Luxembourg: The Future Of IP: Top 10 Changes To Expect In The Next Decade

Last Updated: 30 August 2019
Article by Cary Levitt

Remarkable technological and cultural transformations have impacted Intellectual Property rights management during the past 25 years and many experts agree, IP legal practices are not keeping up with today's technologies. Examining how the industry will adapt over the next decade, ten key changes will have a significant influence on IP practices. 

1. Global vs. National IP

During the last 50 years, policies and treaties have focused on global, rather than national IP protection. The Madrid Protocol, ICANN's UDRP process, WIPO's Patent Cooperation Treaty, and the European Union's Intellectual Property Directives, are just a few examples. They all aim to facilitate the global protection of Intellectual Property rights (IPRs) in a world where businesses are not constrained by national borders, but global protection is hampered by high costs and uncertainty. For IPR holders, this raises potential risks. 

Stronger IP protection will help to develop the global economy and increase international cooperation among nations. In this context, owners of IP rights will have to plan for global protection. However, global protection brings additional expenses. There are significant risks of out-pricing smaller businesses and individuals from obtaining full protection of their IPRs.

In addition, global protection is complex and uncertain. International IP treaties don't cover everything and in cases like the TRIPS agreement, will barely bring harmonization to national laws. Lucas Osborn, in the Campbell University Law Review, notes "TRIPS brings some harmonization, but it does not bring uniformity. This leaves additional room for uncertainty, but perhaps the benefits outweigh the costs. Suffice to say that the tension between certainty and flexibility will exist for some time to come."    

2. Data-driven IP

The development of artificial intelligence (AI) will improve IP practices during the next decade by assessing the value of IPRs, evaluating the performance of patent prosecution with the help of algorithms, improving predictability and cutting costs for IPR owners. Algorithms can also be "trained" to analyze and manage IP portfolios, making them more cost-efficient and error free. This is especially true in the area of patent prosecution and filing, where the costs are traditionally higher.   

Simultaneously, the use of AI will inevitably generate new questions as systems become more sophisticated and creative. Courts and legislators will have to address the place of machine-created inventions in IP. As it stands in the United States, patentable inventions must be the product of human intellect. Under these circumstances, will the status quo remain unchanged? The next ten years will address this conundrum.

3. Common law terms and technological advancements

In the United States, reliance on common law doctrines is a necessary part of IP practice. However, with the advent of the internet, many of these common law terms are no longer consistent with technological norms. For example, copyright law reserves the right to reproduce a work to the owner. The doctrine of exhaustion, one of the oldest common law copyright doctrines, states that the copyright owner's rights are exhausted upon the first sale of the protected item. However, purchases of works over the internet nearly eliminates the first sale defense; as purchasers have rights to use and resell the copyrighted work. (ReDigi Inc. v. Capitol Records, LLC, 2019 WL 2121701, U.S.). Incongruity in results is inevitable as technology and IP merge, forcing practitioners to seek legislation that will resolve these issues.

4. The trademark arena will become even more crowded

The trademark arena is already crowded and obtaining strong global protection is becoming nearly impossible, especially with trademark registrations at an all-time high. Brand owners may see more hurdles to registration due to the likelihood of confusion with already registered marks.  Because of this, practitioners must be well versed in strategies for unique applications to increase their chances of success.

During the next 10 years, trademark practitioners will be confronted with this ever-increasing frustration, and the outcome is unclear. In the article, "Are We Running Out of Trademarks? An Empirical Study of Trademark Depletion and Congestion," Barton Beebe and Jeanne Fromer  commented that "the supplies of word marks that are at least reasonably competitively effective as trademarks are finite and exhaustible. This supply is already severely depleted, particularly in certain sectors of the economy, and levels of depletion continue to rise. Those marks that are registered are growing increasingly congested. The result, as the data reveals, is that new trademark applicants are increasingly being forced to resort to second-best, less competitive marks, and the trademark system is growing increasingly—perhaps inordinately—crowded, noisy, and complex." The authors also suggest heightening the use requirements for registered marks, secondary meaning requirements for new marks and taking into account the crowded field during litigations. They also state that these solutions are only usable if everyone can first agree that the trademark supply is finite.

5. Mass expiration of copyright

For the first time in 20 years, there is a mass expiration of copyrights in the US and as a result, practitioners expect to see significant litigation. The Sonny Bono Copyright Term extension of 1998, at the urging of the Disney Corporation, prolonged the copyright term for works made in 1923 or later. This effectively froze copyright protection, pushing the nearest expiration date to 2019 and consequently nothing has entered the public domain since 1998. There's no doubt that corporations who rely on older copyrighted materials will again push for extensions on copyright (Mickey Mouse's first appearance is set to expire in 2024). 

6. European Directive on Copyright in the Digital Single Market

The European Union's newest copyright directive was approved on April 15, 2019, giving EU members two years to implement new measures that will in part address the effects of globalization and technology on IP law. This directive is an attempt to harmonize copyright across the EU's member states and could signal a greater international effort for harmonization. Andre Koch, a Dennemeyer expert on copyright, says "much will depend on the actual implementation by member states, later by market participants and by courts of law." 

7. Omni-IP management

Like the use of big data, the integration of technology into practice will become the norm in the coming decade. Intelligent software will be a standard tool used to conduct business in a fraction of the time that it currently takes an attorney. While it may not replace the expertise that an attorney brings, machines and algorithms will soon conduct a variety of functions including searching for infringing material and preparing patent applications. It is unlikely that AI will replace the need for an IP attorney because of the human element. Creativity is a product of the human mind, but machine learning is improving rapidly and the very technology that enhances a lawyers value, could ultimately replace some of them.

8. Client interaction

The interaction between attorneys and their clients is vastly different from what it was 20 years ago. Thanks to the multitude of new communication methods and devices, attorneys and clients no longer need to travel to see each other. In fact, they may never even meet, while still benefiting from the relationship. Advances in technology allow clients to choose attorneys, interact with them, and complete the necessary legal work from a distance. In 10 years, communications technology will have advanced to a point where meeting in person will be dis-incentivized.

9. The end of plagiarism

Artificial intelligence, software and technology have made it possible to tailor-fit products for the desired audience. This trend will eventually shorten completion times and answer previous concerns about inventions created through machine learning. Ten years from now, machine-created artwork and designs will become more commonplace.

10. Maximizing portfolio value and the evolving role of attorneys

In the last 50 years, intangible assets have grown to account for 80% of most companies' valuation and over 35% of the United States economy, with expectations for continued growth.  As such, practitioners should enact strategies for growing their portfolios and shifting IP management toward exploiting profit opportunities, rather than solely being a protective mechanism. Practitioners will have to take on a dual role of providing legal advice as well as portfolio management services to deliver the highest level of service. The internet has made this increasingly difficult, where non-attorney services offer a more inexpensive do-it-yourself model. These services, unless curtailed, will force law firms to evolve as the non-attorney services continue to grow.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions