IP in an Ever-Evolving World

Jay Erstling recently spoke on the evolving world of IP law at Dennemeyer’s Forum on The Future of IP Law & Technology in eight US cities. Here, he share some of his thoughts on the subject, as well as what was learned during the forum Q&A discussions.

First, a brief look back

Some of the basic principles of IP law have stood the test of time—dating back to the Venetian Patent Law of 1474, in fact. Yet, as society has grown more sophisticated and complex, so have our IP laws and the technology and commercial practices we are trying to protect. IP protection has also grown in its importance as a practice, assuming a more central place in business, public policy and global trade.

The technological revolution can be credited for this shift. As trade and commerce became more global and competitive, the value of IP protection as a way to gain a competitive advantage in the marketplace increased greatly. The tech revolution brought many new discoveries, but at a high price. R&D costs  soared to unprecedented levels while copying got cheaper as cost-effective techniques for reverse engineering proliferated. All of this led to industry, with the support of Government, turning to IP protection as a crucial business asset. The growth has been exponential. In 2015, the world filed 2.9 million patent applications. It also filed 8.45 million trademark applications, a number that has doubled every year since 2000.

Another key catalyst for change has been increasing global participation. I was working at WIPO in 1978 when the PCT became operational.  It had 18 member countries and received a grand total of 459 applications that first year. The PCT now has 152 member countries, and in 2016, it received 233,000 applications, which is even more remarkable considering that it took the PCT 27 years to reach 1 million filings.

Now, the future

Advances in technology and artificial intelligence (AI) are going to fundamentally transform law firms and IP offices. Routine tasks will all be performed automatically and there will be a revolution in data gathering and analytics. Search engines won’t only pull up references, but they will also analyze them. File and examination histories will become so transparent and complete that they could make IDS’s obsolete.

Improving machine translation of patent applications and granted patents will make crossing language barriers easier. The EU, for example, is betting that in about 10 years machine translation will become so good that it will allow the production of legally valid translations into all EU languages.

It is also likely that AI will be at the heart of new legal issues, especially around patent eligible subject matter or the registrability of new, non-traditional trademarks. Questions that seem strange now will be hot issues, such as:

  • Can a robot be an applicant for an IP right?
  • Do robots have standing to sue for infringement?
  • Can a robot be a defendant in an infringement action?

For IP offices, continued growth in filings is going to push worksharing efforts, and truly collaborative search and examination will become the standard. The EU’s pending Unitary Patent and Unified Patent Court may become a model for other regional initiatives, perhaps among ASEAN or African countries or even the US and Canada.

Globally the IP world will continue to expand as more countries develop economically and adopt progressive IP systems. We can already see the beginnings of this among the BRICS and ASEAN countries. One result may be more consistent IP enforcement across the globe and more uniform IP rules and practices.

Thankfully, there will still be a lot of work for IP professionals to do. Automating tasks will free us to focus on things that can’t be automated: the human side of lawyering. Access to data will allow us to provide deeper, more reflective advice to clients in a more efficient, cost-effective manner. Automation will free us up to provide strategic advice, partner more effectively with clients and provide new, innovative services. Going forward, I think our profession will be more responsive, more efficient and more proficient.

To download Jay’s presentation on the future of IP visit bit.ly/jayerstlingslideshare.

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