I nfluence takes many forms. From the aca-demics and theorists whose ideas filter downto shape our views, to the legislators, admin-istrators and judges who set and uphold the

rules, to the IP creators, owners and users whoseek to sway opinions and protect their interests,the MIP team had to choose from a wide pool.

This year we have grouped the top 50 intofive distinct groups: the rulemakers, the cam-paigners, the strategists, the enforcers and theinnovators. These divisions demonstrate thatpeople and organizations with radically differentviews on IP often influence the system in a verysimilar way. Our campaigners group, for exam-ple, includes both Eli Lilly’s Bob Armitage andthe AIPLA’s Mike Kirk, supporters of patentrights, and Ellen t’Hoen and James Love, repre-sentatives from non-governmental organizationsconcerned with access to medicine. This high-lights the disparate nature and interests of thoseseeking to change the existing IP regime to ben-efit users and consumers.

Reform is a key theme among those included inthis year’s list. Some are involved in legislativechanges in the US; others in discussions overopening up the patent system in Europe; and afew have proposed more radical, international,reforms to the IP system as it affects developingcountries and access to drugs, for example.

Our group of innovators is also diverse. Itincludes the ubiquitous patent troll and NathanMyhrvold of Intellectual Ventures, representing anew trend towards assertive IP litigation, along-side Microsoft’s Marshall Phelps and GE’s ToddDickinson, who are more likely to find themselveson the receiving end of aggressive, and sometimesfrivolous, patent claims. But what all of themhave in common is that they are shaking up theway businesses approach their IP rights anddefend their assets. The same is true for some ofthe other people included in the innovators cate-gory, who represent brand owners and the fightagainst counterfeiting.

Although we believe the list represents themost important trends in IP theory and practice, itis not a survey and it is not scientifically compiled.No one has paid to be included; no lobbying hastaken place. The order of appearance in the listdoes not reflect any ranking.

COVER STORY: MIP 50

The most influential people of 2006Over the next 20 pages, MIP presents its fourthannual list of the most influential people in IP.Join us as we meet the 2006 top 50

www.managingip.comJuly/August 2006 33

This year’s MIP 50 comprises 19 people from the US, 21from Europe, two from Africa and seven from Asia. Of thetotal, there are 13 rule makers, 16 innovators, sevenenforcers, seven strategists and seven campaigners.

United States 19United Kingdom 7China 4France 4Germany 3Netherlands 3Denmark 2Australia 1

India 1Japan 1Nigeria 1Portugal 1Sudan 1Sweden 1Troll 1

MIP 50 at a glance

COVER STORY: MIP 50

www.managingip.comJuly/August 200634

T here is a lot of dissatisfactionwith the US patent system.Complaints range from the qual-ity of patents granted to the

costs of litigation and the perceivedimbalance between patent owners’rights and freedom to innovate.Problems with the existing system werehighlighted in reports published by theUS antitrust watchdog, the FTC, andthe National Academies in 2004 – andthese in turn prompted legislativeefforts in Congress.

At the heart of these efforts isCongressman Lamar Smith, who chairsthe 22-member House subcommittee oncourts, the internet and intellectualproperty. He told MIP he considers it anhonour to chair the subcommittee,which he says is “the most sought-afterassignment, the number-one choice” formembers of the larger judiciary commit-tee. Smith is a RepublicanRepresentative from Texas, a statewhich has its fair share of high-techindustry and where property rights arewidely respected, and the subcommitteeprovides him with a chance to place hispersonal stamp on one of the biggestpolicy issues in the US.

A congressman since 1987, Smithalso sits on the judiciary committee’simmigration subcommittee, and serveson the House science committee (and itsspace and research subcommittees) aswell as the committee on homelandsecurity and the committee on standardsof official conduct. He has been widely

recognized for his work: the InformationTechnology Industry Council namedhim Legislator of the Year in 2005 andthe National Journal identified him asone of the 100 most influential people inWashington DC.

In response to calls for reform of theUS patent system, Smith last year pro-posed a bill known as HR 2795, whichwas followed shortly by an amendedversion, and these form the basis of thechanges being considered to the systemof patent protection in the US. Smithsays it is clear why reform is needed:“The first goal is to improve patentquality – that benefits everybody –patent filers and public. The second aimis to eliminate abuses of the systemwhere individuals file frivolous lawsuitson patents and the third is to make USpatent law more harmonized with prac-tice worldwide.”

But despite broad agreement onthe need for basic reforms – suchas the switch to a first-to-filesystem and the adoption of apost-grant opposition –progress has been slow.This is partly because anumber of the originalproposals split US indus-try down the middle.

While most patentowners agree thatreform is needed, somehave very different prior-ities to others. Those inthe IT industry havepushed hardest forreforms to deal with thethreat of over-litigiouspatent trolls – but some ofthe proposed remediesthreaten to undermine prin-ciples that are important toother industries. For example,the Biotechnology IndustryOrganization stronglyopposed provisionsin the

original bill that would restrict injunc-tions and do away with the best moderequirement; these were removed fromthe amended version. Smith acknowl-edges the challenge posed by conflictinginterests: “There are diverse interests ofinterested parties and different businessmodels for different types of companies.We’re trying to balance all the interestsof various parties and come up with leg-islation that will do no harm to any par-ticular section.” To address some ofthese questions, Smith’s subcommitteehas held seven hearings, with two moredue in the coming months, coveringissues including patent quality enhance-ment in the information-based econo-my, patent harmonization and patenttrolls.

Smith agrees that patent trolls are thebiggest immediate concern for many

THE RULEMAKERIP’s man in WashingtonProposals to simplify,improve and harmonizethe US patent system haveprovoked controversy andsplit US industry.Congressman LamarSmith has the task of rec-onciling competing inter-ests to provide a patentlaw for the 21st century

COVER STORY: MIP 50

www.managingip.comJuly/August 2006 35

companies: “Unfortunately there aretoo many instances of individuals whohave weak patent claims and file law-suits against companies to get them tosettle out-of-court for many thousandsof dollars. The cost of defending caneasily be half a million dollars. There isa temptation to go pay the $50,000 or$100,000 and eliminate the necessity ofgoing to court.” While some patentowners are genuine inventors with goodmotives, he says, “other individualshave very suspect patents and simplyfile lawsuits”.

The Supreme Court’s interventionin the eBay case in May went someway towards reining in the trolls, bytightening up the rules on wheninjunctions should be granted. Smithbelieves that has addressed one of theissues that had been holding upreform: “The recent Supreme Courtcase in eBay was very helpful. It sentout a message that injunctions are notalways automatic but decided on acase-by-case basis.”

While the main focus of Smith’s workis domestic, he also has to confrontinternational issues, especially to dowith IP enforcement. “I’d like to see IPrights enforced in countries making anindustry out of copyright infringementand piracy – China and Russia forexample,” he says. “We are trying toleverage trade agreements with thosecountries and enforce IP rights. We’ll tryto promote that in any future tradeagreements.” But he believes the incen-tive to promote and protect IP will comewith increased development in suchcountries: “Until those countries haveself-interest in protecting IP rights, itwill be difficult to get them to enforcerights from other countries.”

But for the foreseeable future it ispatent reform that will be the main pri-ority for the Yale-educated Republicancongressman, who previously practisedlaw and managed a family ranch inTexas. “I’m optimistic we’ll get it donenext year,” says Smith. “The biggestchallenges for IP owners are being ableto protect their IP rights and the need tomake sure they are enforced, as well aseducating the public on the need to pro-tect them.”

