REPORTS

Report on the 2^nd AIPPI Forum 1999 in Lyon

Integrated Management and Implementation of Industrial Property Rights

The aim of the AIPPI Forum is to focus on the analysis of the role and function of intellectual property in a broad, interdisciplinary context. The 2^nd AIPPI Forum, which took place in Lyon/France from 3 to 6 March 1999, gave people from all over the world the platform to reflect on and exchange their views on the two fascinating topics below:

Integrated Management of Industrial Property (Panel I)

Panel I was chaired by John M. Pollaro, Vice President of the Patent Department of Procter & Gamble Technical Centers Ltd. He explored in a first step the meaning of the term "IP Management" in practice. In this context he could rely on the expertise of Elisabeth Thouret-Lemaître, Head of the Patent Department, Société Synthélabo in France, Rolf W. Einsele, Chief Patent Counsel, Intellectual Property Department of DaimlerChrysler AG, Germany, Garo A. Partoyan, former General Counsel - Marketing & Technology of Mars, Inc., USA and Takashi Sawai, Senior Manager, Intellectual Property Department, NTT Nippon Telegraph and Telephone Corporation, Japan. Each of them lined out and analyzed the structure and organization of the IP Management unit under their responsibility. It was fascinating how differently these IP Management units are organized, although with an identical objective, i.e. to optimize the value of the IP-assets.

In the course of the subsequent discussion the speakers tried to develop the corner stones of a concept for an integrated structure of IP Management. Assisted by provocative questions of Daniel Hangard, General Director of the French National Institute for Industrial Property, the Panel made out the following trends with regard to the integrated management of IP:

• Companies are trying to integrate their IP within their business in a better and more efficient way.
• IP is seen as a broad spectrum, not only referring to traditional industrial property assets such as patents or trade marks, but integrating trade secrets, know-how, product data (namely in pharmaceutical industries) and information technology into IP management.
• Within companies, the relationship between the in-house IP-, R&D- and business-professionals is changing significantly. New products and projects are developed ideally in team oriented working groups, integrating IP-professionals at a very early creative stage. Thereby, the nature of the job and the job-profile of in-house IP-consultants changes as there is a need to meet new interdisciplinary requirements within the coordinates of business, technology and law.
• Finally, the relationship with external IP-counsels is beginning to change as well. Of particular interest is the exchange of know-how and expertise of private practitioners in the strategic context of IP, taking the cross-border relevance of modern IP-litigation into consideration.
  

Implementation of Industrial Property Rights (Panel II)

Joanna Schmidt-Szalewski, Professor of Law at the University Lyon III, France, chaired Panel II. Five distinguished academic experts addressed the implementation of IP relevant treaties and international agreements under the aspect of different national legal orders. The focus lied on the TRIPS Agreement, being the first comprehensive IP agreement which establishes minimum standards for practically all categories of IP rights. While these treaties are crucial for the operation of the global IP protection system, their role and position in international law is still not clear in many countries.

The speakers of Panel II tried to shed some light on the actual legal practice in their respective country:

Frederick M. Abbott, Professor of Law at Chicago-Kent College of Law, noted that – with regard to the United States of America - there has been a recent trend in the Congress to deny direct or self-executing effect of important multilateral treaties such as the Berne Convention and the TRIPS agreement. However, even if the courts are bound by the legislator to deny a direct effect of international IP treaties, they may nevertheless use recognized interpretative doctrines to integrate the essence of international IP norms into US Law, such as the doctrine of consistent interpretation.

Yuji Iwasawa, Professor of International Law at the University of Tokyo, Japan, stated that - under Japanese Law - international treaties prevail national statutes even if most scholars are of the opinion that the Constitution ranks higher than treaties. In any case, Japanese scholars and courts have basically adopted the concept of self-executing or directly applicable treaty provisions. According to the speaker, theoretically, it is possible for the courts to directly apply those provisions of the WTO and TRIPS Agreement that are precise and complete. On the other hand, in practice, it is not very likely that the courts would declare national law to be nil and void in case of flagrant contradiction with prevailing international law.

With regard to the situation under Brazilian law, Paulo Borba Casella, Professor of Law at the University of Sao Paulo, Brazil, gave a broad overview on recent developments. Whereas direct effect of international (IP relevant) law and the doctrine of consistent interpretation are both acknowledged by so-far decided case-law, such cases have not yet been reviewed by higher courts.

Thomas Deisenhofer, legal assistant to Advocate General Francis G. Jacobs at the European Court of Justice in Luxembourg, elaborated on the relationship between international IP treaties and the legal order of the European Community.

In his presentation, Ashwani Kumar, Senior Advocate of the Supreme Court of India, addressed the current Indian initiatives towards harmonizing Indian law and policy with the standards of international IP relevant law. However, with regard to the Indian attitude, he recommended to those not satisfied with the pace of progress towards uniform international standards that they should reflect on the following words of wisdom ascribed to Francis Bacon

"The cripple who keeps the way gets to the end of the journey sooner

than the runner who goes astray".

In the afternoon Panel discussion, the panel speakers were confronted with a series of delicate questions by Thomas Cottier, Professor of International Economic Law and European Law at the University of Berne, thus guaranteeing a lively and interesting controversy.

Peter Widmer, Attorney-at-Law, Bern, Switzerland

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