Three outstanding individuals have been inducted into the IP Hall of Fame for 2016. They have already had a profound impact on their corners of the IP world – but do not expect these pioneers to rest on their laurels just yet
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 2016 inductees: Margot Fröhlinger, Lulin Gao and James Pooley.
On June 7 more than 500 delegates congregated in the Hotel Arts for the final plenary session of IPBC Global, during which these individuals were formally inducted into the IP Hall of Fame. All three had made the journey to Barcelona to be welcomed by their fellow members, many of whom were in also in attendance. In turn Fröhlinger, Gao and Pooley took to the stage to accept the accolade and thank all those who helped them to achieve the career highlights for which they were being recognised; they also shared their aspirations for the IP communities they serve.
Before the induction ceremony, for the first time this year a lunch was held during IPBC Global for a dozen IP Hall of Fame members and several additional guests to discuss the project’s future. Around lunch tables overlooking the sparkling Mediterranean, we asked diners to offer their opinions on how the IP Hall of Fame might be developed into something more proactive. There was much enthusiasm for the suggestion of utilising the wealth of experience, insight and knowledge that the hall can call on to explore opportunities for education, advocacy and thought leadership in the IP space. Expect further updates as, together, IAM and the IP Hall of Fame consider the next steps in realising these ambitions.
The following interviews were conducted with each of this year’s inductees in Barcelona during IPBC Global.
Margot Fröhlinger makes her acceptance speech during the IP Hall of Fame 2016 induction ceremony
Margot Fröhlinger – Europe united
Principal director of patent law and multilateral affairs at the European Patent Office (EPO) Margot Fröhlinger is one of the driving forces behind the creation of the unitary patent and the Unified Patent Court (UPC) system, both at the EPO and previously while with the European Commission. She has also worked on other patent law harmonisation initiatives in Europe and internationally, including strengthening the Patent Cooperation Treaty (PCT) system and enhancing cooperation between major IP offices.
You are one of only three inductees into the IP Hall of Fame this year. How does it feel to be recognised by your peers in this way?
It feels very good. I am just a humble civil servant and was never looking for recognition. It is, however, very nice of my peers to recognise my efforts, as I have had to make a lot of effort! I am very grateful to all of them.
What inspired you to embark on a career in intellectual property?
It was purely by chance. It is the policy of the civil service in Europe that you have to move positions every so often. The European commissioner for internal market and services at the time, Mr McCreevy, asked me if I would be interested in taking the position of director of IP and if I could relaunch the Community patent, as it was then called. I knew that after more than 40 years of failed attempts, it would be a very difficult task; but I was up for the challenge!
Before joining the European Commission, you served for several years as a judge in Germany. What inspired a move from the judiciary into civil service?
I realised very quickly after joining the judiciary that I did not always agree with the laws I was required to apply, and that it would be far more interesting to be involved in the law-making process itself. Since many laws at the time were coming not from the national level, but from European institutions, I thought it would be most interesting to work for them.
You have worked tirelessly towards the harmonisation of patent systems, both across Europe and internationally. Why do you believe it is so important and who do you see as the main beneficiaries of harmonisation?
We should never forget that the patent system is at the heart of fostering, stimulating and rewarding innovation in Europe. Incidentally, this week the European Patent Office is holding its annual Inventor of the Year event. Like every year, we have nominees coming from a variety of countries and fields of technology. They have made truly fantastic innovations which not only contribute to technological and economic progress, but also improve our quality of life. These innovators deserve the best possible patent system in Europe, and that is a more harmonised, less fragmented one.
What do you consider the biggest obstacle to the harmonisation of patent systems?
There are legal, political and economic obstacles. But maybe the most important obstacles are some vested interests in Europe which are very strong opponents to a unified system. Among them are patent professionals who fear that they will lose business and some national patent offices which fear that they will lose influence and income. There are also some big businesses which believe that a unified system – although it would make life easier for them – would be even better for their competitors. Some of those with very deep pockets would prefer the system to remain complex and costly for their competitors, rather than becoming easier for themselves.
