Thursday, 30 June 2016

The Aistemos LinkedIn Group: have you checked our recent discussions?

The Aistemos LinkedIn Group now enjoys the support of 348 members. In recent times this group has offered no fewer than five further discussion topics, in addition to those hosted earlier and which have been featured in previous blogposts. Our most recent discussion topics read like this:
* Law firms in private practice may find the effective use of available data an excellent way of pitching to obtain instructions or broaden the scope of an existing client relationship. Group members are invited to share their thoughts and experiences in this regard.
* Is innovation in the US really dying? There has been so much doom-and-gloom on the social media and beyond with regard to the health (of lack of it) of innovation-driven sectors in the United States -- but is their obituary premature?
Europe, Utopia and the Unified Patent Court. Is it simply too early for IP owners and strategists to make plans for the Continent, when there is so much uncertainty and so little relevant ascertainable data?
The Aistemos LinkedIn Group is a serious and responsibly moderated LinkedIn Group which welcomes discussion and debate. Do join and feel confident to share your thoughts and opinions with us. 

If you like what you see, why not sign up to receive Aistemos blogposts by email? Just enter your address in the facility at the top of our blog's home page sidebar.

Brexit and IP: a few random thoughts

Everyone in the IP community seems to have something to say about Brexit, the impending departure of the United Kingdom from the family of European Union Member States (we've listed below a number of comments and discussions that seemed good to us, but there are plenty more around). Not to be left out, and to help focus the mind, here are a few very brief observations from our own Isak Unfors:

Independence -- but at the cost of control 

It is commonly agreed that international harmonisation of IP law is beneficial.  On a global level as well as within Europe, IP law is one of the legislative areas that enjoys the highest degree of harmonisation. Even so, many substantive legal differences remain at national level, in terms of scope of infringement, recovery of damages, availability of injunctive relief, the ability of a party to obtain a stay of infringement proceedings while validity is established, as well as issues of ownership and rights in transactions.  

Each group of stakeholder wants its interests to be fulfilled on the widest basis, through the conclusion and implementation of international agreements. This being so, the departure of the UK from the EU will have the effect of isolating stakeholders there, since they will be operating within a separate entity which is much less powerful in establishing and imposing normative IP rules than is the EU as a whole.  Instead of influencing how EU negotiates international (and regional) terms, the UK now has to take on the world. In IP matters, the UK’s formerly influential position as a leading IP power within the EU be weakened as a result of independence from EU.  In immediate practical terms, the UK will be on the outside of the Unified Patent Court (UPC) system, and will continue to have correspondingly less influence in matters concerning its structure and function.

On the subject of the UPC, it is well known that the UK has occupied a central role in the development of the UPC system, being one of the 13 countries to ratify it and with London as the prized location of one of its specialised courts.  Brexit is almost certain to delay the implementation of the UPC system and some maintain that it will prevent the UPC becoming operational at all.

Free movements of goods and exhaustion of rights

At the point at which UK leaves the European Economic Area, it will by definition leave the “single market” to which IP rights exhausts if products are sold with IP owners' consent. This will have an effect on trade balance with EU (which currently is the largest market for UK), both in terms of import and export.

Harmonisation of case law

Even though the UK may opt to continue to apply those EU directives that currently govern IP law, there is still a likelihood of divergence of legal outcomes as reflected in precedental case law. The British courts would not be bound to apply or indeed interpret EU case law, including influential rulings of the Court of Justice of the European Union.  Inconsistency is highly likely occur, giving British courts greater power over what might be seen as legislative or political matters -- but also creating greater uncertainty for IP owners who find that the same rights in the same inventions, brands and designs are treated quite differently when disputes cross the English Channel.

Here's a selection of links to Brexit-related literature that you may wish to peruse:

"IP and 'Brexit': too much uncertainty and the devil you know", World Intellectual Property Review

"Even in the case of a Brexit, UK may join Unitary Patent System", Kluwer Patent Law Blog

"Brexit and Intellectual Property Rights", Ant-Like Persistence

"What would BREXIT likely mean for IP in Africa?", Afro-IP 

"How will Brexit affect your intellectual property rights?", The Fashion Law

"Impact of UK's Brexit for Intellectual Property Rights", The National Law Review

Law firm posts:

Freshfields (here and here), Olswang (here), Bird & Bird (here)

Wednesday, 29 June 2016

How, if at all, is IP considered at Board level? A short survey

For some, IP in the Boardroom is a bit of a joke ...
Aistemos is hosting its IP Strategy roundtable tonight [for background information click our earlier blogposts here and here]. Ahead of the serious discussion which is keenly anticipated, the company has sent a survey around to friends and attendees, in order to gain some sense of precisely how IP strategy is currently considered at board level. A further objective of this survey is to get some initial feedback on what people think with a view to compiling a report for a user conference in the upcoming months.