Pascal Lamy, WTOThere can be few more demanding jobsin world diplomacy. Pascal Lamy, theFrenchman who took over as WorldTrade Organization (WTO) directorgeneral last September, is under pressureto finalize the latest round of globaltrade talks by persuading governmentsto slash agricultural subsides and otherbarriers to trade. But wrapped up in thedebates are three issues of vital concernto IP owners: access to drugs, protectionof traditional knowledge and regulationof geographical indications. Membergovernments failed to agree on any ofthese issues at the last WTO ministerialmeeting, held in Hong Kong inDecember, and it looks increasingly like-ly that the IP matters will be used as bar-gaining chips in broader trade disputesbetween the developed and developingworld. Leaders worldwide, includingGeorge Bush, have vowed to kickstartthe stalled Doha negotiations but agree-ment still seems far off. In the meantime,the WTO is likely to grow further withRussia and Vietnam hoping to join thisyear.

Wubbo de Boer, OHIMWubbo de Boer brought a reputationfor northern European efficiency whenhe joined the Community trade markand design office in Alicante as presi-dent in 2001. He now has a new seniorteam in place, with Peter Lawrencevice-president in charge of finance andVincent O’Reilly taking over Alexandervon Muhlendahl’s role shaping law andpolicy. A stronger emphasis on meetingdemands from users means backlogs inexamination have been reduced; initialstaff resistance has been overcome;and, most importantly for applicants,fees were substantially reduced lastyear. But de Boer still has to satisfy crit-ics that examination standards havenot been sacrificed, and the Board ofAppeals – a semi-autonomous part ofthe Office – has to become more effi-cient and consistent under its new head,Paul Maier.

Peter Mandelson, ECCritics of policy making in Europepoint out that IP issues span too manydifferent portfolios – with InternalMarket Commissioner CharlieMcCreevy, Competition Commissioner

Neelie Kroes and Trade CommissionerPeter Mandelson, among others, allplaying a role in shaping strategy andpriorities. Of these three, former UKtrade minister and political fixerMandelson has impressed observerswith his support for IP owners. On arecent visit to China, he spelt out whatthe EU expects in terms of enforcement– and promised to keep revisiting thecountry until demands are met. He hasalso spearheaded a joint EU-US plan tocombine resources in countries withhigh levels of piracy.

Francis Gurry, WIPOThe brains behind WIPO, according toone observer, Francis Gurry is the ami-able Australian who was recently reap-pointed as deputy director general incharge of some of the Organization’smost important activities, including thePCT and management of theArbitration and Mediation Center.After 21 years in Geneva, following acareer as a solicitor and law lecturer inAustralia, he has worked in almostevery area of IP, and his current respon-sibilities cover patents (the PCT),domain names (the UDRP, under whichmore than 600 cases had already beenfiled by May 10, compared to a total ofless than 1500 in the whole of last year)and traditional knowledge and folk-lore, where WIPO is working alongsideother international bodies to addressthe developed/developing countrydivide. Gurry’s term as deputy directorgeneral expires in 2009, when he willbe 58, which probably rules him out oftaking on the top job at WIPO. Butwatch this space.

Kamil Idris, WIPOKamil Idris has survived considerablecontroversy over the past two years.Although no accusations were evermade against him personally, he hashad to lead an organization whosefinances and projects have been sub-jected to in-depth scrutiny followingaccusations of cronyism and mis-spend-ing. Idris has responded by putting inplace systems to improve accountabili-ty and address criticisms – not an easytask given the limits placed on his abil-ity to make decisions by WIPO’s mem-ber states. Idris was reappointed to asecond term as WIPO director in 2003

More rulemakers...

and will remain in Geneva until 2009.Popular with representatives of devel-oping countries (he comes from Sudan),Idris has brought an evangelical zeal topromoting the role of IP in develop-ment. He has also raised the profile ofissues such as traditional knowledge atWIPO. His role includes being head ofthe International Union for theProtection of New Varieties of Plants(UPOV).

Jon Dudas, USPTOAs head of the USPTO, Jon Dudas isPresident George Bush’s main man onIP. His role includes not just managingthe Office but helping to shape thefuture of the US patent system and liais-ing with (and sometimes putting pres-sure on) counterparts overseas.Domestically, Dudas is pushing forwardwith plans to increase private sectorinvolvement in patent searching, to cutpendency by hiring more staff, toimprove patent quality and to imple-ment Congressional reforms.Internationally, the USPTO is taking abigger role, sending staff to places suchas China to share IP knowledge.

Lord Sainsbury, DTIYou might have expected to see AndrewGowers in this list. The former FinancialTimes editor was asked by the UK gov-ernment to prepare a report into IP strat-egy, which is due to be published beforeNovember this year. But Gowers isalready moving on to new things and itwill fall to others to digest and, if neces-sary, implement his report’s conclusions.Foremost among them will be LordSainsbury, the supermarket magnate whowas appointed as a minister with respon-sibility for science and innovation in1998. His work includes overseeing thePatent Office (where he has a strongworking relationship with chief executiveRon Marchant) and other IP services, andhe has won a lot of support among rightsowners in the UK for his work on amend-ments to the Enterprise Act, delivering onIP commitments and demonstrating agenuine interest in IP issues.

Lynne Beresford,USPTOWith so much attention being paid tothe role of patents in the US at the

moment, it is easy to overlook theimportant developments regardingtrade marks. With anti-dilution legisla-tion pending before Congress, contro-versy over Trademark Trial and AppealBoard rulings and USPTO applicationsback to record levels, trade mark pro-tection remains of vital importance tothe American economy. LynneBeresford, appointed USPTOCommissioner for Trademarks in 2005,is at the centre of many of these issues.She is well-qualified to head the teamof trade mark examiners, having start-ed as one herself back in 1979. Her pre-vious role in the Office of Legislationand International Affairs saw herinvolved in WIPO negotiations ontrade marks, designs and geographicalindications.

Erik Nooteboom, ECConsistently highly rated by IP practi-tioners, Erik Nooteboom is probably thekey figure in IP in Brussels. Just one ofhis many tasks is handling the consulta-tion on patent policy that may lead to aproposal for a Community patent. TheCommission is now considering the

www.managingip.comJuly/August 200636

COVER STORY: MIP 50

de Boer Campinos

Lamy

DudasIdris

written submissions made by business,campaigners and members of the public,and will hold a public hearing on July12. A veteran of debates over the com-puter-implemented inventions directive,Nooteboom will have no illusions aboutthe scale of the task facing him in devis-ing and securing agreement on aCommunity patent.

JamesSensenbrenner, HouseJudiciary CommitteeThe chair of the House judiciary com-mittee oversees the work of the judiciarysubcommittees, including that on courts,the internet and intellectual propertychaired by Lamar Smith. RepublicanJames Sensenbrenner has held the postsince 2001. He is a former attorney andtakes a close interest in, and a strongstance, on IP protection. For instance,during an official visit to Moscow inApril this year, he called for moreaggressive enforcement activities and thestrengthening of existing legislation inadvance of Russia’s application toaccede to the WTO, and he has made

similar demands of China in the past.Sensenbrenner, who is 63, has been aWisconsin Congressman since 1979.

Alfonso Campinos,INPIIt is rare for heads of national patent ortrade mark offices to win plaudits fromIP owners – but Alfonso Campinos ofPortugal’s INPI has managed to achievejust that. The Office has introduced anumber of online services and impressedusers with its efficiency and forward-thinking. Campinos also has an impor-tant role internationally as chair of theworking group on the legal developmentof the Madrid system at WIPO, whichwas formed in July last year. The work-ing group is looking at all aspects of theMadrid Agreement and Protocol, includ-ing the safeguard clause, the refusal peri-od, the language regime and model pro-visions on transformation. Another ques-tion that is likely to be raised is whetherit remains necessary to have two systemsoperating in parallel. Observers of thediscussions have been impressed withCampinos’s management, skill and effi-ciency in chairing them.