The road to reaching agreement on the unitary patent and UPC was certainly a bumpy one and at times it looked as though it would be a dead end. How did you maintain your determination and commitment to the cause when others had lost hope in it?
There were moments when things looked hopeless, but throughout the process there was a dedicated community of people who, despite the difficulties, were passionately committed to seeing it through. There was a whole spirit of community being created. I have always been able to rely on the support of this community, which allowed me to continue and overcome the difficulties one by one. I would like to stress that this is a collective achievement by a group of people who have been working on weekends and evenings in order to get things done. When you see this dedication, it keeps you going through difficult times.
The patent judges, lawyers and other patent professionals who have contributed to the creation of the UPC are my IP heroes. Without their commitment, support and relentless efforts, it would not have been possible to go ahead.
The UPC Agreement was a great achievement, but we are yet to see its implementation. How would you characterise the current situation and what are your hopes for the near future?
We have never been so close to having a unified patent system in Europe. The preparatory committee of the UPC is due to finalise its work by this summer; the select committee of the EPO Administrative Council that is responsible for implementing the unitary patent has already done so. We are now just waiting for the requisite number of ratifications.
The most important thing left to be done is the recruitment of judges for the UPC. The intention is to recruit at the beginning about 50 legally qualified judges and 50 technically qualified judges. One of the real benefits of the court is that technically qualified judges will help to accelerate proceedings and keep costs down, because the UPC will rarely need to rely on court experts. We anticipate having judges from those countries which have experienced specialist patent courts, working on a part-time basis at the UPC and part time in their own jurisdictions. This will encourage greater harmonisation of the jurisprudence of the UPC and the national courts.
As for my hopes, if the UPC becomes a success, then its jurisdiction should not remain limited to patents, but should be extended over time to other IP rights: to trademarks, designs and copyright. The UPC could eventually become the UIPC – the Unified IP Court. For the time being, this is only my personal vision, but I hope that others will share it in the future.
What will be the effect on the unitary patent and the UPC if the United Kingdom decides to leave the European Union?
In such case – which I hope will not happen – there would be a number of scenarios. First, it would not happen overnight and the United Kingdom would remain an EU member state for at least a couple of years. Once the United Kingdom had officially left the European Union, its ratification of the unified system would no longer be necessary and Italy would join France and Germany as the third country whose ratification was required in order for the unified system to come into force. In this scenario there could be a major delay to the implementation of the UPC and unitary patent. Moreover, without the United Kingdom, and without the participation of UK judges and UK professionals, the whole unified system would be much less attractive to potential users.
There is, however, in my view also the option for the United Kingdom to decide that even if it leaves the European Union, it will keep close links with the rest of Europe in a number of areas. It could also negotiate with the other member states to stay in the UPC, which in any event is an intergovernmental agreement. Some people are saying that legally this would not be possible. Personally, I do not hold that view. For me this is not a legal but a political question.
In a benchmarking survey that IAM ran at the beginning of the year, only 10% of our in-house respondents stated that they were planning enthusiastically for the unitary patent, while 11% of respondents stated that they had not given the new regime much consideration. Do you believe that our corporate respondents are making a mistake in failing to pay due attention to what will potentially be a seismic change in Europe’s patent landscape?
There may be a number of valid reasons for not choosing a unitary patent and instead choosing a classical European patent and validating it nationally, and also for not wishing to opt straight into the UPC. As far as I am concerned, any of the possible disadvantages are outweighed by the advantages of using the new system. If everything can move forward with ratification despite a vote for the United Kingdom to leave the European Union, then those respondents are making a mistake in failing to plan for it and to ensure they are making an informed decision. We know from those companies planning for the new system that there is no one-size-fits-all approach to using the new system or not. The only way that a company can know what is the right approach is through strategic and commercial analysis of its patent portfolio.