Readers of this weblog are also invited to complete this survey, which they will find here.

Friday, 24 June 2016

Office for Creative Research: not what it seems

The Office for Creative Research (OCR) sounds like an official body; indeed, it has an almost euphemistic Orwellian ring to it.  The truth however is less sinister.  The OCR describes itself as 
"a hybrid research group, working at the intersection of technology, culture and education".  
According to the OCR:
"We build user-focused tools, public space interventions and forward-looking prototypes in the service of understanding and humanizing complex data systems".
A visit to the OCR website shows that its expertise lies in the field of data visualisation -- a discipline that has developed at a rapid pace over the past few years and which is increasingly becoming integral to the way we view information when making decisions that are based on complex fact structures.  This development has been aided by advances in software that enables these fact structures to be portrayed in a variety of dynamic and user-friendly modes; it has also been abetted by the demands made by increasingly sophisticated users and analysts.

The OCR is not specifically addressed to IP users, though there would appear to be no bar to its skill and expertise being addressed to problems arising in that market. It has already done some work on the identification of counterfeit medicines in Nigeria.

The use of visualisations in IP analytics is no new phenomenon.  The Wikipedia entry on patent visualisation pins its inception to the year 2000, and this blog has posted on the topic twice in the past year.  Aistemos has recently enhanced its own visualisation facility, which it offers through Cipher, and it is no secret that other companies in the field are dedicated both effort and resources to doing the same thing. 

This weblog welcomes all efforts to encourage higher standards of visualisation in IP analytics. We hope that improved understanding of IP data will contribute to the making of better business decisions, the achievement of a higher level of efficiency and the generation of greater profits.

Thursday, 23 June 2016

If patent data is your goal, Croatia counts too

Is patent data your goal?
Don't forgets the Croats!
Croatia is a small country, a chunk cut out of what was once Yugoslavia, with a population of not much more than four million. The country attracts little attention when compared with larger European nations and many educated people would be hard-pressed to locate it on the map. On the day that voters in the United Kingdom go to the polls to determine whether to remain members of the European Union, we record that Croatia, three years ago next week, became the EU's 28th and latest member state. 

The Croatian economy is overwhelmingly driven by tourism, a sector in which it excels, and to a lesser extent by the production and export of highly skilled football players, but it is not normally associated with intellectual property -- so why does it feature in today's blogpost?

The explanation can be found in a recent announcement from the European Patent Office (EPO) that Croatia has now joined the Federated European Patent Register (described by the EPO as "the place to find procedural and legal status data on patent applications handled by the European Patent Office"). 

This initiative is all part of a push by the EPO to provide more, and more accessible, patent registration data for users of the system as well as for any business that might be affected by the patenting activities of competitors. As part of the EPO's commitment to user-friendliness it provides an introductory video for first-time users and you can even access it by smartphone.

While the Register is more focused on smaller jurisdictions which might otherwise be looked, it is by no means confined to Europe's innovation tiddlers: following the addition of Croatia, the list of countries on the register features Austria, Croatia, Czech Republic, Finland, Former Yugoslav Republic of Macedonia, Greece, Ireland, Luxembourg, Netherlands, Romania, Serbia, Slovenia and Switzerland.

Unlike the voluntary non-profit initiative of ORoPO, the Open Register of Patent Ownership, the EPO's register does not affirm the accuracy of the records it holds.  Nonetheless it is a further valuable addition to the stock of searchable information and we hope that it will be put to good and constructive use by all who work in the IP analytics sector. Given that patent data relating to even relatively minor territories within the European Union can have a significant bearing on intellectual property-driven trade and legal protection in the half-a-billion strong single market, the Federated Register may come in pretty handy ...

For more information about Croatia, click here.

To watch highlights of Croatia's triumph over much-fancied Spain earlier this week in the Euro 2016 competition, click here.

Wednesday, 22 June 2016

Expanding a professional relationship: how can IP analytics help?

