by the pressures, Tesla dropped out of university and fell into a depression at his failure to complete his studies.
But in 1884 Tesla decided to make a fresh start and emigrated to the United States, where he was introduced to Thomas Edison and invited to work for him. Tesla quickly proved himself a talented engineer, so Edison presented him with a challenge that – unbeknown to both men at that time – would alter the course of their careers. According to Tesla, Edison offered him $50,000 if he could make the Edison Company’s direct current (DC) generators more efficient. Having succeeded in this task, Tesla reportedly demanded his reward; to which the established inventor responded that the ingénue did not yet appreciate the American sense of humour. Needless to say, Tesla was not amused and the two men parted company.
Tesla v Edison
Tesla continued to make strides in his work developing an improved alternating current (AC) electricity supply system and came to the attention of entrepreneur George Westinghouse, who licensed Tesla’s patents for his polyphase induction motor and transformer and hired him as a consultant. Tesla was paid a princely sum for his consulting work and a licensing fee of $60,000; but it was the promised royalty of $2.50 for every horsepower sold that could have made him one of the richest men of his time.
Using Tesla’s technology, Westinghouse pitted himself against Edison’s General Electric in a bid to corner the market for electricity supply and lighting systems. Westinghouse clearly emerged the victor in this spat, as the DC system was superseded by AC. But this turned out to be a pyrrhic victory, as Westinghouse was brought to his knees by the cost of the competition with Edison. It was at this point that Tesla proved himself to be a man of either tremendous generosity or little business sense: he agreed to forgo his royalties, accepting a modest sum from his former employer instead.
Quotes from Nikola Tesla
“Invention is the most important product of man’s creative brain. The ultimate purpose is the complete mastery of mind over the material world, the harnessing of human nature to human needs.”
“I do not think there is any thrill that can go through the human heart like that felt by the inventor as he sees some creation of the brain unfolding to success... Such emotions make a man forget food, sleep, friends, love, everything.”
“My method is different. I do not rush into actual work. When I get an idea, I start at once building it up in my imagination. I change the construction, make improvements and operate the device entirely in my mind.”
“The scientific man does not aim at an immediate result. He does not expect that his advanced ideas will be readily taken up. His work is like that of the planter - for the future. His duty is to lay the foundation for those who are to come and point the way.”
Making radio waves
Although it is the AC supply system for which Tesla is perhaps best known, he was a tireless innovator, obtaining approximately 300 patents over the course of his career. They included the Tesla Coil – a circuit capable of generating high voltages and frequencies which facilitated advancements in X-ray, lighting and radio transmissions.
His interest in wireless transmissions led to another fierce battle to corner the market, this time with Italian inventor Gugelielmo Marconi. Marconi was backed enthusiastically by businessmen and fellow inventors alike – not least Tesla’s arch-rival Edison. When Marconi sent the first transatlantic radio signal in 1901, Tesla reportedly claimed that the Italian had used 17 of his patents to do so. But his claim was discredited in 1904, when the US patent office revoked Tesla’s patents and issued Marconi with a patent crediting him as the inventor of radio. Ultimately, Tesla was vindicated when the US Supreme Court upheld Tesla’s radio patents in 1943; but the decision came just months after the inventor’s death.
Member of the IP Hall of Fame Academy Bo Heiden pays tribute to Nikola Tesla
As Tesla advanced in age, his reputation for eccentricity grew. He was a man of strict routine and made a daily pilgrimage from the hotel in which he lived to feed the pigeons in his local park. He also dined in the same restaurant every evening at precisely the same hour. Meanwhile, his claims to the press likewise became increasingly outlandish: following the creation of a mechanical oscillator, Tesla reportedly told a journalist that he could split the planet in two and destroy civilisation with the power he was generating from his machine. He also reportedly concluded that schoolchildren would benefit intellectually from being bathed in electrical waves – a recommendation that was provisionally approved for use in New York City schools in the early 20th century. In his latter years, Tesla became preoccupied with plans for a death ray, or ‘peace ray’ as it was also called – a particle beam projector intended to protect the country from air attacks.
Tesla’s fortunes fluctuated throughout his career and he ended his days in penury. It has been suggested that Westinghouse repaid Tesla’s earlier kindness in tearing up their licence agreement for the AC induction motor by paying the ageing inventor a nominal wage. On January 7 1943 Tesla died alone in his hotel room in Manhattan.