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Patents are being issued in sectors where there is no real need for intellectual property (IP) laws, thereby changing the economics of those fields, creating barriers to entry and impeding competition, says Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law at Berkeley Law. A speaker at the marcus evans IP Law Summit Fall 2010, taking place in Las Vegas, September 12-14, Samuelson talks about her efforts on keeping IP protection where it belongs, and ensuring the rules do not hinder progress in the industries they serve.
You are working towards changing patent protection laws. Why?
Pamela Samuelson: In high technological industries such as biotechnology and medical devices, patents play an important role. They provide companies with a period of exclusivity, enabling them to recoup their investments and make profits, justifying further innovation. However, there have been questions arising over the last decade whether business methods can be patented. The Court of Appeals has had a very open-ended view on this patent subject matter.
On behalf of entrepreneurs and public interest organizations, I filed an amicus brief with the Supreme Court, in a case called Bilski v. Kappos, arguing that there are fields of services and business methods that do not have the same economic profile as the high technology industries. Many services cannot be easily copied and have not undertaken high research and development costs. First mover advantages, reputation, and complementary assets are going to be much more important to firms than patents. In the software industry, we discovered that copyrights, trademarks and secrecy are more important than patents in achieving competitive advantage.
There is no one size fits all attitude towards IP rights. It depends on the industry sector. However, what I am trying to do is prevent patents from spilling over into sectors where they have not traditionally belonged and where there is no real need for IP rights. The legal profession is one example; patents have been issued on methods of selecting juries, tax strategies and methods for organizing legal information.
If a lot of patents were issued in such sectors, the economics of those fields would change, creating barriers to entry and impeding competition. Not having patents is good for innovation in certain areas. The importance of IP rights varies, and we need to find ways of fine tuning the patent or copyright rules, to ensure that the rules better serve the industries they are trying to promote progress in.
When many countries are involved, what IP protection strategies would you recommend?
Pamela Samuelson: The environment today is much better at respecting IP than it was two decades ago, when there was less commitment and awareness.
Developing countries such as China which have had a reputation for not protecting IP rights are now making an effort to protect them. They want their own nascent biotechnology and technology industries to be successful, and if their own nationals do not respect the IP rights of local companies, then those companies cannot thrive. There is now a greater awareness of IP rights, and people are realizing the importance of creating a healthy investment environment for engaging in innovation.
What other issues are challenging IP Counsel in the US, and what solutions would you suggest?
Pamela Samuelson: The expense of litigation and the uncertainty about patent subject matter are important issues. It will be cheaper for companies to license a patent than to contest the patents in court.
Looking at copyrights, there are many types of risk that a company can face, including the concept of statutory damages when a company is dealing with a lot of different copyrighted work. This could be an ISP that offers opportunities for content to be shared amongst its users, and there is a risk of liability for statutory damages that could amount to USD 150,000 per infringed work. In cases where you may have unfair use of defenses, the liability is so high that many are licensing things that they are not supposed to. This is important for companies who act as intermediaries between end users and owners of copyrights. I am helping the courts come up with guidelines that help make statutory damage awards in copyright cases more just than they are today.
marcus evans, Summits Division
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About the IP Law Summit Fall 2010
This unique forum will take place at the Red Rock Casino Resort & Spa, Las Vegas, Nevada, September 12-14, 2010. Offering much more than any conference, exhibition or trade show, this exclusive meeting will bring together esteemed industry thought leaders and service providers to a highly focused and interactive networking event. The summit includes presentations on maximizing the potential of IP portfolios, IP budget tactics and strategies for combating counterfeits.
Please note that the summit is a closed business event and the number of participants strictly limited.
About marcus evans Summits
marcus evans Summits are high level business forums for the world’s leading decision-makers to meet, learn and discuss strategies and solutions. Held at exclusive locations around the world, these events provide attendees with a unique opportunity to individually tailor their schedules of keynote presentations, think tanks, seminars and one-on-one business meetings. For more information, please visit www.marcusevans.com
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