Many people assume that, since intellectual property is a niche topic, IP analytics is a niche within a niche, a recondite art that has little to offer the wider world of commerce in which most of us live. This assumption is wrong. In the first place IP is no longer a niche topic but a mainstream element of practically every manufacturing, distributing and retailing sector both online and off it.  Secondly, IP analytics is far more than an incomprehensible offshoot of so-called Big Data, a jungle of statistics, algebra and algorithms: it is a precise tool that enhances a vast array of fact-based decisions in a real world inhabited by many species of professional advisers, including even traditionally data-illiterate lawyers.

This Case Study, "International Law Firm Wins Patent Licensing Mandate", shows in literally graphic terms exactly how effective the proper use of patent analytics can be, not just in the hands of competing businesses but also when used by a law firm with intellectual property expertise when it competes with other law firms in pitching for a role advising a major corporate player.


The firm wanted to expand its relationship with an existing client in the automotive sector by securing the strategic advisory role in a global patent licensing initiative relating to autonomous vehicles.


A significant client in the automotive sector was looking to appoint one of its panel firms as the lead adviser on an IP licensing project in the field of autonomous vehicles. The firm know that a number of the firms in the ‘beauty parade’ had the capability and credentials necessary to do the work.

Due to intense competition, there is intense pressure to differentiate legal services, in terms of both quality and efficiency. At the time of the pitch, the firm had limited information about the client’s licensing strategy and less than a week to prepare. The challenge was to gain insight into the project with limited time and resources at their disposal.


Access to Cipher enabled the firm to respond to the challenges in the following ways:

1. Clustering

The automotive portfolio was comprised of over 10,000 families. Cipher instantly generated a view of the portfolio at a technology level, which isolated the clusters relating to autonomous vehicles.
Fig 1: Company (Automotive) Clusters
By harnessing the capability to set a specific cluster as a primary focus (driver assistance), the pitch team was immediately able to identify the relevant part of the portfolio.
Fig 2a: Geography
The geographic analysis highlights the European-bias of the portfolio. The age histogram below shows how corporate investment in this area is relatively recent.
Fig 2b: Age
2. Comparables

The starting point for any licensing project of this sort is to understand the patent landscape. Cipher’s ability to identify and analyse companies owning similar portfolios was pivotal at this stage.
Figure 3: Comparables

Cipher provided the flexibility to identify both the major incumbents, and the smaller players. Both of these analytical perspectives are essential to the formulation of a holistic licensing strategy.

This insight bolstered the market research that the team was able to generate from conventional sources.


The firm won the mandate, with client feedback highlighting a number of features of the pitch:

• Specific issues were addressed supported with powerful visualisations, representing a massive improvement on presenting the capabilities of the firm in abstract terms

• Emerging companies were identified by the Cipher report that were not on the radar based on work that had earlier been undertaken by the client

• The scope of the firm’s mandate was extended to include further in-depth portfolio studies, building on the findings presented in the initial Cipher reports.


You can also download a rather more polished version of this Case Study from the Aistemos website here

Monday, 20 June 2016

Microsoft and the missing Link? The LinkedIn deal has a patent profile

News broke last week of software giant Microsoft's $26.2bn acquisition of business-oriented social networking service LinkedIn. Given the magnitude of the price and the fact that Microsoft and LinkedIn both have a ubiquitous high-profile presence in the high-tech communication scene, the deal seems to have attracted little surprise, excitement or indeed interest in many quarters -- though there were some exceptions.  The Guardian, noting the price worked out at $255 per active user, described the purchase as an expensive bet. Motley Fool criticised the deal as an overpriced acquisition of unprofitable assets on the basis of no clear business plan.  Venturebeat warned of a possible privacy fiasco. Microsoft founder Bill Gates however gave it his blessing and CNBC said it heralded a new era. 

Is there a patent dimension to this acquisition? One might not think so when reading the comments of the various news services and market analysts, but IP analytics can be trusted to unearth a patent dimension where one exists. With the aid of Cipher we have thrown a few figures together below, which show this is the case here.

First, let us make a comparison of LinkedIn with other social networking companies. Taking granted patent families into account, we can see that
* Facebook and Shenzhen-based Tencent are both very well endowed with patents;
* LinkedIn’s portfolio of over 1,000 families of granted patents, though only roughly half the size of Facebook’s, is on a par with Twitter’s.

Age of a patent portfolio is also significant, since the possible maximum duration of a granted is relatively short. In this context
* Tencent has the youngest portfolio, which therefore provides legal protection and comfort for investors for a longer duration into the future, while that of Twitter is the oldest;
* Facebook and Linkedin patents share a similar age profile. Coincidentally those two companies both own relatively few patents that are 4-7 years old.

In the joined-up global information economy, the scope of territorial coverage is a major factor to take into account. In this regard Linkedin follows what can be regarded as the traditional American tech corporation pattern: its patent holdings are strongest in the United States, but its focus is a narrow one. In comparison Europe is relatively free from social networking patents.

A portfolio comparison of six leading companies based on specific technologies yields further notable information. In particular:
* All of these companies reflect a somewhat similar pattern, with a high emphasis on both data processing and social networking;
* In the cluster “Prediction and fact check”, LinkedIn seems to have proportionally more patents than any other social network company by a large margin. This being so, we note also that Microsoft seems to have plenty of patents in that area as well. Exactly two years ago to the day, LinkedIn was reported to have been acquiring fact-checking patents, so it may be speculated whether there is some potentially profitable synergy here (though probably nowhere near $26.2bn worth). LinkedIn's filing in this area has also been reported here.

Linkedin has also left a trail of reassignments, as recorded by the table above.
* This graph shows patents that have been reassigned to LinkedIn by year (including homegrown patents in red);
* This pattern of acquisition of patents essentially didn’t start until 2012;
* 2013 marked the start of a big push for homegrown patents while, in 2014, Linkedin acquired 801 patents from IBM (this being its biggest purchase to date).

Looking more closely at the LinkedIn reassignments and linking them to patent family activity, we can compare reassignments from AT&T, INC, Yahoo and Cisco with LinkedIn’s homegrown patents. In terms of filing activity:
* homegrown filing has increased, starting from virtually zero in 2010;
* In contrast, IBM patents are much older, mainly having being filed between 1997 and 2009 and peaking in 2007;
* The rest filed roughly in the window of 2002 - 2006.

How many patent applications in this sector actually get to grant? According to the table above:
* IBM has an extremely high conversion rate;
* AT&T, Yahoo and Cisco have similar conversion rates with roughly 80-90 percent of their applications converting to patents within 12 years of application. 

This data does not necessarily provide the answer to any question, but it does enable us the better to decide whether the marriage of Microsoft and LinkedIn is made in financial heaven or hell, where the combined operation might be heading, what areas of activity might be best suited for licensing-out or acquiring further patent strength -- and whether the price-tag for LinkedIn now makes better sense.

Friday, 17 June 2016

From Science to Society: Innovation and Value Creation

Aistemos is sponsoring the R&D Management Conference, which takes place from 3 to 6 July in the comfort and convenience of Churchill College, Cambridge. The theme of this year's event is "From Science to Society: Innovation and Value Creation". 

The programme is impressive, with keynotes from Joe de Sousa (UK/US Product Development Science & Technology Lead, AstraZeneca), David Teece (Tusher Professor of Global Business, Haas School of Business, University of California, Berkeley), Mark Samuels (Managing Director, NIHR Office for Clinical Research Infrastructure (NOCRI), Centre for Science and Policy) and Warren East (Chief Executive, Rolls-Royce plc).

Among the many attractions that make up this stellar event, Aistemos CEO Nigel Swycher will be giving an exhibitor presentation on Tuesday 5 July from 3:30 – 5 pm. If you're attending, do make a point of saying hello to him and tell him what you think about IP value, innovation and analytics; he's always willing to listen.

Full details of the R&D Management Conference can be found by clicking here or here.

Thursday, 16 June 2016

Steel: facing an innovation meltdown?

On Monday this weblog posted a Cipher Competitive Intelligence Report on Yahoo's patent portfolio, currently for sale via a corporate vehicle called Excalibur.  Today we're posting further material generated by Cipher, this being a Snapshot on patent-based innovation and investment in the steel industry -- so vital for economic growth but often toxic for investors at a time of over-production. The Snapshot, which you can also download from the Aistemos website here, reads like this:
Cipher Snapshot: Steel Manufacturing

An analysis of an industry in transition

• Japanese companies are IP incumbents; Chinese companies have strong momentum 
• Almost all Asian companies focus solely on IP protection in domestic market  
• European manufacturers have small portfolios but broad territorial coverage 
• Innovation pipelines are decreasing heavily
The steel industry is in turmoil. China -– once a net importer -– in an effort to saturate domestic demand hit a vicious cycle of overproduction. What was once the food for a growing industry is now the stomach-ache of the global steel industry. The question this snapshot is concerned with is whether Chinese companies have impacted the intellectual property fundamental to this industry and if so, how.

