Friday, June 18, 2010

Professor Llewelyn: "Leverage Your IP Rights"

This Morning IP Dragon attended a breakfast seminar by Professor David Llewelyn (IP Academy of Singapore and Of Counsel at White & Case in Singapore). Even though it was quite early, many people interested in how to maximise the use of IP did show up at the office of White & Case in Central, Hong Kong. Professor Llewelyn's presentation was about Intellectual Property Rights as a Balance Sheet Asset. In other words how to commercialise your intellectual property rights. Below is a brief impression:

Professor Llewelyn rightly made the point that IP is not just a legal tool. That the IP assets are fast becoming a focus of the investment world. The securitization of intellecutal property rights is in Asia nascent. Article 26 Copyright Law 2010 even mentions this possibility explicitly: "Where a copyright is used as a pledge, both the pledgor and pledgee shall register the pledge with the copyright administrative authorities of the State Council."

China's leadership understands that it has to climb the value chain in order to continue its economic growth. And IP is protecting this added value. Professor Llewelyn covered the different kinds of intellectual property rights (he can cover all IPR in one hour, see here) and explained the origin of patent (to disclose the information in exchange for a temporary monopoly) as the opposite of latent (which one could apply to trade secrets).

Llewelyn described how Li Ning (athletic shoes and sporting goods) used a combination of the swoosh of Nike, the stripes of Adidas and the wave of Puma and using the slogan "Everything is possible" (while Adidas uses the slogan "Impossible is nothing", read an article by Drog Poleg on Danwei here) and still gets away with it.

About trademarks Professor Llewelyn said that many companies did not pick a very good name. He illustrated this by drawing the travails of China's computer manufacturer Lenovo, who used be called Legend. But this laudatory name was very hard to trademark in other countries. So it had to rename itself to Lenovo (Legend + Novo), which must have been a costly operation.

He made the distinction between copyrights which give the copyright holder the right to exclude others from copying their work, but is not giving a monopoly to the holder as is the case with patents.

In China most companies have utility patents which are not examined, therefore cheap, but really do not tell competitors anything about whether they are valid or not. Professor Llewelyn told about the IP game, of patent trolls (non-practising entities), licensing and sub licensing etc. which, of course, is a serious game, because a lot can be at stake. Valuation of IP can be very difficult. But it is getting more important, since many companies start to park their IP assets in "tax neutral" jurisdictions such as the Cayman Islands, Guernsey, Jersey etc.
You should know first what you have. Then use what you have. Leverage your IP rights.

Professor Llewelyn made a case for using IP strategically. And to bring IP out of the marketing and legal departments into the boardroom. One of the board should own the IP issue internally and deal with the IP challenges.

I am looking forward to read his book: 'Invisible Gold in Asia', which deals about the same crucial subject matter that only becomes more important for each and every company: Creating wealth through intellectual property.

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