Tian Lipu, SIPOChina has passed through a series of IPlandmarks over the last 26 years. In1980 the State Council set up theChinese Patent Office (later renamed theState Intellectual Property Office) andfour years later China promulgated itsfirst patent law. Last year the officereceived almost half a million applica-tions for patents, utility models anddesigns, up more than a third on 2004.Tian Lipu, who assumed the role ofCommissioner last year, has witnessed allof these seismic changes first hand, start-ing his career as an examiner at theOffice’s inception. Observers praise hiscommitment to boosting cooperationwith both patent applicants and IPoffices overseas and his efforts to makeChina’s young patent system more trans-parent. He speaks candidly of the chal-lenges the country’s patent regime facesgiven the surge of applications, and isleading the Office during a critical timefor China’s IP system: SIPO is active inthe government’s efforts to formulate anational IP strategy and is working onthe third set of amendments to the patentlaw, which could be in force by 2008.

www.managingip.comJuly/August 2006 37

COVER STORY: MIP 50

Tian Gurry

Beresford

Nooteboom

MandelsonSainsbury

Sensenbrenner

L ast month, the European Unionbecame the latest state to adoptthe WTO Doha Declaration,when it introduced a Regulation

allowing for compulsory licensing ofpharmaceuticals for export to countriesin need.

The Regulation was adopted by theCouncil on April 28, published on June9 and entered into force on June 29.Once implemented by member states, itwill enable generic producers of drugs inthe EU to seek a licence to manufacturedrugs for export, without the authoriza-tion of the patent owner. The Regulationalso provides for a role for non-govern-mental and international organizationsto buy drugs or request them on behalfof an importing country.

The rapid implementation of therules follows the adoption at the WTOministerial meeting in Hong Kong of adecision to make permanent an amend-ment to the TRIPs Agreement agreed atDoha in 2001. The amendment allowsany WTO member to export drugsmade under compulsory licences to sup-ply developing countries that have nomanufacturing capacity of their own.Two-thirds of WTO members need toaccept the amendment for it to takeeffect: they are due to do this byDecember 1 2007.

Although the TRIPs amendment isoften seen as a victory for those whohave sought to prevent patent rightsfrom blocking access to drugs in poorcountries, many campaigners say it doesnot go far enough. Foremost among

these is Ellen t’Hoen, coordinator of theglobalization project for Médecins SansFrontières (MSF). T’Hoen has worked inthe area of drugs and health advocacysince 1981, after graduating from theSocial Work Academy and taking a mas-ters in law at the University ofAmsterdam.

She says: “The Doha Declaration hasopened a large number of doors. Manycountries are using it to import medi-cines and be a bit less concerned aboutpatents than before.” But she adds thatthe new rules allowing manufacturers ofgeneric drugs to apply to export theirproducts are too cumbersome and miredin red tape to be of real use to patients.So far, there have been no compulsorylicences for exports granted, eventhough a growing number of jurisdic-tions – including Canada, China, Indiaand Norway as well as the EU members– have changed their rules to allow it.

As a result, t’Hoen is not giving upher campaign. And she believes that thetrend towards bilateral agreementsbetween the US and developingcountries that demand a high-er level of IP protectionthan that provided byTRIPs risks underminingwhat has already beenachieved through theWTO. She told MIP:“Bilaterals are muchharder to fight. TheUS would never getaway with thesedemands at theWTO.” She arguesthat developing

countries are pressured into signingagreements that include so-called TRIPs-plus provisions on patent term and dataprotection: “There should be a morato-rium on provisions affecting the DohaDeclaration. I’ve yet to see a developingcountry that sees the benefits.”

She also believes that while progresshas been made in supplying generic ver-sions of first-line drugs, more must bedone to make sure patients can get thelatest products: “A very important prior-ity for us is to ease availability of genericcompetitors of newer medicines.”

T’Hoen and other campaigners whohave promoted compulsory licensing areviewed by some as trouble makers whowould destroy the basics of the IP sys-tem. But t’Hoen denies that is the case:“I don’t think patents are good or bad.Under certain conditions, they encour-age innovation. I have problems with

THE CAMPAIGNERCuring the worldCampaigners such asEllen t’Hoen have beensuccessful in their bid toallow compulsory licens-ing to provide cheapergeneric drugs to patientsin poor countries. But hasthis success come at theexpense of patent rights?

COVER STORY: MIP 50

www.managingip.comJuly/August 200638

COVER STORY: MIP 50

www.managingip.comJuly/August 2006 39

patents if they lead to exclusion,rationing or mean that only a few canafford the products.”

Rather than ending patent protec-tion, she argues, alternative means needto be found to incentivize research, espe-cially for conditions where the size ofthe market offers little benefit to pharmacompanies, such as sleeping sickness.She says: “Shouldn’t we have a largervariety of ways of financing develop-ment? We need a radically new way ofthinking about issues. Patents and highprices are not the sole mechanism forR&D.” T’Hoen would like to see con-sideration of other ways of fundingresearch, such as more governmentsponsorship, as well as patent poolingand even research trading as James Lovehas proposed. She says a new definitionof innovation is required: “Innovation isnot real innovation if you can’t deliverit. The definition includes delivery. TheDoha Declaration looked at access prob-lems. Now we need to look at delivery interms of R&D.”

To this end, MSF has been workingwith the World Health Organization,which set up the Commission onIntellectual Property Rights, Innovationand Public Health (CIPIH) in 2003. TheCommission published its report inApril this year; in May, the WHO’s gov-erning body, representing all 192 mem-ber states, agreed a resolution to look atnew incentives for research and reportback in two years’ time.

The CIPIH report stated that“because the market demand for diag-nostics, vaccines and medicines neededto address health problems mainly affect-ing developing countries is small anduncertain, the incentive effect of intellec-tual property rights may be limited ornon-existent”. It called for a global planof action to secure funding for develop-ing drugs and make them accessible.

But where would this leave the phar-maceutical industry? “I think they needto take a longer-term view,” sayst’Hoen. “If the innovation systemexcludes 90% of the population, theywill run into bigger problems. It’s in theindustry’s interest to engage in debate ina less defensive way than they have sofar.”

Herb Wamsley, IPOAs more and more patent cases windtheir way up to the Supreme Court, withthe potential to reshape US patent lawfundamentally, Herb Wamsley, wholeads the Intellectual Property Ownersassociation (IPO), has found himselfplaying an increasingly delicate balanc-ing act. The association represents IPowners from across a spectrum of indus-tries, from IT to biotech and heavyindustry to pharmaceuticals, each withtheir own particular IP interests in addi-tion to their common aim of securingstrong IP protection. That these compa-nies are increasingly likely to be pittedagainst each other as against meddlingpoliticians and troublesome counterfeit-ers makes Herb Wamsley’s job morechallenging than ever.

James Love, CPTechOne of the pharmaceutical industry’sbêtes noires, Consumer Project onTechnology director James Love is oneof the foremost opponents of the waythe drugs industry funds its research anddevelopment and protects potentiallylife-saving breakthroughs with monop-oly patent rights. But Love is not merelya critic of the existing system of IP rightsand their impact on the world’s poorand sick. The Harvard and Princeton-educated economist has also developedalternative proposals for the way thatpharmaceutical R&D should befinanced. Although they are dismissedby drugs companies as unworkable, inthe event of a global pandemic, the pub-lic and politicians may be more willingrethink how resources should be target-ed at preventing and treating diseases.