What is your opinion on the suggestion that Europe could become a much more important venue for non-practising entities (NPEs) once the UPC is up and running?
I don’t believe that this will be the case, as NPEs have an extremely attractive business model in the United States which they will never replicate in Europe. Litigation is far less risky for NPEs in the United States because lawyers will work on a contingency basis and there is no widely applicable ‘loser pays’ rule, which we have in Europe and at the UPC. In Europe, we also have many safeguards built into our system. It has been argued that in case of bifurcation, there would be a massive risk for the defendant because an injunction could be ordered before the validity of a patent had been decided. This so-called ‘injunction gap’ does not exist, in my opinion. First of all, at the UPC the judges have the discretion to bifurcate or not, and we know from all the possible candidates for UPC judges from Germany that they normally will not bifurcate, but rather think that invalidity and infringement should be dealt with together. Nevertheless, if bifurcation does happen, the division dealing with the infringement action can decide to stay it until validity has been ruled on. And if the judges decide not to stay the infringement action, then the validity action has to be accelerated at the central division so that it is dealt with before, or in conjunction with, the question of infringement. Furthermore, there will be no automatic injunctions at the UPC – judges may grant injunctions, but they are not obliged to do so. They can consider all circumstances of the case and the fact that the plaintiff is a NPE is one of those circumstances.
Finally, what do you think are the biggest challenges facing the IP world today and how do you think they could best be overcome?
There is a lot of mistrust and misunderstanding surrounding intellectual property. The public at large – and some judges – appear to favour the infringer rather than the IP owner. This is most apparent in the field of copyright, where policy makers and the general public do not seem to appreciate that this is a vital tool for stimulating and rewarding creativity.
All those engaged in the IP world should collectively become much better at educating people on the economic and social importance of IP rights, starting with young people in schools.
Lulin Gao shares his hopes for the future of intellectual property in China
Lulin Gao – China’s trailblazer
Considered by many as one of the principal architects of China’s IP system, Lulin Gao held the longest term as patent commissioner and has played a vital role in shaping the national patent regime. He has also helped to promote the emergence of patents as an asset class and has worked tirelessly to facilitate China’s participation in international IP initiatives.
You are one of three inductees into the IP Hall of Fame this year. How does it feel to be recognised by your peers in this way?
It is a great honour for me to be inducted into the IP Hall of Fame. I take this honour not only for me personally, but as a recognition of the achievement made by the IP community of China.
What inspired you to embark on a career in intellectual property?
In the 1980s I worked for China’s State Economic Commission, where the country’s science and technology plan is devised. At the time, the Chinese Patent Office was under the leadership of the State Economic Commission. I was appointed head of the Chinese Patent Office in 1987 by the State Council with recommendation by the State Economic Commission.
You were commissioner of the Chinese Patent Office and the founding commissioner of the State Intellectual Property Office (SIPO). What was the motivation for superseding the Patent Office with SIPO?
I proposed that intellectual property should be treated as a whole rather than managed by separate offices, as it would be to the benefit of the entire nation.
What, during your career to date, would you say has been the most important development in IP law and practice?
The most important development during my tenure was the first amendment of Chinese patent law in 1993. Through this amendment, we extended the term of protection to match that of the rest of the international patent community and provided patent protection for chemical compounds, agricultural drugs and pharmaceuticals. Before this, we had a patent law, but no patent protection for drugs – only for methods of making the drugs. This was a fundamental and essential change.
The second significant development during my time as commissioner was the memorandum of understanding that we reached with the United States in order that we could engage with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs).
Furthermore, through our relations with the EPO, we introduced international patent classification in a digital way and adopted the EPO’s international searching system, EPOQUE. China has made great use of this common project and we continue to foster relations with our European counterparts. In total, we have sent more than 1,000 of our examiners to the German patent office for on-the-job training and have developed a great relationship with them.
