Intellectual Property Financing Unveiled31 October 2019
Unlike physical assets, IP financing may seem daun...
14 January 2020
The year 2019 continued to reaffirm the importance of intellectual property in trade and investments, economic integration, and overall prosperity. ASEAN, the fifth-largest economic bloc in the world, continues to attract investors who contribute to robust and dynamic trading activities in the area. In the ASEAN Working Group on Intellectual Property Cooperation (AWGIPC) alone, there are an increasing number of dialogue partners, each wanting to heighten cooperation through various ways like capacity building, providing technical studies, and other forms of support.
Its 2019 priorities included the harmonization of rules for a more efficient IP system within the economic bloc, heightening IP awareness and drawing up best practices on IP enforcement – and soon to consider an ASEAN Trademark Registration System for a common filing system across ASEAN.
“The Pan-ASEAN Trademark Agenda project, proposed by the ASEAN IP Association, and which IPOPHL fully supports as a country pilot, is perceived to really help MSMEs with their trademark filing,” said Josephine Santiago, director general of the Intellectual Property Office of the Philippines (IPOPHL). “However, the trends in the innovation landscape are reshaping IP policies. The tremendous explosion of technologies, evolving with more sophistication, may well be requiring an exploration of new methods for IP protection and a launch of a dedicated drive for micro, small, and medium enterprises (MSMEs) and independent inventors to have a fighting chance amid the cutthroat competition in the market.”
This was echoed by Benjamin Cheong, a partner at Rajah and Tann in Singapore, who added: “Digitalization was the key driver of IP developments in 2019. The push towards digitalization has resulted in various the widespread development and usage of new technologies such as artificial intelligence, blockchain and big data.”
Meanwhile, the ever-expanding digital environment is challenging IP enforcement strategies, demanding also for new mechanisms to administer in the online space. While it is difficult to quantify the economic losses incurred from IP piracy online, several economies have begun firming up their IP policies to b be responsive to the challenges brought about by the Fourth Industrial Revolution.
So given these new developments and transformation in 2019, what is in store for Intellectual Property this 2020? According to Andy Leck, a principal who heads the IP practice at Baker McKenzie Wong & Leow in Singapore, 2020 is shaping up to be an exciting time for intellectual property. Leck expects to see the following trends and developments in 2020:
Continuing strengthening of IP rights and enforcement provisions to enhance and promote the Asia Pacific region for foreign investment and commerce. This includes further provisions relating to Myanmar, the greater protection of geographical indications, enforcement provisions and remedies, and the implementation and use of specialized IP Courts. The impact of such provisions is likely to lead to more confidence in the judicial systems at a local level.
Greater reliance on trade secrets in a company’s IP strategy and management. “The industry is already seeing this trend materializing, and it is considered to continue into 2020,” he said. For effective trade secrets management and policy, there are numerous elements that need to be implemented by an organization, including not limited to, requisite firewalls and technology to support access restrictions, employment contracts and policies to be aligned, agreements with third parties to adequately address both obligations and liabilities when it comes to both being the sharer of trade secrets and also the recipient. This involves a multidisciplinary cohesive approach involving numerous legal areas (IP, employment, commercial) as well as functional teams within the business (legal, IT, commercial, human resources, etc.). “We anticipate this will continue to be a board room issue for many companies in 2020,” said Leck.
Enhancement of copyright provisions to address online infringement and the increased use of specialized IP courts with greater expertise on matters such as technical patents, online copyright infringement and the use of blockchain, AI and other technology in IP disputes.
Provisions to address the effective role of big data in commerce and industry and ensure protection for consumers and individuals. There have been many high profile breaches regarding data and this will continue to be a key priority for many organizations, Leck said.
A growing shift to utilize blockchain and other technology to fight counterfeits and authentication in the supply chain. “And we are seeing this technology implemented, not only as an anti-counterfeiting tool, but also in relation to parallel trade and authenticity of goods and raw materials; particularly regarding sustainability and proof of origin, which are becoming key issues for our clients with consumer pressure to substantiate the supply chain and any “green” or “origin” claims,” said Leck.