John Howkins,Adelphi Charter John Howkins is director of the com-mission that prepared the AdelphiCharter on Creativity, Innovation andIntellectual Property, a 450-word state-ment issued in October 2005 that seeksto set out the public interest impera-tives the authors believe should under-pin IP rules. A broadcast regulatoryspecialist and former chairman of theLondon Film School, Howkins gath-ered together a group to work on theproject, including academics, represen-tatives from the AustralianCompetition and Consumer

Commission and the Arts Council ofEngland, the Brazilian Minister ofCulture and John Sulston, who won theNobel prize for his work on humangenome sequencing. Together, theyhope the Charter will act as a clearstatement of public interest principlesagainst which governments shouldbenchmark their IP regimes.

Florian Müller, nosoftwarepatents.comSome proponents of patent protectionfor software might have hoped they hadseen the last of Florian Müller after thedemise of Europe’s computer-imple-mented inventions (CII) directive lastyear. But Müller, the German softwaredeveloper behind the website nosoft-warepatents.com, shows no sign ofgoing quietly. Indeed, the Federation fora Free Information Infrastructure, whichMüller works with, has expressed con-cerns over the European Commission’splans to discuss patent reform inEurope, and claims that a Communitypatent will lead to software patents bythe back door. If he can win half asmuch support in opposing theCommunity patent as he did opposingthe CII directive, Müller could upset theCommission’s plans.

Mike Kirk, AIPLA With so many US patent disputes mak-ing their way to the Supreme Court thisyear, the AIPLA has had a busy time.The association, which representsAmerican IP practitioners, has filedamici briefs in a series of cases includingMetabolite, eBay, Illinois Tool Works,Integra Lifesciences and Grokster. Andas US politicians tackle important issuesabout the USPTO’s strategic plan andpatent reform, the AIPLA has beenseeking to inform and persuade, fre-quently delivering testimony toCongress and sending reports to thegovernment. One of the best-known fig-ures in IP, AIPLA executive directorMike Kirk has a key role at this influen-tial organization.

Bob Armitage, EliLillyArmitage is increasingly viewed as theleading voice of the drugs industry indebates over the direction of US patent

More campaigners...

reform. Many of the issues at stake,from injunctions to the best moderequirement, are pitting the IT industryagainst manufacturing industries, andArmitage is highly regarded for his com-mitment to defending big pharma’sinterests. A regular speaker and delegate

at the leading IP conferences and beforeCongressional committees, Armitagehas played leading roles in groups suchas the American Intellectual PropertyLaw Association (AIPLA), theAssociation of Corporate PatentCounsel (ACPC), the Patent Committee

of the Pharmaceutical Research andManufacturers of America (PhRMA),the National Council of IntellectualProperty Law Associations (NCIPLA)and the Intellectual Property Committeeof the National Association ofManufacturers (NAM).

COVER STORY: MIP 50

www.managingip.comJuly/August 200640

Kirk

Müller Love

Armitage

Howkins

Wamsley

>>> IPO Annual Meeting, Chicago, US. September 10-12.

Details from www.ipo.org

>>> LES US/Canada Annual Meeting, New York, US, September 9-14. Details from www.lesi.org

>>> MARQUES Annual Conference, Malta, September 12-15. Details from www.marques.org

>>> PTMG Annual Meeting, PTMG Annual Meeting, Boston, US, October 4-7.

>>> AIPPI 40th Congress, Gothenburg, Sweden, October 8-12. Details from www.aippi.org

>>> AIPLA Annual Meeting, Washington DC, US, October 19-21. Details from www.aipla.org

>>> APAA General Assembly Meeting, Kaohsiung, Taiwan, November 4-8.Details from www.apaaonline.org

>>> INTA Leadership Meeting, Phoenix, November 8-11. Details from www.inta.org

Forthcoming events

W hen it comes to debates over aEuropean Community patent,Thierry Sueur has seen it allbefore. But two years after the

last attempt to create an EU-wide singlepatent collapsed in failure as memberstates squabbled over translation issues,French industrial gas group Air Liquide’svice-president of IP is ready to take upthe battle once more. As an advocate ofchanges that make securing IP rightscheaper and simpler for IP owners bycutting the cumbersome requirements totranslate the patent application into anumber of European languages, Sueurwill back the new attempt to reduce thecost of patenting. But this time around,he will urge the Commission to take astep-by-step approach.

“I am 100% in favour of aCommunity patent, but I also witnessedthe negotiations that took place earlier,”he says. Now he thinks politiciansshould first focus on implementing theLondon Agreement. The October 2000Agreement was designed to reduce thenumber of translations IP owners mustprepare when filing patents acrossEurope but has still not come into forcebecause the French have yet to sign up tothe deal. Once this language hurdle hasbeen overcome, politicians should set upa specialist patent court that would slotinto Europe’s existing judicial frame-work, says Sueur. Only after these issues

have been resolved does he believe thatdecision makers will be persuaded of thebenefits of a single Community patent.“It’s realpolitik, but probably the onlychance we have of getting it is to getthere step by step,” he says.

As vice-chair of the European businesslobbyists UNICE’s patent group and chairof the French Industry Federation’s IPcommittee, Sueur has done much to nar-row the divisions between business lead-ers and IP owners who want to see greaterharmonization of patent application pro-cedures and those national politicians andpatent attorneys who see attempts toreduce the burden of translation require-ments as an attack on their independenceand revenue streams. Sueur’s compatriotsin the French government – which mustratify the London Agreement before it cancome into force – could be on the verge ofaccepting the deal, he says. “We havedone some work. There has been exten-sive lobbying. Sometimes I have the feel-ing I spend half my life on it.” Debatesin the French parliament in Februaryculminated in two reports last monthfrom politicians recommending thegovernment back the Agreement.“It is fantastic. We couldn’t believeit,” he says. “The atmosphere[now] is completely different.”Of course, Sueur will be happierstill if and when the French gov-ernment finally inks the deal.

The effort to create aCommunity patent is just one ofthe IP issues Sueur has taken up onbehalf of his colleagues in industry.In his lobbying capacity, he hasattended scores of meetings withthe aim of encouraging politiciansand IP officials to make life easier forinnovators – and, he insists, society as awhole – by lowering costs, harmonizingrules and formulating long-term pro-IPpolicies. Sueur finds Europe’s ad-hoc approach to IP policymaking particularlyfrustrating.“I would

like the EU to realize that we need a realEU IP policy,” he says. “We have not seenanything like this so far. As long as wedon’t have one it prevents people from see-ing the bigger picture on IP issues.”

He compares policy reform inEurope unfavourably with that in theUS, where he says reports by bodiessuch as the Federal Trade Commissionand the National Academies whichdemonstrated the economic benefits ofa strong system of IP protection to thecountry helped politicians understandhow IP rights could boost innovationand job creation. “To avoid the contro-versies that we have seen in Europe overIP – in areas such as biotech and soft-ware, for example – there needs to bebetter explanation to parliament andother stakeholders so that they can seewhy an IP policy is good for the econo-my and society as a whole. Many MEPs

THE INNOVATOREurope revisits patent debatePrevious attempts to makepatent protection inEurope cheaper and sim-pler have failed in the faceof political opposition.Thierry Sueur of AirLiquide, who has been inthe front line of negotia-tions between industryand policymakers, hopesthe latest attempt mayturn out differently

COVER STORY: MIP 50

www.managingip.comJuly/August 200642

I have spoken to don’t understand whatIP is for.”