Being part of the international community is very important for the growth and development of China’s patent system. I corrected the wrong assumption that China had only a very small number of international filings and therefore would not make use of the PCT, which did not look to the future. Today, China is a great user of the PCT, so I think that choosing to participate was the right decision. Through participation in the PCT, we have been able to educate examiners, achieve the so-called ‘PCT minimum’ and enhance our examination quality – all of which has made our office closer to world class. SIPO became not only a receiving office, but also an international searching authority and an international preliminary examination authority, and Chinese became a working language for the PCT.
I insisted on building up a world-class IP training centre for the education of our examiners, as well as training IP officers from developing countries in cooperation with the World Intellectual Property Organisation (WIPO).
You have headed numerous delegations for the Chinese government at many international forums and diplomatic conferences. Furthermore, you have been awarded the Order of Merit of the Federal Republic of Germany and the EPO’s International Cooperation Medal. What do you consider your role to be in Chinese relations with the international IP community and why do you believe this role is a necessary one?
China set up its IP system much later than most other countries: we are still very young in IP terms. We need to learn from others and discover what we should adopt as our own, as well as what mistakes to avoid. Without the support and help that we receive from our fellow offices, China would have been unable to implement an IP system so rapidly. For example, so that we could become a member of the PCT, there were requirements in terms of how many trained examiners we had and access to libraries of documents – the ‘PCT minimum’ – was required; we were supported in getting what we needed by our fellow international IP colleagues.
China has had a negative reputation among the international IP community. Do you think this reputation has been justified in the past? Do you believe that there is a greater respect of IP rights now than there was perhaps five years ago? If so, why?
China set up its system from scratch and then saw rapid growth, so it took a while to catch up. Today, I believe we have an IP system in full conformity with TRIPs, but we are still open to criticism for enforcement, for transparency and for predictability. My energy is now focused on sharing China’s IP data so that the whole world can see how we have reached our decisions about patentability. This will increase transparency and predictability, and make foreign users of our system more empowered. If our decisions are available in English, then those foreign users should become more confident with using our system.
Furthermore, after carefully studying the legal systems in a number of different countries, we are considering implementing an IP appeals court – similar to the Court of Appeals for the Federal Circuit in the United States. China has 31 provinces, each with its own high court. So theoretically, if you had infringements in each of these provinces, you could have 31 different decisions. An appeals court would make one decision, enforceable across all of these regions, and provide a more consistent, cost-effective system.
Finally, I want to educate China that more patents do not mean a better patent system. We need to focus on creating quality, valid patents – and not just for patent applications, but for all forms of intellectual property. Very few Chinese companies apply for IP rights abroad, so those rights are not put to the test in the way they might be. Until we have better-quality patents being granted in China and our rights can stand up in the international marketplace, we cannot say that China is a big IP power. I think we have a long way to go and I hope we will continue to get support from friendly countries so that we can make China’s IP system better and stronger.
What are the most common misconceptions that IP owners have about doing business in China?
Some foreigners are unfamiliar with China’s system, yet still have the perception that is not favourable to foreign IP owners. If you have not used the system, then you cannot judge it. We have statistics showing that the success rate for foreign patent owners filing for infringement in China is higher than it is even for Chinese IP owners. China has a long way to go until we have a world-class IP system, but to say that we offer no protection and no enforcement is simply not true.
In 2014 you established the Gao Lulin Foundation. What motivated its creation, and what are its aims and objectives?
It was founded by myself and my partner at Beijing East IP. We believe that we should be doing something beneficial to society, so we have used some of the profits from our firm to grant scholarships for advanced degrees in intellectual property to Chinese students. We also subsidise an annual IP event in China, as well as bearing the expenditure of an international IP scholar coming to China to give a lecture to Chinese students. We also use our foundation to support international IP events, as well as IP House in the creation of a Chinese IP Court decision database to increase the transparency and predictability of Chinese enforcement.
So far, it is only supported by Beijing East IP, but we are hoping that in the future it will be supported by other firms with an interest in furthering IP education in China.
