Re Non practicing entities (trolls), it seems to me that the problem is the cost of litigation in the US with wide discovery, etc., and the exorbitant damages that juries sometimes award. Personally, however, I think using the term troll is derogatory to people that live under bridges in Scandinavian countries and prey on passing goats, particularly in the current refugee crisis.
IP Factor’s Second Annual PCT Party
Cinema City is a big place, and the signposts to the event were not as clear as they could have been. There was an
honour honor guard of plastic US marines lining the route to the escalators. Chaplin lurked in the doorway, Napoleon by the wine and Marilyn Monroe sat demurely on a bench near the entrance of the VIP suite. I received a lot of phone calls from guests that had got lost. Still, having worked up an appetite, the participants had plenty of time to mingle over the excellent range of food and drink, with white, red and sparkling wines, imported beers, teas including PCTea, espresso and cappuccino coffee, lasagne, pasta with mushroom sauce, various pizzas and mini quiches, breads and cheeses, nachos, chocolate cake, chocolate brownies, cheese cake, mousse, Ben & Jerry’s ice-creams, corn-on-the-cob, pop-corn and soft drinks. The crowd was a very nice mix of academics, TM, patent,practitioners,in-house patent practitioners, big firm and sole practitioners and the networking and atmosphere were good. Unfortunately however, there were a number of last-minute cancellations and no-shows. Perhaps the event was too close to the Jewish Festivals and some participants had backlogs. Jerusalem is not a good choice of venue and the security situation didn’t help either. I am fairly sure that is why one of our colleagues from Shechem (Nablus) pulled out at the last-minute, and suspect that this affected the Tel Aviv crowd as well. Those that did attend seemed to enjoy themselves and the feedback was very positive.
As always, Professor Phillips’ lecture was excellent, and despite the super comfortable wide leather reclining VIP seats, everyone stayed awake and attentive. Jeremy’s theme was how the profession had changed over the decades of his practice. He gave examples of the technology back in 1973 when he first entered the profession, such as the early photocopiers that produced one copy a minute and required well ventilated rooms back in the days when telephones were bulky objects that were anchored to a wall and when documents were typewritten in triplicate using carbon paper. He recalled the hard diary and the official patent office journals that were essential back then. Jeremy nostalgically recalled the days when one could be out of the office and incommunicado, when one’s secretary opened the post and after it arrived, one new that there would be no more correspondence that day. He suggested that judges then had time to think and he believed the rulings reflected this. He recalled the uncertainty with which Israel, Ireland and other similar sized countries entered the PCT mechanism (remember, this was before the
invention blending of PCTea), worrying that it would result in no work. Yet, the number of practitioners has gone up, not down. He felt that Madrid was a similar story, and overall would result in more trademark work.
Jeremy mentioned developments that were expected to change the world, such as multimedia that resulted in large firms setting up Multimedia Practice Centers that simply fizzled away, and the worries that the music industry had when Amstrad came out with the first tape-to-tape cassette recorder. He recalled the noise regarding unconventional trademarks such as smells and sounds and noted that in practice the number of such cases that were filed was miniscule and even fewer issued.
Jeremy discussed various business models that seemed the next thing, such as patent auctions and clearing houses, that had their brief moment of glory, but suggested that certain new services such as ‘informatics’ where lots of data regarding market position and the like are presented visually in nice graphics were creating a niche for themselves. The rise of the appellation of origin and its extraordinary power and lack of mechanism for cancelling in Europe was also discussed as were non-practicing entities (trolls).
Heidi Bruin took exception to Professor Phillips’ remarks about non-practicing entities and a lively exchange ensued. It seems that they reached a consensus in that entities are not required to practice to be legitimate. However, the business model of filing frivolous lawsuits to enforce dubious patents without solid legal grounds of infringement is not a reasonable and fair business model. We noted that large companies sometimes attempt to squeeze out competition in a similar manner, and such companies are also being obnoxious if they are filing suit, not because they have a case, but rather because they have deeper pockets.
Regarding the typewriter and carbon paper, Jeremy did not note the exponential effect on patent application length that the word processor era heralded.
Judges certainly had longer to think in the past. However, access to previous decisions was more difficult (as Jeremy himself noted) and more time-consuming. Legal research no longer requires getting up from one’s seat and certainly one does not need to travel to libraries. Papers ordered arrive immediately or overnight. I suspect that a very few landmark rulings are cited and referred to and back when they issued, there was a fair amount of lousy decisions as well.
Regarding Madrid, I beg to differ with Jeremy and consider that though the correct thing for Israel to do from a geopolitical and economic perspective, it has been bad news for practitioners. Israel is a net exporter, but not so much of consumer goods. Furthermore, for geopolitical reasons, Israeli companies that do develop consumer goods, often are domiciled in the US or elsewhere. I don’t think that there are many Madrid international filings originating in Israel, and although there are more trademarks being registered in Israel, most are via Madrid. If there is an office action, there may be work for a local practitioner, but this is rarely more than one hour of work, and associates sometimes shop around. In the past, one could charge for filing as well as prosecution, and again for renewals. There are not only more patent attorneys but also vastly more attorneys-at-law, all of whom are legally if not technically competent to file trademarks in Israel, and many of whom will do so. Furthermore, as Jeremy noted, unlike in the past when containers of counterfeit goods were coming into Israel’s ports, nowadays much of the fake goods are coming into the country are coming in from Alibaba and the like in individual direct delivery packages. Even were the attorney of record to be contacted by customs, it is frankly not cost-effective to enforce trademarks against such goods. This means that there is less enforcement work as well.
I think the participants enjoyed themselves. I was somewhat disappointed that only one member of the Patent Office registered (and he cancelled as his father was in hospital). I’d like to think that Israel Patent Office staff were sufficiently interested in their subject to attend a delicious reception, good social and lecture at the end of the day, that was more or less on their doorstep, despite it not being considered on-the-job and them being paid to attend. Apparently not. One hopes this was the result of overtime put in to cover the backlog resulting from the recent 10 day break they had.