Sueur’s interests are not confined toEurope. He is working with his counter-parts in Japanese and US industry groupsto find ways of further harmonizing theglobal patent system. But he complainsabout the lack of progress towards con-vergence and is frustrated by blockingtactics adopted by some countries atWIPO. “Many developing countrieshave issues that they want to beaddressed – such as traditional knowl-edge. And this is legitimate, in my view.We should deliver on promises to resolvethese issues. But to get what they want,they are almost holding developed coun-tries hostage. This is not acceptable.”

UNICE had earlier hatched a planwith colleagues in the US IntellectualProperty Owners association, theAmerican Intellectual Property LawAssociation and the Japan IntellectualProperty Association to discuss optionsfor global patent reform. These propos-als for change would then be presentedto national governments at WIPO. Butthose plans have since been revised.“Now WIPO is effectively blocked.Instead, we are wondering whether toadvocate an agreement [for greater har-monization] between a limited numberof countries,” says Sueur. Last year thegroup met representatives of the US,European and Japanese patent offices atthe trilateral meeting in Munich. Thisyear they will lobby again for greaterconvergence, even if only between a fewkey jurisdictions, when the trilateraloffices meet in Tokyo in November.

On top of his advocacy and campaign-ing work, Sueur has a full time job at AirLiquide to hold down. “My IP role takesabout 30% of my time and then I amobliged to work twice as hard in the restof my job!” he says. And he urges otherEuropean IP owners to get more involvedin the debates over the future of IP policy.“We often complain about politicians butwhen it comes to companies in Europe,very few understand that if they want suc-cess in IP issues, then they have to makepeople available. Companies like BASF,AstraZeneca and Philips are good, but it isvery limited. We need to realise that wehave to do some homework too.”

Sergey Brin and LarryPage, GoogleNo follower of IP developments canescape Google. It is one of the world’smost valuable brands, built on innova-tive technology and enjoying great cus-tomer loyalty. But how will it protectthat brand against genericization? Will itcope with the loss of the Gmail brand inEurope after another company claimedtrade mark rights? What will happenabout keyword advertising? Potentiallymore interesting than any of these ques-tions is what will happen to GoogleBook Search, the company’s ambitiousattempt to put the contents of theworld’s libraries online to be searched byanyone. The project has alreadyincurred the wrath of the Authors Guildas well as publishers worldwide. Googleis pressing on with the launch, andargues it is not breaking any laws, but itsclaims will surely be tested in courtbefore long. In a year’s time, willGoogle’s founders, internet pin ups Brinand Page, be viewed as the IP owner’sfriends or enemies?

Todd Dickinson, GEOne of the few ever-presents on theMIP 50 list, Todd Dickinson now occu-pies one of the most prestigious roles inIP in the US. As chief IP counsel andcorporate vice president for GE,Dickinson heads a team that managessome 20,000 trade marks and filesnearly 1,500 patents each year, indiverse industries such as jet engines,power generation, financial services,medical imaging, biotechnology andmovies. The high-profile role meansDickinson, a former USPTO director, isin constant demand as a speaker andadviser on IP, and he recently took parton hearings on the future of the USpatent system in Washington. Would aDemocrat victory in the 2008Presidential election see a return tofront-line politics for the Pennsylvania-born lawyer?

Tove Graulund, ArlaFoodsMARQUES, the organization of trademark owners chaired by Arla Foods’Tove Graulund, has been increasinglyactive in promoting rights’ ownersinterests in Europe – with striking

results. EU membership of the MadridProtocol and the reduction in fees forapplication and renewal of Communitytrade marks and designs are two of theissues that MARQUES has called for –and got. Further initiatives that theassociation has worked on include thecreation of a database of informationon geographical indications and theestablishment of a regular meeting ofrepresentatives of European nationaltrade mark offices. While many trademark counsel from European and othercompanies work on these projects,Graulund has led the organization since2001 and takes an active leadershiprole.

Nathan Myhrvold,Intellectual VenturesMyhrvold is the patent troll’s patenttroll. Formerly chief strategist and chieftechnology officer for Microsoft, wherehe worked for 14 years, the formerpostdoctoral fellow of CambridgeUniversity (he worked with StephenHawking) is now CEO of IntellectualVentures. The company develops,selects and exploits inventions acrosstechnologies providing patent ownerswith an opportunity to earn royaltiesfor their inventions. Famed for itsbrainstorming sessions with scientists,Intellectual Ventures – which Myhrvoldfounded with inventor Edward Jungand former Intel executive Peter Detkinin 2000 – is leading the revolution thatwill transform the business of patents inthe US.

Gerhard Bauer,DaimlerChryslerGerhard Bauer is chief trade mark coun-sel for DaimlerChrysler in Stuttgart, aposition he has held since the merger ofthe two car makers in 1998. He isresponsible for the company’s trademarks, design patents, domain namesand IP contracts. Its assets include thefamous brands Mercedes and Chryslerand their logos. He is a prominentspeaker on IP topics, and has lately beendevoting particular attention to the pro-tection of designs and spare parts inEurope. A member of the INTA Board,Bauer will be closely involved with theAssociation later this year as it expandsits activities in Europe by setting up aBrussels office.

COVER STORY: MIP 50

www.managingip.comJuly/August 2006 43

More innovators...

Michael Douglas andCatherine Zeta-JonesAdding a touch of glamour to the MIP50 list are movie stars Michael Douglasand Catherine Zeta-Jones, who will bestarring in Hello v OK: the sequel in theUK’s House of Lords this November.Eighteen months after the couple won aCourt of Appeal ruling over the publica-tion of photos taken at their privatewedding, but were awarded paltry dam-ages, the case is returning to the courts.It will give the Law Lords anotheropportunity to discuss the right to priva-cy in the UK, following their ruling infavour of model Naomi Campbell in2004. Who knows, the glamorous cou-ple might even make another appear-ance in court themselves to liven up thewigs and gowns.

Jack Chang, GEThe Quality Brands ProtectionCommittee is an influential associationof IP owners in China who have lobbiedhard for the government to take their IPconcerns more seriously. In the six yearssince the organization was set up it hasrecruited 145 brand owners and devel-

oped influence with some high-level gov-ernment contacts. Two years agoChina’s IP tsar and vice premier Wu Yidescribed the QBPC as her “capableright hand assistant”. Jack Chang hasbeen committed to the group and itsaims from the outset – he was a found-ing member and served as chair of itslegal committee and vice chair beforetaking over the chairmanship in 2003.Chang is able to speak on IP issues inChina with authority: he was the China-based assistant general counsel ofJohnson & Johnson before he moved toGE Corporate in February. He is nowthe US company’s senior IP counsel forAsia.

Richard Heath,UnileverA key figure in the fight against piracyworldwide, Richard Heath, generaltrade mark counsel at Anglo-Dutch con-sumer goods and healthcare companyUnilever, was recently given the addi-tional title of global anti-counterfeitingcounsel. He is also secretary to theBoard of INTA, where he focuses onanti-counterfeiting issues, and has beeninvolved in the Global Business Leaders

Alliance Against Counterfeiting(GBLAAC) since its formation. TheAlliance brings together executives fromdiverse industries to campaign for poli-cies to reduce counterfeiting worldwide.