What do you think are the biggest challenges facing the IP world today and how do you think they could best be overcome?
In China, we should continuously upgrade IP awareness, from small companies to policy makers. Many high-ranking Chinese officials have a poor perception of what it means to succeed in intellectual property and they consequently do things to hurt the Chinese IP system, such as giving out subsidies for making patent applications.
We need a transparent, predictable, consistent system in China. We need to create an environment for the protection and advancement of intellectual property – to train more people to face the new global challenges, not just create an environment that rewards patent applications.
On an international level, I believe that IP protection on the Internet is a very weak point. I learnt from the draft of the fourth amendment to the Chinese patent law that there were special provisions for intellectual property on the Internet, which is good news. But I think they need further consideration, as they are using outdated principles and are treating trademarks and patents the same, which is not good for the future protection of intellectual property on the Internet. In the United States, there are new proposals, but they have not had the consensus they require to move forward. IP protection in this area is very weak and needs to be worked on at an international level.
Finally, who are your IP heroes?
My IP heroes are those who have made great inventions and creations that advance technological innovation, art and literature. Without their contributions, there would not be brilliant technological achievements, great economic development and the civilisation of mankind. All of these achievements should be protected by the IP system.
James Pooley (right) accepts his induction certificate from David Brown of Thomson Reuters
James Pooley – the secret’s out
A leading scholar and practitioner of trade secret law in the United States, James Pooley is a key advocate for the proposed Defend Trade Secrets Act. Between 2009 and 2014, Pooley was deputy director general of WIPO, where he advanced efforts towards the harmonisation of international patent law and facilitated improvements to the PCT.
You are one of three inductees into the IP Hall of Fame this year. How does it feel to be recognised by your peers in this way?
I feel of course very honoured, but also humbled by the achievements of my colleagues. It also gives me a sense of responsibility and excitement about what is coming next. That is in part because I know the future of the IP Hall of Fame is not mapped out and that, as a group, we have an intention to make it into something that will have an impact on the community that we all serve.
What inspired you to embark on a career in intellectual property?
I happened to arrive in California as an intern at a law firm just as the term ‘Silicon Valley’ was coined. One of the features that marked Silicon Valley right from the beginning was the prevalence of start-ups and frequently these companies were sued for trade secret theft. There was not much legal competition in the valley in those days – there were only four law firms that were considered large, with approximately 10 to 15 lawyers each – so I ended up doing more and more of those kinds of cases.
Eventually I became convinced – having seen that there was a theme of uninformed, unthoughtful conduct – that if people just understood the rules of the road, it would not be hard to avoid these suits. In 1981 I was saying just this to an expert that I had hired to work on a case and claiming that I would write a book on the subject if I thought anybody would be interested in publishing it. It turned out he had his own independent publishing company (which he later sold to McGraw-Hill), and he signed me up to write my first book, which was published in 1982. Six weeks after publication, the IBM v Hitachi trade secrets case broke and I was called upon to comment. That shifted me from doing a lot of those cases to a whole lot more. People began calling on me as an expert in the area.
At some point after this, I was assigned as the trade secret specialist on a big patent case. By that time I had handled many technology disputes, and I watched what was going on in the patent case and believed that if I learned the jargon, I would be able to get into that area too. The experience I then accrued in patent litigation, coupled with my background as a trial lawyer, led in 1993 to my being asked to help launch the West Coast branch of Fish & Richardson. It was there that I learnt the fine points of patent law – my colleagues taught me all the things that I didn’t know I didn’t know.
As well as legal practice and writing, I also became involved in professional organisations – especially the American Intellectual Property Law Association – which got me into public policy related to intellectual property. In 2000 I was asked to join the National Academies of Science Committee on Patent Rights in the Knowledge-Based Economy, which was formed off the back of a lot of public stress about internet-related patents. Our report in 2004 ultimately led to the America Invents Act.