Figure 1 above shows a size/growth matrix of the world’s biggest steel manufacturers. There is a clear division between Chinese, Asian (India, South Korea and Japan) and European companies. Chinese companies (left upper corner) show a lot of momentum by having the highest growth among the groups. The figure shows that they are on the trajectory of building substantial IP portfolios in the industry. Asian companies with the exception of Tata Steel contrast this position. They are the incumbents with large and slow-growth portfolios. European companies have comparatively small and low-growth portfolios, which is surprising as ArcelorMittal is the market leader in terms of production volume.

To further dig into understanding why Chinese companies have been able to catch up and build momentum, Figure 2 above depicts a selection of Asian and Chinese companies’ patent pipeline developments over the last decade. There are two contrasting stories: while Chinese companies show a steady increase – although in small magnitude – in pending patent portfolio size, other Asian companies show an enormous decrease in its pipeline, almost closing the gap between the two groups.

Figure 2 shows Chinese companies closing the pipeline gap compared to the leading Asian companies. But with numbers showing that Asian companies still own a bigger pipeline (more pending patent applications), the question remains: will they overtake the Chinese companies as a consequence?

The age profile of the companies’ portfolios, illustrated in Figure 3, gives further insights that are in line with what the data has shown so far. Chinese companies own newer portfolios, with most of the patents being five years old or less and very few older than 10 years. In comparison, ThyssenKrupp, ArcelorMitall, Tata Steel and POSCO show portfolios that are balanced in age. The large Japanese companies exhibit the oldest portfolios with the majority of their patents aged between ten and twenty years.

A final look at territorial coverage, depicted in Figure 4, shows that geographic focus on home markets is the name of the game for Asian companies. Tata Steel seems to be the exception to the rule, having recently announced its intention of selling off its UK arm of the business. European companies have a notably, much stronger geographic profile.

There is no doubt that Chinese steel manufacturers have started noticing the importance of IP, however they are still only racking up the numbers in terms of domestic patents. In contrast, the incumbents have declined their innovation pipelines over the last decade and are today almost on level footing with the surging Chinese.

Whether this is a reaction to the current crisis in the industry is subject to speculation. What is clear is that the Chinese are the ones pushing innovations within the industry. However, they place themselves in a vulnerable position for export or expansion if they carry on with single minded IP strategies.

Tuesday, 14 June 2016

IP Strategy: Head for the Boardroom with us!

As Aistemos prepares for its next roundtable on IP strategy [on which see our earlier blogpost, "IP Strategy -- Heading for the Boardroom", here], it is worth reflecting on why this is an important topic. The logic is as follows: if 70% of your enterprise value is represented by intangibles, but 100% of your planning is by reference to financials then something is out of balance.

There are those who say that focusing and labelling IP strategy is missing the point. They argue that IP is simply part of business strategy, being managed indirectly through R&D, HR, Marketing, and Procurement.

This is wishful thinking. While intellectual property is a vital element of all of the above, it is too often that the C-suite feel ill-prepared and advised to engage in what is often regarded as a specialist subject. 
  • Chief Technology Officers (CTOs) understand the importance whether R&D output will deliver exclusivity or benefit from FTO (freedom to operate)
  • HR are aware that protection of confidential information and trade secrets is a priority; though these issues are largely people and organisational challenges
  • Marketing understand the importance of brand, but may know less about trade mark protection and how to enforce it
  • IPRs may be a standard clause in T&Cs, but implementation of ownership and licensing structures are likely to be the responsibility of Legal, or some other function.
All of the above overlooks the fact that many companies have a dedicated IP function. The point of highlighting the importance of IP strategy is to recognise that IP has evolved from a specialist subject to something that is relevant to the day-to-day operation of business.

This reality goes way beyond deciding whether to file for another patent, reaching to the heart of corporate value. Investors, lenders, collaborators and insurers are now more attentive to the strength of the underlying corporate assets. In a world where these assets are primarily intangible, it should be no surprise that there is more pressure than ever for corporates to be transparent. While this is not a balance sheet question, it does require Chief Executive Officers (CEOs) and Chief Finance Officers (CFOs) to understand how IP value is being maximised and risk mitigated.

From a pure IP perspective, this is an interesting time. It is only within the past 10 years that IP litigation has proliferated, with IP licensing being recognised as a core business activity. IP rights, and particularly patents, cost $millions to acquire but often have a non-obvious economic return. This rapid period of evolution means that there is increasing pressure to communicate -- and, as IP strategy becomes a boardroom issue, IP has to learn a new language.