Marshall Phelps,MicrosoftBill Gates may be bowing out and devot-ing his time and money to charitablecauses, but Microsoft continues to seeknew businesses and partnerships.Central to its strategy are IP rights: it hasupped its filing programme and recentlyreceived its 3,000th US patent, but hasalso been on the receiving end ofinfringement lawsuits – one of which inTexas awarded $133 million against thecompany earlier this year. Meanwhile,the company has continued to developits licensing and cross-licensing strategy,and is building its corporate IP venturesprogramme to earn revenue fromunused innovations. Marshall Phelps,who formerly headed IBM’s technologylicensing programme, where he helped itto earn $1 billion a year, joinedMicrosoft as corporate vice presidentand deputy general counsel in 2003 atthe particular request of Gates. He is

COVER STORY: MIP 50

www.managingip.comJuly/August 200644

Dickinson

Graulund Reidl Leathes

Douglas and Zeta-Jones

© R

eute

rs P

hoto

grap

her/R

eute

rs

Nichols

Phelps

now in charge of all IP matters at thecomputer software company. He alsoencourages other technology companiesto raise IP issues with policy makers,and testified before Congress on patentharmonization last year.

Paul Reidl, E&J GalloWineryThis year’s INTA president is overseeinga period of growth and renewal for theworld’s largest organization of trademark practitioners. The Association thisyear implemented its plan for the nextfour years with four strategic directions:internationalization; policy, developmentand advocacy; education, informationand services; and association, gover-nance, membership and participation. Itwill open a representative office inBrussels, its first in Europe, before theend of this year, and anti-counterfeitingis another priority. Meanwhile, INTAcontinues to be at the forefront of effortsto revise the US anti-dilution laws. Asassociate general counsel at E&J GalloWinery, Reidl is in charge of protectingIP rights for the world’s second-largestproducer and distributor of wine,sparkling wine, brandy and coolers.

The patent trollYou might have hoped you had seen thelast of patent trolls, after the SupremeCourt’s eBay decision in May. But theprofile of trolls – companies who ownpatents, but don’t work them andinstead sue those who they believe havedeveloped successful products fromthem – will only get higher. Executives inthe electronics, software and financialservices industries are increasingly wor-ried about the cost of dealing with trolls,and the perceived threat they pose isbeing addressed at the highest levels,including the Supreme Court andCongress. You certainly haven’t seen orheard the last of them yet.

Lucy Nichols, NokiaLucy Nichols spearheads Nokia’senforcement and anti-counterfeitingefforts, which have borne fruit this yearin various ways. In Europe, the compa-ny terminated its contract with its mainUK distributor after an audit confirmedsuspicions that they were importingcounterfeit or grey market goods. In theUS, Nokia successfully sued animporter of fake phone parts fromColombia in Florida. And, just last

month, the company sued two Chineseentities accusing them of copying thedesign of its mobile phones. A graduateof Georgetown University Law Center,Nichols is also closely involved withinternet issues: Nokia is a supporter ofthe new .mobi top-level domain andshe serves on ICANN’s NominatingCommittee.

Michael Leathes,BATMarkMichael Leathes is head of IP for one ofthe world’s biggest brand owners, tobac-co company British American Tobacco.The group he heads was this year recog-nized as the in-house IP team of the yearat the MIP Awards. An advocate ofmediation and arbitration for solvingdisputes over trade marks, he has imple-mented an ADR policy that the compa-ny uses in preference to litigation when-ever it can. Working with colleaguesfrom car company Ford, he inspired anIP management system that was spun offto become a company called Anaqua.Together with lieutenant Toe-Su Aung,Leathes is also addressing the regulatorythreat to trade mark rights in the tobac-co industry and others.

COVER STORY: MIP 50

www.managingip.comJuly/August 2006 45

Bauer Myhrvold

Chang Troll

Page (left) and Brin

© K

imbe

rly W

hite

/Reu

ters

Heath

D ora Akunyili, director generalof the Nigerian NationalAgency for Food, DrugAdministration and Control

(NAFDAC), has been shot at, attacked,seen her office burned down, her labo-ratories vandalised and had her housebroken into. She has been intimidated,harassed and blackmailed and her staffhave been beaten up. Just last month,in an investigation at a market, herinvestigators and police were attackedand six cars were destroyed. But noneof this has stopped her fight againstcounterfeit drugs.

Her worst day came on December 262003. Driving near her village, she wasshot at from another car. A nearby busdriver was killed, and she narrowly sur-vived: “The bullet scraped my back andburned my scalp like a hot water bot-tle.” The gunmen were later brought totrial and proven to have links with drugcounterfeiters.

Since her appointment to NAFDACin 2001, Akunyili – who has a PhD inpharmacology and still supervises grad-uate students at the College of Medicine– has tackled the threat of counterfeitdrugs head on. When she started, about80% of drugs in the market were fake,companies such as Boehringer, Merckand Sandoz had all withdrawn from thecountry, and local manufacturers wereclosing down because they could nolonger compete. Worse, she says, thecounterfeits were causing illness and dis-ease: “People were dying like rats. Myown sister died thanks to counterfeitinsulin and that hit me. All families inNigeria have experienced the effects ofcounterfeits.”

Akunyili was appointed by PresidentOlusegun Obasanjo after developing aname for her honesty: in 1999, she wasgiven £12,000 by her then employer forsurgery in London, but when the sur-gery proved unnecessary she returnedthe money to the chief executive. Hetold her: “I did not know there wereNigerians with integrity.” Her reputa-tion spread and one Sunday, out of theblue, she had a phone call from thepresident who said he wanted someoneto clean up NAFDAC, the agencywhich regulates and controls theimport, sale and advertising of alldrugs, cosmetics, medical devices,processed food and drinks for Nigeria’s131 million people. After initial confu-sion (“I thought it was a con-man”) shewent to a meeting the followingTuesday and was given the job, eventhough “some ministers and politicianswere very much against mebecause they wanted theirown people”. Like manyof the counterfeiters shefights, she comes fromthe Igbo tribe.

Today, the pira-cy rate for phar-maceuticals hascome down to10%, a figurethat Akunyilisays is “stillunacceptable”.Although shesays the cam-paign has “suc-ceeded much

more than we ever expected,” she thinksit is “realistic” to reduce the rate to sin-gle figures. The death rate in hospitalshas fallen, multinationals are returningand 24 new drugs manufacturing outfitshave been established. In the four-and-a-half years to September 2005, N10 bil-lion ($80.5 million) worth of fake drugsand substandard products weredestroyed and some 50 people convictedof fake drugs-related crimes in court.And, says Akunyili, the counterfeitersare on the run: “The hunter has becomethe hunted.”

NAFDAC’s extraordinary successin challenging the counterfeiting prob-lem has come about more throughdetermination and patience thanthrough spectacular ideas.“Knowledge of the problem is half thesolution,” says Akunyili, who intro-duced a NAFDAC number for all

THE ENFORCERA life or death struggleDora Akunyili’s battleagainst counterfeit foodand medicines in Nigeria isremoving dangerous fakesand saving lives. Althoughthe struggle has nearlycost her own life, she isdetermined to fight on

COVER STORY: MIP 50

www.managingip.comJuly/August 200646

COVER STORY: MIP 50

www.managingip.comJuly/August 2006 47

drugs and food products so that con-sumers know they are buying anauthentic product. Advertisingencourages them to check the numberand expiry date. This simple measuresaw the number of products without aNAFDAC number drop by 80%between 2002 and 2004.

