Organizer: James V. Feinerman, Georgetown University
Chair: Stephanie J. Mitchell, Autodesk Far East Ltd.
Discussant: Murray Scot Tanner, Western Michigan University
Throughout Asia, a shared consciousness exists that the use of another's intellectual property is not regarded as stealing or piracy, but as a sort of non-culpable usage. Patent systems fail to maintain the patentee's monopoly but rather inform others what a particular industry is doing. This encourages all industries to use recent innovations, with particular variations. Yet, it discourages foreign investors, especially those used to a patent system that protects the patentee much more strictly. Members of this panel, academics and practitioners with much experience in the region, will provide a broad examination of its unique legislative and practical features, with attention to current controversies.
Intellectual property legal regimes will be related to other national concerns, such as trade. The panel will also consider gaps between developed and developing countries, placing contested areas of intellectual property law in much sharper focus. Of particular recent concern are overlapping, competing legal methods for intellectual property protection. Patent and copyright, critical to the protection of property rights in modern technology, are ill-suited in many aspects to regulate objects far removed from their original purview. In a global economy, trademarks and other evidence of origin are increasingly difficult to police. Valuable new forms of intellectual property, ranging from computer programs to service marks, need specially tailored forms of protection. Nonetheless, radical differences continue in style and emphasis with respect to intellectual property law and regulation. Prospects for cooperation and harmonization of intellectual property regimes remain clouded.
In the Pacific region, two trends seem to have developed. First, almost every nation claims concern about "improving" the efficacy of its intellectual property laws. Second, developing nations have tended to model their new laws on a few established patterns; yet despite the adoption of fairly good legislation, their actual implementation of it is often wanting. This panel will place these issues in comparative perspective and bring the analyses of academic specialists and legal practitioners to bear on intellectual property problems in the region highlighted by both recent actions of the U.S. Trade Representative and newly enacted trade-related intellectual property measures (known by the acronym TRIPS), part of the new WTO, affecting all nations.
Aspects of Legal Protection of Intellectual Property in the Asia-Pacific Region:
Theory and Practice
James V. Feinerman, Georgetown University
Acquiring technological capabilities is basic to socio-economic development of countries in the Asia-Pacific region. International transfer of technology from transnational corporations is a principal channel for the transfer of technology to enterprises. Foreign technology can be obtained through "open" means (education, purchase of capital goods, international technical journals, hiring individual specialists, as well as contractual arrangements). Most observers agree that a strong system of intellectual property protection is an essential component of a climate conducive to foreign investment, technology transfer, and research and development by transnational companies. While the main factor appears to be the prevailing economic environment in the host country, determined very broadly, some economists have argued that regulatory regimes are not a major influence on most investment decisions. Yet, intellectual property protection is crucially important to certain high technology industries; moreover, the interrelationship of several forms of intellectual property protection has become increasingly important in certain areas (i.e., computer software). New technologies often present dilemmas for the existing modes of IP protection; for example, is computer software best protected by copyright, patent or sui generis legislation? This paper will examine the legal implementation of intellectual property protection in the Asia-Pacific region, as it reflects these elements.
Business Perspectives on Intellectual Property Protection Regimes: A View from
the Trenches
Stephanie J. Mitchell, Autodesk Far East Ltd.
As legal representative (Asia-Pacific Legal Counsel) of both a major producer of intellectual property and an industry consortium dedicated to intellectual property protection of software in the Asia-Pacific region, this panelist will present a representative sampling of experience with both intellectual property violations and national regulatory regimes in the region. Focusing particularly on the practical effects of traditional diversions among enforcement agencies, the paper will highlight some of the difficulties encountered as a result of the incompatibility of certain mechanisms with the demands of modern technology. Prospects for improvement, immediate and long-term , will be examined, with a view to rationalization of regulation (along technological lines) and harmonization of regulatory regimes (among nations in the Asia-Pacific region).
Organizational Effectiveness of Intellectual Property Enforcement
Loke Khoon Tan, Baker & McKenzie
Effectiveness of intellectual property protection enforcement varies widely in the Asia-Pacific region. Chiefly, such differences depend on two separate variables: the specific country's legal regime and the type of intellectual property being protected. Thus, Singapore's regime will be quite unlike that of China; at the same time, patent rights may prove-on a region-wide basis-far easier to protect than trademark. Yet even these broad differences are subject to some manipulation. Zealous enforcement efforts by all manufacturers of a particular product, for example, may succeed in effectively protecting an intellectual property right otherwise susceptible to infringement. Similarly, an active program of private prosecution in a particular country may greatly lessen, or possibly eliminate, violations that have proven difficult to eradicate in a particular jurisdiction.
Drawing upon his experience as a partner in the world's largest law firm, with special reference to practice in the People's Republic of China, this panelist will explore competing regimes for structuring intellectual property rights and anti-counterfeiting planning for trademarks, patents, copyright, trade names, computer software, designs, food and drug, and media and advertising. As with the other panelists, this presentation will offer a regional comparative perspective as well as more general legal analysis.