The rise of the use of personalities, influencers and social media in the promotion and marketing of brands and the move away from “conventional” advertising and marketing. According to Leck, companies are realizing the importance of endorsements from online media personalities and influencers and this is changing the way companies run marketing campaigns. “In the US, UK and EU, we are seeing advertising guidance on how companies should interact with such influencers and this is likely to be an area of further guidance and regulation in the Asia-Pacific region,” he said.
For Santiago, economies in the Asia Pacific region are set to take stock of the Bogor Goals adopted by the APEC Leaders in Bogor, Indonesia, in 1994 for free and open trade and investment. The deadline for achieving this is no later than 2020.
“Action plans of the individual APEC members and of the region as a whole, intended for the realization of these goals, will be assessed,” she said. “Interim assessments made since 1994 showed some improvements in market access but areas of improvement likewise have been identified like in tariff and agriculture. IPOPHL sees IP to remain a significant factor in driving the economic growth in the region. Efforts to sustain an IP system that conducive to business will continue. This includes making IP registrations of trademarks, utility models and industrial designs; grant of patents; and deposits of copyrights more facilitative of market entry. Such ease in systems will motivate businesses to produce more IP assets. IP offices like IPOPHL are primed to embrace the Fourth Industrial Revolution to adjust work processes and ease regulations, in turn, reducing turnaround time and making for a more responsive system that addresses the needs of IP stakeholders.”
Santiago believes that efforts in 2020 will also include the continued facilitation of dialogue on the impact of IP policies on industries and innovators, MSMEs and the public, along with the role that enhanced and modernized IP standards can play to further and accelerate a nation’s progress.
In the Asia Pacific region, the IP Rights Experts’ Group of the Asia Pacific Economic Region (APEC), serves as an effective venue for pursuing exchanges and work on emerging IP issues. The IPEG dialogue is targeted towards information-sharing as well as project delivery aimed at capacity-building, along with the related initiatives and projects, such as the development of best practices. In the last forum meeting held in October, IPEG forum participants were also encouraged to work on ways each one can substantially contribute to achieve the delivery of Bogor Goals, she said.
As for ASEAN, IP priorities for 2020 include the following: complete the draft of ASEAN Common Guidelines on Patent Examination; complete the feasibility study on an ASEAN Trademark Registration System; and complete the Guidelines and Protection Mechanism of Geographical Indications of ASEAN members and the impact study of ASEAN GI registration in the bloc.
“These trends provide for more cooperation within the region, both within APEC and ASEAN,” said Santiago. “Such synergy will benefit the regional businesses in that there will be a common standard that will be followed in patent examination, trademark registration and protection of geographical indications in the region. Besides harmonization of standards for streamlined operations among IP stakeholders, efforts to develop new best practices should continue and should always take into account the role of independent inventors and artists and MSMEs in creating an IP fostering environment.”
Even with such an exciting time in IP in 2020, there are challenges that the industry is facing. One of these, according to Santiago, is the difference in the local IP laws and policies of ASEAN members, a challenge in the regional economic integration in the area of IP. She added that there is a need to standardize the IP system of ASEAN members in order for businesses within the bloc to harness more benefits from their IP registrations.
“Also, the fact that the other members do not have their own IP offices, but rather are under certain ministries of the government, makes it hard for countries to commit to any cooperation system that is being proposed since separate permissions are necessary for the same,” she said. “Thus, it is significantly beneficial to create working groups of experts, such as the AWGIPC, and task forces to address these differences by identifying areas of convergence in both substantive and procedural aspects of IP administration. Through the AWGIPC, ASEAN was able to develop Common Guidelines on Trademark Examination which facilitate IP registration within ASEAN. The same initiative is being explored in other IP categories. Benchmarking on turn-around time and sharing and adoption of best practices help advance the agenda of One Vision, One Identity and One Community of ASEAN.”
To resolve this challenge, Santiago said, the cultivation of a culture of respect for IP rights across nations has been established as a long running campaign to address emerging issues on IP. “To achieve this, we find that collaboration between critical players, government and IP owners, is a must as there can be greater capacity building and knowledge sharing,” she said. “And this should be implemented on a national, regional, and international scale. In the Philippines, we deem it necessary to take on a whole-of-society approach, inclusive of as many people as can be – consumers, advocates, research community, independent, inventors, the youth, among others – to further IP awareness. In fact, we have scaled up our awareness campaign into an education campaign through which we aim to provide the youth, the holder of the country’s future, with an extensive knowledge in IP. This is in the hopes that they also take a proactive role in improving the IP environment of the Philippines. The most recent evidence on IPOPHL’s dedication to promote the strategic of use the IP system is our launch of the National Intellectual Property Strategy which sings the hymn of synergized implementation as IP is a vital driver to human progress.”
