Celebrating the 50th Anniversary of les Nouvelles

In 2015, Oxford University Press made history announcing that Oxford Dictionary’s Word of the Year was, for the first time ever, a pictograph called “the face with tears of joy” emoji. I still do not know how to pronounce or spell this “word.” As the language of any culture reflects the nature of society, “emoji” may encapsulate today’s technology-rich and fast-paced digital environment into one single “pictographic script.” Language evolves as technology advances; creation of a widely accepted new language, Emoji, may represent a new culture accepted by “a universal society” where people and culture become digital.

The year was 1965 when a licensing attorney, Dudley B. Smith, and a patent attorney, Dan Stice, had the idea that licensing of intellectual property needed an organization to promote this activity. At that time licensing was mainly an activity between corporations and not very widespread. The idea was to offer members an opportunity to learn about legal and practical aspects of licensing and to make it possible for members to do business together.

Licensing professionals have seen dramatic changes in the United States patent system since the creation of the Licensing Executives Society 50 years ago. The paradox of the U.S. patent system during these five decades is that the only constant has been change. At times, these changes have been welcomed by licensing professionals. At other times, they have caused great consternation. This paper will provide an overview of some of the most significant changes concerning U.S. patents that have impacted licensing professionals since the founding of the Licensing Executives Society.

The Bayh-Dole Act is arguably one of the most influential pieces of intellectual property law in the twentieth century. Passage of the act allowed universities to retain ownership of federally funded intellectual property—dramatically transforming the way inventions are treated in universities while enabling society to gain even greater benefit from publicly funded scientific research.

IP is evolving from “Intellectual Property,” where one attempts to build a litigation-proof and protective “fence” around one’s intellectual assets, to “Intellectual Partnership,” where one freely exchanges these intellectual assets through win-win transactions. The first 100 years of intellectual property (IP) since the Paris Convention in 1883 have been about all steps up to the IP grant, i.e. up to building that “fence.” The last 30 years of IP have been about all steps after the IP grant, i.e. focusing on the market opportunities gained from exchanging and licensing these intellectual assets. This radical transformation has been the main driver of the changing paradigms of innovation, and the advent of Open Innovation. We are entering a time when many organizations and individuals can be effective at participating in the innovation process. Innovation was used to keep people out, now it is used to invite people in. Today, more and more, innovation relies on the development of collaborative networks in the form of innovation platforms. The aim of these platforms is to identify and connect multiple actors with complementary resources in the search for creative and meaningful solutions that are mutually beneficial. As a result, such collaborative networks would involve a wide range of actors, including academia, intergovernmental and non-governmental organizations, the private sector and of course the individuals forming the network.

Since 1977 the European Patent Office (EPO) has been responsible under the European Patent Convention for the examination, granting and administration of European patents. It is a role in which the EPO has contributed to innovation and growth in Europe and worldwide with the administration of what continue to be the highest quality patents. Our institution has grown to become the second largest European organisation and now comprises nearly 7000 dedicated staff who are committed to intellectual property through the examination and administration of robust patents.

Latin America and the Caribbean countries have a new challenge, a more complex international order that faces them to an economic globalization, with such particular characteristics that make management and administration policies integrate new elements.

The high-tech company, Hewlett Packard, used to have a well-known “What If?” slogan many years ago. This slogan became associated with innovation and more specifically, innovating the future. The catchiness of the phrase extended to many aspects of life, and individuals often used this slogan in meetings to stimulate what we might call “outside of the box” type of thinking. The LES (USA & Canada) society just finished celebrating 50 years as a professional society. Wow, that is a terrific history, and now we have the privilege of launching the society into the next 50 years plus of the future.

My career in licensing began in 1951 and overlaps the history of LES. I participated in at least one of the early discussions that gave birth to LES. It took place at a PLI seminar in New York City on the handling of surplus technology about 1960. The first president of LES (Dan Stice) and the first editor of les Nouvelles, Thelma Heatwole, took part in that meeting.

In a recent split 2-1 panel decision in ClearCorrect Operating, LLC v. International Trade Commission, the Federal Circuit found that the International Trade Commission (ITC) had no jurisdiction to remedy patent infringement by blocking infringing digital data files from being imported into the United States because the ITC’s jurisdiction is limited to tangible “articles.”

Readers of this column may get the impression that all recent licence-related developments in Europe occur in the field of patent law. While it is true that things have been moving and shaking in that area (just think of all the excitement about FRAND patent licensing), there has also recently been an important judgment from the Court of Justice of the European Union (CJEU) about “fair compensation” for the unauthorized reproduction of copyrighted works. In light of the fact that the CJEU held that the Belgian system of fair compensation does not comply with the InfoSoc Directive, this reporter (being Belgian) was sufficiently intrigued to climb out of the patent trenches and dabble in some copyright instead.