Photo courtesy of Efrat Kasznik
At the beginning of a new year, I usually get asked what my predictions are for the coming year. With the beginning of 2020 being also the start of a new decade, I have participated in a survey of IP experts conducted by IPWatchdog, a leading IP blog that I contribute a lot of articles to. Below are the two questions that were posed to me, along with my predictions and wishes for 2020 and beyond!
Looking Forward: What are some of your predictions or thoughts on the IP front for 2020? You don’t need to use your crystal ball unless you want to, but what should we be watching/ expecting in 2020?
Thinking about the future of IP in the next decade, I see the biggest challenge facing the business community exemplified in the mismatch between the assets that bring the most value to companies, and the IP protection afforded to them. The problem has two sides to it: on the one hand, we see the erosion of what used to be the strongest legal protection, patent rights, which largely protect technology assets. On the other hand, we see new types of digital assets that may be even more valuable than technology in some industries, like data assets, which have little or no IP protection at all. This is how we get to the extreme situations of Unicorns (startups with valuation higher than $1 billion) having incredible valuations with no patents, and no other meaningful IP protection to speak of. This problem is mostly pronounced with software companies, who are no longer bothering to patent their underlying technology because of the many hurdles facing software patents, while at the same time developing data-driven assets (collected primarily around their users) which drive their valuation and monetization, but have no legal protection and are easy target for breaches and misappropriation.
As far as activism coming from the IP community, I see a lot of focus on the patent front, and virtually nothing done on the data front. Even if the strength of the patent system is fully restored to its glory days, this will solve only part of the problem. Data assets, growing in importance across many industries, from software to biotech, are left unprotected. The only protection I see is physical protection (limited access or cybersecurity measures), but there is no legal protection. Without legal protection, there is no way to create or price transfer mechanisms (such as licensing in the case of patents), and no way to remunerate the holder of these data assets in cases of misappropriation. My call for action to the IP community is to advocate for the IP protection of data assets. This may require the creation of new classes of IP rights, or at the very least expanding the protection and enforcement of existing types of IP rights.
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Your Wildest Dreams: What are your wishes for 2020 (your wildest IP dreams, rather than what you think will really happen).
My “IP dream” is a simple one: I dream of pricing transparency in patent transactions. Transparency around patent prices, royalty rates and licensing terms. Sadly, I have had the same dream over the last 20 years of valuing IP assets, and it is not any closer to materializing now than it has been 20 years ago. I dream of not having to sort through incomplete and random data sets or redacted SEC filings, that happen to be in the public domain, when looking for a royalty rate to apply in a valuation assignment or in a licensing deal. Nothing that exists in the market today fills that gap, because there is no requirement of systematic reporting of IP deals by companies, nor is there systematic valuation on the balance sheet due to the lack of such requirement by the accounting rules. Without this type of transparency, patents will never be managed as the business assets that they are. Let’s hope that the next decade brings some change in this area.
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