There are still places available on 29 June [that's just a fortnight away!], so please register to participate in what promises to be a lively discussion.

For more information about the event, click here.  

To register, click here.

Monday, 13 June 2016

Fireworks or fire sale? Getting a grip on Excalibur

In the legends of King Arthur, Excalibur was the name of the Sword in the Stone -- a weapon with special qualities and which could only be wielded by its rightful owner.  A new Excalibur is currently much discussed in patent circles. This is a special purpose vehicle that has been set up for the purpose of selling the portfolio of Yahoo patents [the likely sale price of these patents is discussed in a critical Aistemos blogpost here].

Aistemos has taken a look at the prospects facing anyone planning to purchase these patents, following a recent report by the Wall Street Journal (WSJ).  This is what Aistemos CEO Nigel Swycher writes:

Yahoo patents: understanding Excalibur with Cipher analytics 
The WSJ reported this week on the progress of Yahoo’s proposed divestment of 3,000 patents. There have only been a handful of portfolios of this size that have ever been sold on a stand-alone basis. The best known of these are the Nortel portfolio (subsequently known as Rockstar) and Kodak.
In these situations the two big questions are always the same: who will buy the patents and how much are they worth? The precursor to both these questions are what are they? This is the question we focus on here.
Competitive Intelligence  
This is a Cipher Competitive Intelligence Report on the Yahoo portfolio for sale (now assigned to a special purpose vehicle, Excalibur). This immediately reveals that  
  • the portfolio covers a broad range of search and web technologies  
  • the rights are largely confined to the US  
  • 25% of the families are still pending  
  • Yahoo has spent over $60m building the portfolio over the last 10 years  
  • the companies who own similar portfolios include Facebook, Google, Amazon and Microsoft
Due diligence and the role of analytics 

Of more interest for those taking a serious look at Excalibur is the full Cipher report, which you can access here
This report enables you to analyse the Excalibur portfolio, and the various clusters within it. Cipher analytics allow bidders to focus on assets of interest and bypass others [message for do-it-yourself enthusiasts: if you had a team of two people working full time it would take somewhere in the region of 125 days to review the portfolio].

Surveying the overall landscape, it is not obvious that Microsoft and Google will be buyers, as they respectively already have over 8,000 and 4,500 patent families in the area. The emerging Asian companies are more likely buyers: Baidu, Alibaba and Tencent all have fewer than 1,000 families. 
It's also worth analysing the holdings of RPX and Intellectual Ventures, both of which have substantial portfolios. One thing is for sure, with this many patents in play, no one is asking Yahoo to identify their best one! The Yahoo transaction comes at a testing time. The patent pendulum has swung against patent value, and the PIPCOs (publicly traded IP companies) and NPEs (non-practising entities) are generally licking their wounds. So while the portfolio will sell, don’t expect fireworks.

Friday, 10 June 2016

IP data and applicant names: WIPO moves forward

When working on a large scale, the results of IP analytics can never be better than the available data lets them be. The same is true when drilling down in order to investigate IP activity in a specific technology or commercial sector, or indeed the current and likely future strength of the IP portfolio of a specific intellectual property owner. This is one reason why Aistemos has been an enthusiastic supporter of the Open Register of Patent Ownership (ORoPO), which was launched a year ago at the IPBC Congress in San Francisco [you can check out Aistemos's various blogposts on ORoPO here].

But there is more to the improvement of the quality of data than the voluntary affirmation by IP owners of the IP rights they hold, and this is where we can acknowledge the work which the World Intellectual Property Organization (WIPO) has been doing in the somewhat unsexy world of applicant name standardisation. WIPO's International Bureau has announced a Standards workshop on applicant name standardisation, which will take place in Geneva on 5 September 2016, to run in the same week as a series of Task Force meetings under the Committee on WIPO Standards ("CWS", to its friends).

It goes without saying that the standardisation of applicant names will facilitate and enhance our ability to find them when we search for them, which should be to everyone's benefit. This sort of work is more easily done at WIPO level than by voluntary cooperation among national and regional IP rights granting offices, and we wish it every success.

Thursday, 9 June 2016

After the party -- the prognosis: moving on from IPBC Global 2016

The party's over. The Great and the Good from the world of intellectual property-based business, having gathered together for three days of intensive thinking, discussion and networking in this year's Intellectual Property Business Congress (IPBC Global 2016), have now returned to their respective bases of operation. As memories of Barcelona fade, participants are left to ponder on what they made of the event, and how much it taught them.