The Agency has also focused on stop-ping counterfeits coming into the coun-try. Since many come from India andChina, the Agency now analyzes goodsin those countries before they areexported. It works with importers andbanks, and staff go to markets to buysamples and test them. NAFDAC alsoundertakes systematic surveillance at allentry points to the country. Factoriesproducing drugs must be certified; mar-ket stalls are subject to inspection;hawkers on buses will be thrown off.Bakeries have been closed down forusing potassium bromate as a breadimprover while makers of fake vegetableoil and packaged water have been raid-ed. Above all, Akunyili has made it clearthat she will not tolerate any corruptionwithin NAFDAC.

NAFDAC’s achievements have alsobrought personal recognition forAkunyili: last year she was the solerecipient of the Grassroot HumanRights Campaigner Award from theHuman Rights Defence organization inLondon and was also presented with the2005 industrial award by theInternational Pharmaceutical Federationin Cairo, Egypt. Her CV lists a further260 awards and recognitions given toher in Nigeria and overseas.

NAFDAC’s work demonstrates howdeveloping countries can tackle counter-feiters. But, says Akunyili, further workneeds to be done. In particular, the lawneeds to be strengthened as drugs coun-terfeiting remains more attractive tocriminals than gun running or cocainedealing. Recent efforts have also focusedon addressing the problem throughoutthe west Africa region: many counter-feiters who were driven out of Nigeriainitially fled to Congo. A forum of westAfrican drugs authorities was held inAbuja three months ago to ensure that“counterfeiters will not find a safe havenanywhere”.

Chief Justice JohnRoberts, US SupremeCourtThe US Supreme Court is taking anunusual interest in patent law. It recent-ly ruled in the closely watched eBaycase and (after hearing arguments)decided not to issue an opinion inanother case on patentable subject mat-ter, Metabolite. Next term it has agreedto look at the patent owner/licenseerelationship in MedImmune and thestandard applied to obviousness inKSR. Why the big interest in patents? Isit a ticking-off for the Federal Circuit, areflection of public concern about thescope of patents, or an attempt to han-dle some of the policy problems that theUSPTO and Congress are also address-ing? Or, alternatively, does it reflect apersonal interest of new chief justice,John Roberts? Roberts, sworn in lastSeptember, is a former litigator, who hasargued IP cases as a lawyer and sat in IPdisputes as a judge. The US’s 17th chiefjustice has not revealed much about hisviews on patents yet (he wrote a conser-vative concurring opinion in eBay andsat out of Metabolite due to a conflict)but if there really are, as some suspect,ideological splits within the Courtregarding the role of patents in theeconomy then his role could becomecrucial.

Wu Yi, Chinese vice-premierChinese vice-premier Wu Yi has a formi-dable reputation as a negotiator and apolitical fixer: she was called in to takeover the handling the country’s SARScrisis in 2003 and put in charge of IPissues – one of the most sensitive andhigh profile concerns repeatedly raisedby China’s trading partners frustrated byhigh levels of piracy and counterfeitingthere. Last year Wu co-chaired the 17thUS-China Joint Commission onCommerce and Trade with Secretary ofCommerce Carlos Gutierrez and USTrade Representative Robert Portman.She later joked to reporters that theyhad to go easy on her as both the onlywoman and the only Chinese at thepodium but, in reality, the US team hadmore than met its match. Under Wu’sleadership, the government has pub-lished long lists of policy reforms itplans to undertake to tackle IP breaches

and, perhaps more importantly forChina’s long-term economic growth,spearheaded a cross-departmental taskforce to formulate a national IP strategy.The group’s report is due to be pub-lished later this year and observers arekeen to see how its recommendationswill be implemented.

Paul Maier, OHIMAn OHIM insider since 1995, PaulMaier was earlier this year appointedas president of the Boards of Appeals.Amid the success story of OHIM,which celebrated its 10th anniversarythis year, the Boards of Appeal havebeen something of a blind spot, theresult of a big backlog, inconsistencyand some heavily criticized decisions –such as that accepting the smell offreshly cut grass as a Community trademark for tennis balls. Maier’s job is tobring some more credibility to theBoards and to oversee the new enlargedBoard, which handles cases that areparticularly complicated or cover issueswhere the Boards have diverged. Apopular figure, Maier previouslypresided over the launch of theCommunity design and worked onenlargement issues when the EUexpanded in 2004. But is he up to thechallenge of sorting out the Boards?

ChristopheZimmerman, WCOAnyone who has ever attended a talk byChristophe Zimmerman will rememberit vividly. The Frenchman – who former-ly worked at the European Commissionbut now heads the IP enforcementefforts for the World CustomsOrganization (WCO) – brings a passionto the subject of anti-counterfeiting thatfew can rival. Armed with samples ofseized goods and anecdotes from life atthe front line, he presents a compellingpicture of the scale of international pira-cy. His new role at the WCO encom-passes training, raising awareness ofissues such as the link between piracyand organized crime, giving technicaladvice and encouraging harmonization.While at the EU, he steered through thenew EU Customs Regulation in the faceof political difficulties. He has beencalled a “fanatic” who “lives the job”and would, if necessary, stay at hisCustoms post for weeks on end.

More enforcers...

Chris Israel,Department ofCommerceThe US government’s decision to cre-ate a new post of IP enforcement coor-dinator says much about both thescale of the infringement problemaffecting US industry and the Bushadministration’s determination to dosomething about it. Chris Israel, whotook up the role one year ago, has thejob of ensuring departments across thegovernment develop and implementcoordinated policies to tackle IP viola-tions. With IP coming under the remitof agencies and departments as dis-

parate as the Department ofCommerce, the Department ofHomeland Security, the Department ofJustice, the US Trade Representative,and the Department of State, the newpost should lead to more joined-upgovernment. Israel has already taken aleading role in the anti-counterfeitingSTOP initiative and is well-respectedby US business groups.

Bo Vesterdorf, CFIThe future of Microsoft’s business inEurope may be in the hands of theCourt of First Instance in Luxembourg,which is headed by Danish judge BoVesterdorf. The court heard the

American company’s appeal against a!500 million European Commissionfine in April this year, and will rule onwhether the fine is legal sometime inthe next 12 months. The Commissionclaims that Microsoft’s bundling of itsMedia Player with the Windows oper-ating system and its refusal to reveal itssource code breach competition rules.Although this is probably the biggestcase the 25-member Court has han-dled, it also has a daily involvement inIP law by hearing appeals onCommunity trade mark and designcases from OHIM. The Microsoft deci-sion may turn out to be Vesterdorf’sswansong: his term as presidentexpires in 2007.

www.managingip.comJuly/August 200648

COVER STORY: MIP 50

Wu

Zimmerman

Roberts

Israel Maier

Vesterdorf

O n May 27, Zheng Chengsi gavea lecture to the ChineseCommunist Party CentralCommittee’s Politburo on the

need for China to develop and protectintellectual property. Speaking along-side Wu Handong of the IP RightsResearch Centre, he outlined his visionfor IP in China. Interviewed by MIPafter the lecture, Zheng summarized hismessage to China’s political leaders:“China cannot be a big factory for theworld forever. At the moment we haveno technology, only manpower.”Innovation, he argues, has been neglect-ed outside private enterprise and thereis inadequate support for the conceptfrom society as a whole.

Zheng is a professor at the LawInstitute of the Chinese Academy of

Social Sciences, the country’s leadingthink-tank, part-time professor atBeijing University and a member of theNational People’s Congress. He hashelped draft much of the country’s IP

legislation. Although he has deliveredhundreds of lectures in his career, he wasclear about the importance of this one:“I must tell the leaders of our countrywhy we should protect IP. It’s a very dif-ficult task. Most of the leaders thereunderstand now what I mean and agreewith me.”