As well as the work you did for patent reform, you have campaigned tirelessly for the protection of trade secrets. Tell us about your role in the recently passed Defend Trade Secrets Act and why you believe it to be an essential piece of legislation.
Back when I started out, trade secret litigation was almost exclusively a local affair. Most of the companies that split off from others moved down the street. Occasionally they went to another state, but very rarely did we encounter a case that involved foreign actors. As industry globalised, the state law system for protecting trade secrets felt increasingly antiquated. In 1996, when Congress passed the Economic Espionage Act, there was talk about creating a federal civil claim for trade secret theft; but there was insufficient political will to do so at the time.
However, since then we have seen the advent of the Internet and increasing threats to information security, and so a lot of businesses expressed concern that they needed a resource for going to court in a way that would give them nationwide service of process and a common set of rules. My role in the legislation was to provide advice and testimony to the Senate, and I was pleased to be a part of producing a useful new structure. That said, if I were designing the system from scratch, it would not have two layers: ideally the federal law would pre-empt state laws, but that is not possible in our political environment. So we have done the next best thing with the Defend Trade Secrets Act, which is to give companies the option to go to federal court directly with their claims.
How have the challenges in protecting trade secrets evolved since you first wrote on the subject in 1982?
They have gone from one simple extreme to a very complex multi-layered array of threats and challenging management. Information security could be addressed in the 1970s simply by guarding the photocopier and watching who went in and out of the front door. Once companies put their data into networks outside of their own walls, the challenges of trying to keep track and protect the integrity of that data became far more complex. Today, there are the equivalent of millions of doors into a corporate facility. With there being so many people with such broad access to so much information, the job of guarding it has become more complicated. But at the same time, the networking technology that enables sharing the information has made it easier to leverage those assets in ways that were not possible before, so there is an upside.
In 2009 you accepted the role of deputy director general of WIPO, a post that you held for five years. What would you say was your greatest achievement during your time there?
The thing that I was happiest about was the design and creation of ePCT, which brought the PCT onto an internet-based platform. We had an amazing in-house team of people from every part of the operation. For the first time in my career, I got to participate in a complete software development cycle rather than just in litigation after something had gone wrong.
What do you consider the biggest challenges faced by an organisation the size and structure of WIPO? And what are the greatest challenges facing an employee of such an organisation?
WIPO has an extremely broad mandate that deals with every aspect of global intellectual property and its impact on the world’s citizens. Organising to do that effectively in the UN framework is a challenge because of the political nature of that framework; so much of what it does is balanced against geopolitical considerations. In the abstract, that is not such a bad thing. But the UN’s emphasis on consensus sometimes leads to decisions that unduly compromise the best interests of the organisation or the IP system.
Also, the agency’s structure concentrates decision making at the top and rigid hierarchy makes it a challenge to manage human resources in a positive atmosphere. I moved to Geneva, where WIPO is located, from California, where nobody has total job security and yet people are generally happy and engaged with their jobs and enthusiastic about their prospects. Having learned that employees of the UN – like many bureaucrats – are very secure in their positions, I expected people to be entrepreneurial and willing to take risks. However, what I found instead was that staff were generally insecure and that there was a politically induced fear that something might happen to threaten their jobs. That was both a surprise and a shame, and so a lot of my management focus was on encouraging people to feel that they had room to fail without facing negative career consequences.
Your departure from WIPO sent shockwaves through the IP community and way beyond, as you made a number of very serious claims of misconduct against the organisation’s director general. The level of concern in your own government was such that the United States decided to withhold its funding from WIPO. What can you tell me about your departure and the situation as it now stands?
My discovery of wrongdoing was an unfortunate and unexpected turn of events, but represented only a fraction of my experience at WIPO, which was generally very positive. Although I have deep concerns about the level and breadth of the corruption I reported, the people who make the PCT run the way it does every day are extremely hardworking and honourable. My problem was with specific behaviours and decisions that were obviously improper.