Sanil Khatri, a senior associate at Baker McKenzie Wong & Leow in Singapore, added that another challenge is that there is a lack of cohesive harmonization of IP rules, regulations and processes within Asia Pacific, which can make it a complex region for companies to enter and conduct business, although progress is being made. “We see the need for legal advisers to be able to provide strategic advice across all relevant regions as a pre-requisite for companies active in this region,” he said.
Another exciting challenge, he says, is the harnessing of AI, blockchain, smart contracts and legaltech and technology in general to enhance the protection of IP.
“We are already seeing intellectual property offices implementing AI to improve their services and we welcome these initiatives,” he said. “For law firms or legal service providers, we see it as imperative that we stay at the cutting edge of these developments, ensuring we and our clients understand the technology, the implications, how to fully utilize the advancements and be thought leaders in this space. For example, we have a global AI Tracker which monitors the implementation of regulations affecting the use of AI in our and our clients’ key jurisdictions. As a region, Asia Pacific, does seem to be at the forefront of legal tech developments with the successful LegalTech Fest being held in Singapore and also the Singapore FinTech Festival being one of the largest FinTech Festivals to date. Singapore’s role in the tech space is supported by the fact that about 400 FinTech companies are based in the city state, and more than 20 global financial institutions have chosen Singapore as the place to establish their innovation lab or hub. Vietnam is also appearing to be a popular place for blockchain start-ups.”
For Cheong, another challenge is that the cost of IP registration may not be cheap. “Therefore, small companies such as SMEs and tech start-ups may not have the necessary funds to register their IP and their IP may not be adequately protected,” he said, “This would result in problems in the future, for example, their valuable IP being stolen or lower valuation of their IP.” He said that government support and funding is important which would give businesses the resources to better protect their IP by way of registration and having better drafted IP contracts.
There are, of course, other developmental challenges, including the lack of understanding of how such new technologies work and how IP in such new technologies can be protected and enforced; Cheong noted that governments, courts and IP offices around the world will need to have an agreement on how to treat the IP in such new technologies, how they can be protected and the process of getting such IP registered so as to have a harmonized approach. “However, this may be difficult as the technological development and legal systems of countries, especially countries in Southeast Asia, differ greatly,” he said.
With these new developments and in spite of the challenges that the IP industry is facing, the future is still bright for IP in the Asia Pacific region. “It is an exciting time for businesses in Asia Pacific, even with a projected slight dip in economic growth predictions for 2020,” said Leck. “We also see businesses in the Asia Pacific region at the forefront of innovation and being keen to be leading the way when it comes to customer and service offerings. This is also true in the legal sphere, where we see Hong Kong, Malaysia and Singapore being cited as in the top 10 emerging cities for legaltech in a report by the UK Law Society, showing how Asia Pacific is firmly at the forefront of legaltech development. We are also delighted that the annual conferences for both the International Trademark Association and International Anti-Counterfeiting Coalition will be held in Singapore in 2020 and see this as recognition of the clients and businesses, as well as legaltech, being based in this region. In addition, we are noticing an increase in the number of leading legal conferences being based in the Asia Pacific region.”
Santiago added that with technology ever-changing, ASEAN member states vow mutual cooperation and assistance, and while a score of challenges lie in these industrial revolutions, many opportunities from the Fourth Industrial Revolution – and the upcoming Fifth Industrial Revolution – can be embraced.
“As early as now, many IP offices around the world, including ourselves, are enhancing their AI capabilities to conduct a faster, more accurate and user-friendly search which is crucial in determining whether an IP asset is eligible for protection,” she said. “Thus, I am optimistic that the Philippines and the greater ASEAN will be able to maximize the benefits from the ongoing technological changes.”
Unlike physical assets, IP financing may seem daun...
DLA Phillips Fox, the DLA Piper alliance partner i...
Please wait while the page is loading...