Mongeon SeminarsThe Information you need – When you need it!

Presentation to eGoli BioBalanced IP Rights

Marcel D. Mongeon

Intellectual Property Coach

Outline

The polarization of IPRs Biotech and IPRs The prevailing views What the IP rules are today Where are they headed? And why? How to encourage balance

The Polarization of IPRs

MP3 players File Sharing, Downloading Higher speed internet The death of copyright? But:

Prevailing public sentiment is that some copying is OK

The Pirate Party

Current situation in Sweden The Pirate Bay

BitTorrent tracker i.e. no hosted content BUT facilitates copyright infringement Court decision sending operators to jail

Political force Seat in European Parliament

Other Politicization

And Yet More

Biotech engenders Polarization

Gene patents Drug patents

Brand-name vs. Generics Biologics

Current US Moves Reach-through Claims GMOs

A Problem

All IPRs are lumped together: Patents, Copyrights, Trade-marks

In some sectors some aggressive tactics Music, Film and the DMCA Geographic Indications and Food Olympics and World Cup and Trademarks

The Public Reaction

Aggressive IP Tactics lead to public problems

Public doesn’t understand issues but does react to perceived injustices People going to jail for downloading Scare tactics on GMOs

Frankenfoods

“Patents Kill Babies”

Government’s Reaction

When Public is concerned so are they The “Precautionary Principle”

How statistically can you “Prove a Negative”? Needed legislative changes in IPRs are

held up to clear the way for other related problems

The Real Problem

Public doesn’t understand Intellectual Property!

Most people can’t distinguish trademarks, copyrights, patents and trade secrets

Little understanding in public of how IP can create value

Example of Geographic Indications

Protection for names associated with items originating from known areas The Canadian ‘Champagne’ Story

Creation of value for RSA through GIs? Wine Industry Rooibos? Biltong?

IPRs – Do WeHave Enough Rules?

Patents Novelty Non-obviousness or Inventive Step Utility

In addition Doha Declaration with respect to emergency

health use Convention on Biological Diversity

Origin and Benefits Sharing

Copyright Area

What should be covered? Traditionally has covered work of original

expression Period of time was around 50 years

Trademarks

Traditional rule: Protects goods (services?) for defined classes

Expansion has been occurring for “well known” marks

International sports protection

Let’s Look at Expansions

In Patents: Some inventions no longer protectable Best example Biologicals

Patent term extensions Is it 20 or 21 years? What should be covered?

E.g. of interfaces Obviousness Reach throughs

Copyright Expansion

“Self help” remedies Digital Millennium Copyright Act

Copyright term extension The Sonny Bono Copyright Term Extension

Act Making certain information illegal

Decrypting Creation of Grey markets

Do We Need More Rules?

Indigenous and Traditional Knowledge Two issues:

Patents Prior Art and Benefit Sharing Copyright/Trademark Copying

Can this be covered by existing mechanisms?

So, What Does Balance in IP Mean?

Go back to original deal: Why do we grant patents, copyrights etc?

Deal between society and individuals In return for contributing to society (i.e.

knowledge, artistry etc) society rewards original creator with a period of exclusivity

So, is society still benefiting from this deal?

My response

Of course, IP Rights (in moderation) are needed

All of patent, copyright and trademark serve a purpose as originally envisaged

What we need to protect against is letting IPRs go beyond what the deal was

A Classic Over-Reaching

Use of IP to segment markets Coke licences to bottler in SA and Canada

separately If Canadian producer is charging too

much, why can’t I buy in SA and import into Canada?

Isn’t idea of WTO to withdraw trade barriers?

Example of European Community

Other Differentiations

Kindle Movies TV Shows

National Rights

Sometimes useful to explore history of IPRs

In 1850s who was largest infringer of IPRs?

In 1950s? In 1990s? Is it reasonable national policy to be an IP

Infringer? Real issue is need to protect own IPRs As countries generate IP, they will protect

Other IP Challenges

Patent Thickets Everyone patenting everything in sight Particularly acute in biotech Solutions?

Patent Trolls The RIM situation Possible solutions emerging

Markets for IP

Ultimately we need to develop national and international IP markets

Can be a source of national competitive advantage

Concentrate in areas of expertise

Ultimately What is Important?

People! Finding, attracting and retaining good

people Biotech is clearly an international market Canadian experience:

With US less than 150 km away for most Conditions have to favour clusters

People want to work where there are lots of jobs

A Few Words on IPR Bill

Should now be clear path to who owns Although some bureaucracy, should not be

difficult to manage Two most important aspects about the US

system: Clear ownership Properly funded

Questions?

Marcel D. Mongeon

+1 (905) 390 1818

+44 (0) 1905 70 1818

marcel@mongeonconsulting.com