Conclusion: seeing intellectual property beyond the legal issues
- Success for in-house practitioners will mean going beyond the law
- Enabling deals and business success will be key
- Patent practitioners will become more integrated with the business
The key to being a successful in-house IP lawyer in the future may be, put bluntly, to cut out the law.
As we have seen, technology and innovation will pervade most businesses and many aspects of society. That means that within companies and in the public arena, many more people will have an interest in, and views about, how that technology should be developed and exploited. The effective in-house counsel needs to be able to communicate with them. “You need to see intellectual property beyond the legal issues: what is it for business? It’s more imaginative than purely legal. It’s less about law and more about enabling deals and sales,” says one patent counsel, while a former in-house counsel adds: “Law is not as impactful as we like to believe. You need to understand the fundamentals of law and technology and translate that into a successful business. Having the best patent position is no good if you can’t develop a product. You need to get a market and keep it.”
In other words, in-house practitioners will have to become more proactive. The same former in-house counsel continues: “In 19 out of 20 big industrial companies, IP organisations are disconnected – reactive, support functions.” For example, many patent filings are driven by what an inventor happens to make on a particular day, rather than by an overall board-driven strategy to make the company more successful and compete more effectively. That will change. “Don’t sit in your ivory tower and expect people to come to you. Become part of their team,” encourages one in-house counsel. To some extent, patent counsel have to do their own marketing: at the moment, everyone listens to the data protection lawyer because they’re terrified about GDPR. Patent counsel need to get similar attention.
This also means recognising that patents are not something separate from the rest of the business, but integrated within it. Indeed, increasingly they will be one of many ways of securing a competitive advantage (alongside concepts such as data analysis, supply chain management and risk management). As one practitioner says: “The world will be different in 10 years’ time but the fundamentals will be same – you need to protect your IP rights, secure freedom to operate and realise the value of your IP assets. How we’re going to do it will probably change a lot.”
Which will be the big patent markets of the future?
With patents likely to be challenging to enforce in the United States for the next few years at least, IP owners will look to other established markets with trusted court systems. Foremost among these is Germany, where injunctions are available and bifurcation gives patent owners an advantage. The one missing piece of the jigsaw is significant damages awards. These may come with the Unified Patent Court, if it is launched, and could make Germany an even more attractive venue for patent litigation.
China is likely to drive both demand for and development in new technology over the coming decade. Patent applications in the country look set to keep increasing, but the quality of granted patents will likely come under more scrutiny. This could prompt some high-profile litigation, particularly if the country’s courts prove willing to uphold granted patents and award large sums in damages.
Many international patent owners view India warily at the moment. But if its economy continues to grow, it will become hard to ignore particularly for mass-market technologies such as pharmaceuticals and telecoms. If (and it’s a big if) the country’s patent office and courts improve, and if the legal market opens up, it could become a rival to China for IP enforcement. It already has some things in its favour, including the wide use of the English language, a time zone that is mid-way between western Europe and east Asia and a potential market of more than a billion people. If India does not step up, that may provide an opportunity for other strategically placed jurisdictions with developed legal systems, such as the United Arab Emirates.
Many businesses see future growth coming from Africa, particularly in technologies such as mobile telecoms and e-commerce, where markets can expand quickly even where there is no existing infrastructure. But many African countries present a hostile environment to patent owners today, with inefficient IP offices and inexperienced courts. There is an opportunity for a jurisdiction – Nigeria, perhaps, or Ghana or Egypt – to step up and lead the rest of the continent. Could we see a west or north African rocket docket emerge? “I put big hopes on Nigeria. It has far to travel but it is fundamentally interesting and has the potential to be a hub for that part of Africa,” says one in-house counsel.
Latin America will undeniably become a key market for many products and services in the next decade. Of all the countries, Brazil looks to have the best chance of becoming an IP centre, given the large number of private practitioners, established courts and a large domestic market. “I have had good experience of the courts in Brazil,” says one in-house counsel. The main impediment is its overwhelmed IP office: fixing this would make the country more attractive to patent owners, particularly from North America and in the life sciences industries. It certainly has a head start on its neighbour, Argentina, which is still not a PCT member and faces continuing economic problems. The other factor that could have an impact here is what happens in the United States: if US courts remain challenging for patent owners, then other countries in the Americas – such as Canada and Mexico – may in time also benefit.