Finding the balance

Wednesday 23rd April 2008

The theme developed during the FICPI World Congress earlier this year revealed how many areas of intellectual property are presently in a state of imbalance.

The FICPI World Congress which took place in Paris this May, has been hailed as a major success. This was due in part to its splendid location and organisation, but also because of the importance and topicality of its chosen theme, namely the search for balance in all areas of intellectual property. As this theme was developed during the Congress by the many distinguished speakers, it became clear how many areas of intellectual property are presently in a state of imbalance, and that this is due to a large number of essentially unrelated factors which have all come to the fore at this time.

In the area of patents there is the ongoing concern at the quality of patents being granted, as well as the subject matter of their inventions, with these concerns particularly affecting the areas of business methods and software. Another area of concern is the recent emergence of the so called patent trolls, which have gained international prominence with NTP’s pursuit of the manufacturer of the Blackberry™ handhelds and which until the recent last minute settlement would have resulted in the Blackberry™ devices being the subject of an injunction. These relatively new factors are however just additional stress points in an area which has always been the subject of inherent tensions between the competing interests of IP owners and users. Included in the many examples of such tensions that were identified in Paris, the North/South conflict of course, especially in respect of the availability of patented pharmaceuticals, loomed large. However there were many other examples where valid positions could be taken by both sides of the debate.

Many possible solutions were discussed in Paris ranging from the denial or dilution of the relevant intellectual property right to the use of some superimposed right such as a compulsory licence or a right of repair. None had any clear universal application but the Paris Congress had asked the right question, and if the intellectual property system is to prosper the search for the correct balance must be vigorously pursued until the solutions are found.

This editorial comment was published in Patent World in September 2006.

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