So it would seem, judging by com-ments made by China’s President HuJintao following the meeting. Hu wasreported as stressing the urgent need tostrengthen the establishment of China’sIP system, pointing out the linksbetween strong IP protection, competi-tiveness, and economic and social devel-opment. He also emphasized the need tocrack down on IP violations and raiseawareness of IP rights.

Zheng’s message is that Chinese com-panies must understand and create theirown IP rights if intellectual property –domestic or foreign-owned – is tobe respected in the country. Hesays the majority of compa-nies have not yet realizedthis: “95% of Chinesecompanies have no trademarks; they only man-ufacture and pro-duce.” But he is opti-mistic that thingswill soon be differ-ent. “This year thingswill change. [Chinesetelecoms company]

Huawei said you must use legal copy-righted software. That means other peo-ple who sell pirated software will haveno market.”

These changes coincide with thework of a group given the task of for-mulating China’s national IP strategy.The group, headed by vice-premier WuYi and representing more than a dozendifferent government departments andagencies, was formed at the beginning oflast year to coordinate national IP poli-cy. In March this year, the NationalWorking Group for IPR Protection pub-lished details of the 2006 IP action plan,including a proposed review of a judicialinterpretation issued at the end of 2004that was designed to make it easier tosend people to jail for IP infringements.The plan will interpret some of theissues that have proved controversialsince it took effect, including the way

THE STRATEGISTFrom factory to laboratoryChina can beat piracy bypromoting the benefits ofIP protection, says ZhengChengsi, the country’sleading IP academic. Nowhe is focusing on takingthat message to the veryhighest levels of govern-ment

COVER STORY: MIP 50

www.managingip.comJuly/August 200650

“China cannot be a big factory for the world forever. At themoment we have no technology,only manpower”

that the police calculate the infringers’illegal turnover to determine whetherthe infringement meets the criminalthreshold.

The group will also study the rulesgoverning disputes between trade markowners and business name owners, andhost a China IPR Criminal ProtectionForum in 2006, as well as working withthe courts to provide more statistics andboost cooperation between administra-tive officials and criminal law enforce-ment agencies. The Patent Office willamend and publish its examinationguidelines, and translate them intoEnglish.

Important though these goals are,raising awareness and developingstrategies will not address the concernsof many rights owners, who want to seeimmediate action on enforcement.Zheng blames the judiciary for many ofthe problems: “Courts should raise thelevel of IP judges. Judges need to knowwhat IP means. I suggest letting them goif they are not qualified as a judge.”Above all, he says, courts do not offeradequate damages in infringementcases.

He cites the example of a Chineseentrepreneur, Song Zhenghuan, theowner of the Hao Haizi (“GoodBaby”) company based in Jiangsuprovince, which makes baby pramsand, according to Forbes magazine,has 28% of the US market. When Songsued for patent infringement in the US,he won the case and was awarded $4million in damages. But, despite win-ning 14 separate cases in the Chinesecourts and being awarded a total ofRmb15 million ($1.88 million) “he hasin fact not got a single penny,” saysZheng.

Zheng, a prolific author of books onsubjects such as technology transfer,believes part of the blame lies withChina’s civil law scholars: “Theyalways think more of the infringer. Veryfew of them think of the rights own-ers.” He says it is necessary to arguewith them to get things changed: “Mymain task is to push my students todebate in academic journals with civillaw scholars. The first thing is to pro-tect rights owners.”

Damon Matteo, PARCNow vice president of intellectual capi-tal management at the Palo AltoResearch Center (PARC), DamonMatteo formerly led Hewlett-Packard’sIP licensing programme and is recog-nized as a leader in managing intellectu-al assets. PARC, a subsidiary of Xerox,creates and commercializes inventions inphysical, computational and social sci-ences developed by its team of some 170researchers. It can claim credit for inven-tions ranging from the graphical userinterface to laser printers and Ethernet,and has spun out more than a dozencompanies. Matteo’s work covers all ofPARC’s IP operations and he is knownas an evangelist for extracting valuefrom IP rights.

Joseph Straus, MaxPlanck InstituteOne of the most prominent IP academ-ics in Europe, Joseph Straus is directorof the Max Planck Institute forIntellectual Property, Competition andTax Law in Munich and chairman ofthe managing board of the MunichIntellectual Property Law Centre as wellas being a professor or visiting profes-sor at numerous universities. He hasworked at the Max Planck Institutesince 1977 where he focuses on patentlaw, biotech inventions, employees’inventions and international IP protec-tion. His expertise is in demand bymany international institutions and hehas been a consultant to the OECD,World Bank and the EuropeanCommission, among others. He alsoadvises the EPO and WIPO and writesand speaks on subjects including DNApatenting, the impact of TRIPs and theEuropean patent system.

Alison BrimelowAlison Brimelow, formerly head of theUK Patent Office, has been away fromthe IP front line for a couple of years.But in June 2007 she will take over fromAlain Pompidou as president of theEuropean Patent Office. Before then,you can expect to see a lot more of her,as she holds a series of meetings withEPO users, considers policy issues andhones her objectives for her time in thehigh-profile role. It is a safe bet thatpatent owners will call on her to dowhat she can to implement the London

Agreement to reduce translation costs aswell as push forward the EuropeanPatent Litigation Protocol – two goalsthat have (so far) eluded Pompidou.

Hisamitsu Arai, IPHeadquartersAs the secretary-general of the secre-tariat of Japan’s Intellectual PropertyStrategy Headquarters, Hisamitsu Araiis at the forefront of the government’sefforts to push IP up the country’s eco-nomic and political agenda. He is well-qualified for the role: he is a formerCommissioner of the Japan PatentOffice and a member of the PolicyAdvisory Committee of the WIPO.Prime Minister Koizumi set up theheadquarters a year after his 2002 dec-laration that Japan should become an“IP nation” and its role is to oversee aseries of IP policy reforms in a coordi-nated way. Arai is the author of twobooks – Intellectual Property Policiesfor the Twenty-first Century and TheIntellectual Property-Conscious Nation–Mapping the Path From Developingto Developed – which encapsulate hispolicy interests.

Ulf Petrusson, CIPGothenburg’s Center for IntellectualProperty Studies (CIP) is an unusualinstitution that draws on IP expertise inmanagement, economics, law and tech-nology. As such, it bridges gapsbetween legal discussion and businesspractice and promotes effective IP man-agement. The Center provides educa-tion and research opportunities for stu-dents and businesspeople from manywalks of life, and hosts a biannual con-ference – the next one is May 2007 –which regularly attracts speakers fromthe world’s leading IP-rich companies.Ulf Petrusson, director of CIP and asso-ciate professor in legal science atGöteborg University, has headed theCentre since its foundation in 2000.

RA Mashelkar, CISROf all developing countries, India hasseen the most lively discussions about theproper role and scope of IP protection.Distinguished scientist Ragunath AnandMashelkar has been at the centre ofmany of these debates, as director gener-al of India’s leading research institution,

COVER STORY: MIP 50

www.managingip.comJuly/August 2006 51

More strategists...

the Council for Scientific and IndustrialResearch. From drugs patents to accessto medicines to the protection of tradi-tional knowledge, he has consideredmany of the IP questions that affect both

the developed and developing world –and in some respects he has a foot inboth camps. He is vice-chair of theWorld Health Organization’sCommission on IP and Health, which

published its long-awaited report inApril, was also part of the UK’s IP RightsCommission and has advised India’sprime minister and Cabinet on sciencepolicy.

COVER STORY: MIP 50

www.managingip.comJuly/August 200652

Straus Matteo

Petrusson

Brimelow

Arai

Mashelkar