Thursday, 1 March 2012

Full of Eastern Promise: a new book on patent enforcement

The Enforcement of Patents is a title of natural interest to readers of the PatLit blog, though it becomes immediately apparent to anyone picking up this volume that its contents are aimed at understanding the legal, strategic and economic aspects of patent enforcement in Asia (the work actually belongs to the Max Plank Institute's Series on Asian Intellectual Property Law).  While PatLit has a healthy readership (last year the blog welcomed 49,986 visitors; this year it has already received 9,515, showing a year-on-year increase of 14.96%), only 7.27% of its visitors come via websites with Asian top-level domains.

The editors of this book are Reto Hilty (Director of the Max Planck Institute for IP and Competition Law, as well as editor of the Series) and Taiwan-based scholar Kung-Chung Liu. In this work they are assisted by a strong team of contributors drawn from East and West.  But what is this book about?  According to publishers Wolters Kluwer:
""Obstructions to patent enforcement exist all over the world. Increasingly, unauthorized players use protected inventions to conduct their own commercial businesses. The question must be asked whether available law provides for sufficient disincentives against the infringement of granted rights. If a patent right cannot be properly enforced, it is of little value to its owner; moreover, under-enforcement ultimately leads to tension within the entire system of protection, generating harmful repercussions and sooner or later producing dysfunctional effects. Yet protection that is too wide risks hindering further innovation. Carefully balancing the scope of legal protection with the impact of enforcement measures is essential. The more the legal focus has moved to questions of enforcement, the more the imbalance within the system of legal protection has been revealed. 
In 2010 an international conference was organized around these issues in Taipei by the Max Planck Institute for Intellectual Property and Competition Law and the Academia Sinica, Taipei, with the support of the IP Academy Singapore, the Institute of Law for Science and Technology of National Tsing Hua University, and the Graduate Institute of Intellectual Property, National Chengchi University. The aims were to provide doctrinal clarification of some common misconceptions and myths surrounding patent enforcement [Good idea -- but are any of these myths and misconceptions to be found in the generalisations contained in the previous paragraph? That's a good subject for a good argument in the bar, if not for a conference of its own], and to discuss the “more economic approach,” which is gaining growing acceptance across many countries.

This publication, derived from that conference, carries through those objectives, and also serves as a handbook for patent enforcement in major Asian jurisdictions, where there is huge potential for economic growth and patent cooperation [the word 'handbook' rather suggests a practical manual; this is a handy book, and a richly informative, but not a 'handbook']. In addition it looks into the experiences of the centralized system of patent enforcement in the United States, and into the European Union’s efforts to establish a truly international patent right governed by a unitary European patent court [I'm not convinced that these comparisons help, given the vast legal and cultural gulf that separates the US and EU from the way disputes are resolved in oriental societies]. Scholars, judges and practitioners were also invited to comment on the conference reports, greatly enriching the book [this feature works well: it is something that could equally well benefit other collections of conference-based papers]
Among the many matters treated in depth are the following: dysfunctional use of the patent system, such as misappropriation prior to grant, abuse of granted right; the interaction between patent enforcement and competition law; safeguarding the investor’s possibilities to obtain a return on his investments during a limited period of time; the need to challenge the industries’ contentions and the assertions of lobbying groups; widespread uncertainty about the impact of patent infringements; and absence of recognized standards on how to measure the losses of the industries concerned. The authors emphasize that issues of enforcement cannot be addressed in an isolated manner. The patent system, they show, can be improved by first understanding the unique features of certain jurisdictions that can spur reflections and mutual learning. Patent lawyers, regulators, and policymakers everywhere stand to benefit immeasurably from this richly significant book".
Bibliographic data: publication date December 2011 (though the copyright notice says 2012). ISBN 9041135278; ISBN 13: 9789041135278. xxvi + 466 pages. Hardback. Price £128.  Book's web page here.

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