Many of those present have already given insights and made some perceptive comments during the course of the Congress via Twitter (hashtag #IPBCGlobal) and other social media.  Others are still doing so.  In this vein here's a personal view from Aistemos CEO Nigel Swycher:
IPBC Global 2016 was a conference in two parts -- what was said and unsaid in the formal programme, and the conversations and meetings in the lobby and the hallways. These are my brief reflections on the two, and a common thread between them.

Intellectual property and its role and importance to business is going through a rapid period of evolution. The IPBC programme addressed this from all angles.

Theoretically, it asked whether IP was an asset class at all. I was distressed to learn that the prevailing view is that it is not (thank you Murali Dharan, CEO of IPValue and long-time friend, for spoiling my day).

Geographically, the programme studied the massive forces at play in the US, Europe and China. Here’s the potted summary: the US are in a mess. Patent quality and patent misuse are a problem, but there was a near unanimous view that reforms and judicial interventions had gone too far and that the US innovation economy was weakened as a result. This provides Europe, now with its shiny new UPC, with an opportunity to lead. I have to say that some of the messaging sounded like Europe will be a great place to litigate patents, please visit. This is not my idea of the tourism we should want to encourage.

Financially, the focus is on FRAND. While this could be misunderstood to be a specialist SEP (standards) topic, it’s not. The thesis is that litigation is an inefficient was to determine royalties. On the other hand, there is near universal agreement that a reasonable royalty was the solution to the vast majority of IP disputes. The challenge of course is to find a mechanism for allocating an aggregate reasonable royalty of a product across all the relevant rights owners. The starting point has to be acceptance that shouting louder does not mean that you receive more than your fair share.

Strategically, it was good to see the conference debate all IP rights, and the importance of integrated IP strategies. IPBC has consistently given a platform to the new breed of CIPOs (Chief IP Officers) and their increased number and importance is correlated to the increased role of IP as part of boardroom decision-making. 
I was pleased to see the increased attention on trade secrets. While there are new laws in both the US and Europe, the issue has been with us for years [Aistemos has manifested a major interest in trade secrecy management issues, here]. If companies do not look after their secrets, don’t expect the legal system to step in. As a management challenge this is so hard to get right, but really important.

Economically, there was still vast amounts of airtime for the NPEs. And a fair bit of gloating about their demise. The US Supreme Court in Alice has destroyed a number of PIPCOs. PTAB Inter Partes Reviews have made it easy to invalidate patents. Injunctions are almost a thing of the past. My views on all this don’t change. In 10 years time, only historians will remember the significance of the NPE label. As we develop more efficient licensing models, all owners will be equal -- and the current Orwellian model that inventor owners should somehow be treated differently will be a thing of the past.

Outside the sessions is a different ecosystem altogether. Organisers IAM do a great job of bringing together 500 senior IP executives, representing the largest IP organisations on the planet. This is not a gathering of people wanting to learn what may happen next. They are the group who define what happens now. Deals are done, alliances made, experiences shared. As Dan McCurdy (RPX) commented "the level of experience of IPBC attendees is such that any speaker could be replaced with any delegate”.

Which brings me to the common thread. The IP community understands that evolution needs to be slow and steady. This means collaboration on a global scale. It means knowing what’s going on. That is why Cipher has a role to play. The world needs to have a trusted source of business intelligence, to enable decisions to be made in the context of known facts and trends. In a market where many of the deals are made out of sight, Cipher’s role is to shine a light on the data that is available.

Wednesday, 8 June 2016

Intellectual property and climate change

Anglo-American publishing house Edward Elgar Publishing has just produced another book in its Research Handbooks in Intellectual Property series. It's titled Intellectual Property and Climate Change and it's edited by a distinguished US academic, Professor Joshua D. Sarnoff (Professor of Law, DePaul University, College of Law).

Given the importance of the subject matter and the fact that intellectual property is both blamed for climate change and entrusted with the solution of its many issues, readers may be surprised at the relative dearth of collections of writings on the relation between the two.  The aim of the editor in compiling this volume is well summarised by the book's web-blurb:
This innovative research tool presents insights from a global group of leading intellectual property, environment, trade, and industrial scholars on the emerging and controversial topic of intellectual property and climate change. It provides a unique review of the scientific background, international treaties, and political context of climate change; identifies critical conflicts and differences of approach; and describes the relevant intellectual property law doctrines and policy options for regulating, developing, or disseminating needed technologies, activities, and business practices.

