How the IP industry has evolved and the future of IP

If there is any truth in the adage that the past is the best predictor of the future, then the evolution of the Intellectual Property (IP) industry in the last 50 years holds some secrets about the future of IP in the year 2050 and beyond.

Intellectual property has been in existence since bakers in ancient Greece sought to obtain the exclusivity of making a special bread for a year. The nature of protection offered by IP has, however, evolved over the years.

In the last five decades, globalization and international trade have intensified, questioning the effect of the territoriality of IP protection. However, IP rights are generally territorial, offering protection only within the country of registration. Therefore, a holder of a patent, for example, is required to register the invention in each country where the holder seeks protection. Worse still, the national legislations and applicable IP laws and regulations in most countries differ from one another. Consequently, international treaties have emerged to facilitate the internationalization of IP laws.

Some of these treaties include:

1. the Patent Cooperation Treaty adopted in 1970 to simplify and provide a unified procedure for the protection of inventions in several countries;

2. the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks was adopted in 1989 to make the Madrid system more flexible and more compatible with domestic legislation and intergovernmental organizations. It provides a mechanism whereby a trademark owner who has an existing trademark application or registration (known as the 'basic application' or 'basic registration') in a member jurisdiction may obtain an 'international registration' for their trademark from the WIPO;

3. the Trade-Related Aspects of Intellectual Property adopted in 1994, to establish adequate standards and principles concerning the availability, scope, and use of trade-related intellectual property rights, and a minimum level of protection that WTO Members are required to provide to the intellectual property of other Members; and

4. the European Patent Convention was adopted in 1973 to aid patent registration across Europe through a single application.

According to the World Intellectual Property Organization database, there are 208 international treaties that regulate matters related to IP.

IP Protection for Technological Innovations

We have witnessed tremendous technological innovations in the last five decades. However, IP laws have not changed so much. Generally, existing IP laws protect new technologies to the extent that such technologies are new, satisfying the novelty requirement, and fall within the nature of works protected by a patent, design, copyright, or trademark. These include innovations, artistic works, literary works, musical works, brands, and designs. An example of this is computer software, which has been categorized as a literary work and registrable as copyright. It is also registrable as a patent, where evidence of an invention can be established.

However, existing IP laws have offered little protection where a technological innovation does not fall within the definition of a registrable work. A recent example is the attempt to register an invention (interlocking food containers) created by DABUS, an artificial intelligence system, which has been accepted in South Africa and Australia but rejected in the U.S. and the U.K. The rejections have come on the basis that under the domestic IP laws of the U.K and the U.S, the inventor of a patent must be a person, and an AI is not a person. Interestingly, the IP laws in South Africa and Australia have similar limitations on who may be recognized as the inventor of a patent; however, the Courts have found ingenious ways to interpret the laws.

The Next 50 Years

In the next 50 years, we are likely to see a continuous adaptation of IP laws to meet current realities. The fourth and fifth industrial revolutions have come with potential disruption to the protection of Intellectual Property, and regulations must adapt, be reformed or set aside.

We are also likely to see a call for greater harmonization of IP laws globally. The advent of the internet has made territorially registered IPs accessible to a global audience. Furthermore, increased international trade has blurred the lines between countries. Accordingly, IP registration must offer wholesome protection to remain relevant over the next 50 years.