How did these things come to pass at a UN agency? During the proceedings in Congress, WIPO’s structure was compared to FIFA’s and I think the comparison is apt: the membership of WIPO is comprised of approximately 180 countries, some of which have an attitude towards top management that is more supplicant-to-monarch than employer-to-employee. That makes oversight of what happens at the agency very fraught. When you couple that with the diplomatic imperative in Geneva, where member states often just go along in order to make the machine work, it is a challenge for the few countries which are supposed to provide moral leadership and governance oversight to ensure transparency and accountability.
As I said in my testimony to Congress, there is a right thing to do here: when you find an issue, you have to open it up and learn from it. It is true that 93% of WIPO’s budget comes from PCT fees rather than contributions, and so member states’ practical leverage is not the same as it is with other agencies. But that only means that the oversight function is more difficult, not impossible. We need to keep in mind that what is at stake is the proper functioning of the global IP systems. We cannot afford anything less than vigorous intervention to protect them.
I saw certain things and I reported them as I knew I was required to do. I am pleased that after an awful lot of effort from many people, an investigation was finally undertaken after the first was shut down; but it continues to befuddle me why we do not address this kind of situation in more or less the same way we do in other organisations where integrity and ethics are so important. There has been so much opacity and delay in the process, and that in itself is troublesome.
What changes do you think should be made at WIPO in order that it can better serve the IP community?
Member states need to come up with a system of governance that extracts politicians from this process so that the individuals at the top knows that they will be reviewed and answerable to a board of directors, just like any other executives. Without that constraint, they can be expected to act like any autocrat would. If there were a truly independent oversight body, the executive would have both the benefit of advice on large questions and cover for their decisions. An organisation becomes healthy only once it is transparent.
The 2016 inductees into the IP Hall of Fame pose for a group photo
On a global level, what do you think are the biggest challenges facing the IP world today and how do you think they could best be overcome?
The single biggest challenge is a public misunderstanding about the nature of intellectual property and the role it plays when properly managed to support the creation of wealth and the improvement of humankind in general. That potential of intellectual property – which has played out in front of our eyes for decades – is lost on most of the population, for reasons that I can certainly appreciate: there are more important things to them than understanding how this complex economic beast that seems to constrain them from doing things actually helps everyone overall. And we do not do ourselves any favours by shrouding what we do in jargon. As a result, the opportunity that we have is in the area of public education. We would all be better off if everyone understood how the various levers of IP work – for example, people would be less willing to engage with counterfeiting if they understood it rather than just being told it is wrong.
That would be a great outcome; but if at the same time that education could influence the political environment and encourage some governments to see intellectual property as more than a tool of modern colonialism, then we would really have made great progress. Having served as a diplomat in the area, my sense is that many governments are unfortunately bogged down in a political view of intellectual property that blinds them to the possibilities for their own economies and own citizens. That is not to trivialise the imbalance in the impact of IP rights in north and south: many developing countries still see patents as a net burden that raises the cost of imported goods. This concern was part of the conversation that led to TRIPs, but unfortunately the deal that developing countries were meant to get has not produced results at the level that anyone was hoping for. So we have to not only do more to convince people of a more useful way of viewing intellectual property, but also find ways to make it work better for all countries and thereby reframe the political discussion. If we were to achieve a better understanding by the public at large, it would make the political challenges much easier to overcome.
Finally, who are your IP heroes?
Three individuals stand out in my experience: Ron Myrick, Bob Armitage and Don Martens. Ron inspired me with his perspective of intellectual property as an international force. And Bob has a breath-taking talent for complex thinking coupled with simple explanation. He was largely responsible for guiding the discussions that led up to the America Invents Act, and I was glad he was on our side. Finally, Don has impressed me as he has so many others – not just with his comprehensive understanding of how intellectual property works, but also with his personal approach to professional relationships. Don proves that you can be both an effective advocate and a gentleman.