Written by a global group of leading scholars, this wide-ranging Research Handbook provides insightful analysis, useful historical perspective, and a point of reference on the controversial nexus of climate change law and policy, intellectual property law and policy, innovation policy, technology transfer, and trade.

The contributors provide a unique review of the scientific background, international treaties, and political and institutional contexts of climate change and intellectual property law. They further identify critical conflicts and differences of approach between developed and developing countries. Finally they put forward and analyse the relevant intellectual property law doctrines and policy options for funding, developing, disseminating, and regulating the required technologies and their associated activities and business practices.

The book will serve as a resource and reference tool for scholars, policymakers and practitioners looking to understand the issues at the interface of intellectual property and climate change.
Nearly 30 contributors offer their thoughts, covering many disciplines -- but it would have been good if the scholarship was augmented by some contributions from public and private sector businesses that are believed to contribute to climate change and those that are seeking to redress it.  Given that some of the world's patent offices are pursuing 'green patent' policies and fast-tracking of patents for environmentally friendly inventions, some evaluation of these policies would be good. In truth, though, it is probably far too early to be able to measure their impact, whether on the environment and climate change or whether on the minds of innovators and investors.

Regular readers of this weblog will have an idea of the comment that we are about to make: there is no specific reference to the role of IP analytics in pinpointing trends and measuring patenting activity in climate-sensitive fields of activity.  This is unsurprising, given that developments in IP analytics are so recent and fast-moving, but it is hoped that a second edition of this work will be able to reap its benefit.

You can obtain further details of this book from the publisher here.

Tuesday, 7 June 2016

Europe, Utopia and the Unified Patent Court

The Unified Patent Court (UPC), billed on its informative website as "a single patent court covering 25 countries", is not yet functioning. Indeed, it is still some way from being kick-started into action. However, its existence and operation have suddenly entered the limelight. Two factors have brought this about.

The first is the debate over the prospect of the United Kingdom -- one of the leading participants in the new court and a major forum for patent litigation -- withdrawing from the European Union (the so-called Brexit). The UPC is institutionally integral to the European Union, being the forum for litigation of European patents with unitary effect, in addition to existing European patents. Bearing in mind that the UK Brexit referendum takes place in less than three weeks, on 23 June, the potential consequences of a UK withdrawal are inevitably a matter of concern to patent practitioners, owners and investors [the UK's Chartered Institute of Patent Attorneys has been actively involved in the Brexit debate, as indicated in an earlier Aistemos post, here].

The second reason why the UPC is so closely discussed right now is the fact that this year's Intellectual Property Business Congress Global 2016 has been taking place in Barcelona -- a European venue but also a Spanish one: Spain, it should be remembered, is a UPC denier and has not signed the UPC Agreement. This has led to further reflections about the UPC, both from non-Europeans coming into close contact with those who are immediately concerned with the new European patent regime and from those who speculate as to how Spain, as a non-UPC jurisdiction, and the UK as a possible non-EU member, will fare. What advantages might these jurisdictions offer, and what detriments might they inflict, on patent portfolio management and the mechanics of enforcement in what might be described as idiosyncratic excrescences of the global economy?

This blogpost does not propose to take sides in the Brexit debate or to rule as to the wisdom or otherwise of participating in the UPC. It seeks only to offer a warning. Many people are expressing opinions as to the likely impact of the new system, adding value judgments as to whether the changes will be good or bad for patent owners, investors and others. Some paint a Utopian picture of efficient and cost-effective pan-European enforcement; others offer a system from Hell (illustrated, left).

However respected and experienced the authors of these opinions may be, those opinions lie firmly in the realm of speculation and not informed opinion. They are sizing up a court that does not currently exist, and which has no immediately relevant body of binding precedent upon which to rely when addressing substantive and procedural issues. This court will be operating in a common market in which the EU's supreme judicial body -- the Court of Justice of the European Union -- has made it plain that the principles of European competition policy take precedence over the enforcement of private monopoly rights.

We do need to know how patent strategists, litigators, portfolio managers and investors think, and their insights can be valuable.  But we also need a lot more firm information before we can obtain a clearer view as to whether this carefully-planned and extensively revised scheme for litigating Europe's patents is better, the same as or worse than the patchwork of national courts that preceded it.