In the early 19th century, Intellectual Property Protection was not listed as a major trade issue. However, over the years, relentless infringement has turned IP protection into a contentious matter in global commerce.

The forces eager to breach an organization’s data can be disguised as “competitive intelligence”, governed by legal and ethical guidelines laid down by the Society of Competitive Intelligence Professionals (SCIP) or can be spies hired by foreign companies or competitors residing in domestic territory. This article talks about the challenges that the world is currently facing in terms of IP protection.

What is IP Protection?

Intellectual property, which helps businesses or innovators to earn recognition and financial benefits, needs to be protected to foster an environment for innovation. Therefore, the process of protecting an IP through various legal methods such as patents, copyright, trademark, designs etc. is called IP protection.

The phenomenon has assumed significance with the emergence of new technologies and the rapid globalization of developing economies. In fact, IP enforcement and protection have been raised as the most salient issues by US-China Business Council member companies consistently.

As the policy-makers are formulating holistic strategies to achieve the one-size-fits-all IP protection, discussed below are some of the IP protection issues that companies are currently facing.

1. Issues Due to Prevention of Patent Evergreening

“Patent evergreening” refers to the strategy opted by companies to obtain multiple patents safeguarding various aspects of the same product or process. This effectively heightens the term of exclusivity for the patent holder. Since technological inventions happen incrementally, multinational companies look forward to evergreening their patents. However, IP Rights fail to accomplish this in many countries.

For instance, the Indian Patent Act (IPA) defers the granting of patents to new forms, new use or new property of known substances under Section 3(d) of the Act. Critics believe that the “original developer” of a certain product might not be the same entity who developed the “improved” version. While this might be true for some, for many organizations it has become a hindrance.

2. Shift to Product Patent Regime

In 1995, the signatories of the Trade-Related Aspects of Intellectual Rights (TRIPS) agreement swore to align the distinct national IP protection rules with the regulations put forth by TRIPS. The main constraint enclosed in the TRIPS agreement requires the member countries to transfer their “Process Patent regime” to “Product Patent regime”. While Process Patent regime protects processes, the latter extends protection to products. This proved to be a contended challenge whenever a company tried to obtain IP Protection rights for pharmaceuticals, food and agricultural products.

While this clause was not an issue in developed countries because they work on Capitalist Economic Model, for developing countries such as India and Brazil (who try to protect the common people who are unable to afford food and medicine), Product Patent regime emerged as an enormous challenge. Under the Process Patent regime, organizations in developing countries launched generic versions of products, for which the original research was carried out by Multinational Companies (MNCs). Thus, the process of production for meeting the requirements of the people below the poverty line is becoming a hindrance.

Similarly, the process of maintaining competitiveness and achieving profits has also suffered greatly. To gain an edge, the governments of developing countries are coming up with defense mechanisms. For example, Traditional Knowledge Digital Library (TKDL) is an initiative by the Indian government to protect its rich traditional and medicinal knowledge from getting protection mainly at International Patent Offices.

3. Issues With AI Inventions

AI technology has the potential to revolutionize every sector of the global economy, including the intellectual property segment. Similarly, AI is simplifying the day-to-day IP-related tasks. However, what happens when the AI itself becomes an innovator? There are multiple challenges associated with the ownership and infringement of AI-created intellectual property. As AI machines are capable of creating subject matter, the question is whether AI can be regarded as the first owner of an IP?

Similarly, in case of IP infringement, the debatable issue is whether AI can be held responsible for creating a subject matter that infringes IP of a third party. If not, who should be held responsible for infringing an IP?

Conclusion

Countries have realized that inventors require adequate IP Protection to address the challenges that plague society. The two broad obstacles that organizations are facing in IP Protection are related to their internal operations and protection policy role. A thorough understanding of the patent system and elimination of negative impacts that come along with protection might resolve the problem.

Sagacious IP, a global IP research and consulting firm, offers solutions to acquire all forms of IP protection. Our team of highly experienced IP professionals is committed to protecting your valuable intellectual property. Click here to know more about our services.

-The Editorial Team

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