IP issues are business issues

By Duncan Bucknell co-written with Joanne Sinclair, Consulting Editor.

Search the internet for “Jeremy Phillips” and you will find out that he is an intellectual property consultant; author, lecturer and commentator on patents, trade marks, copyrights and most contemporary issues involving intellectual property rights. Those who don’t know him would very quickly get the strong impression that he’s been fairly busy in the world of IP during his 50-something years on the planet.

And they would be right: while Jeremy is based in London, his influence extends much further due to his roles in creating, editing and writing for IP magazines and journals, as well as blogging. He is well known as a “founding co-blogmeister” and current blog team member on the award-winning IPKat intellectual property weblog. Not satisfied with that, he has more recently created blogs focusing on European trade marks (Class 46), African IP (Afro-IP) and the interface between IP and monetary matters (IP Finance). It’s frankly surprising that Jeremy has not yet been inducted into the IP Hall of fame, but no doubt that will happen this year.

Duncan: OK, so Jeremy, I’ve often wondered – if you hadn’t been an IP lawyer what would you have been?

Jeremy: er .. I’m not actually an IP lawyer. It’s just that everyone thinks I am. I’ve never held any professional qualification for any job I’ve ever done in my entire career. I would have been a teacher, though. I love teaching and spent the first 11 years of my gainfully employed life in doing just that. But I couldn’t pay the bills …

Duncan: Right, with all due respect to my fellow lawyers and patent and trade marks attorneys, that probably explains why you have been so successful. I know (and have met) a lot of people who have been heavily influenced by you. I’m always delighted to meet one of your former students. Who would you say has been the greatest influence in your IP work and why?

Jeremy: In the Ethics of the Fathers Ben Zoma is quoted as saying “Who is the wise man? He who learns from all men”. I’ve tried to implement that from the start, which means I’ve been influenced by my teachers, colleagues, students, rivals, friends and foes alike.

Duncan. So, getting down to brass tacks – what would you say is the one intellectual property issue that you think successful companies must do incredibly well?

Jeremy: They treat their problems as business problems rather than as legal problems. Many lookalikes and inexact copiers are a distraction that can be swept aside by better marketing policy, rather than by suing them.

Duncan: Why?

Jeremy: It’s because they use their resources to best effect. For example, marketing heads, R&D chiefs, finance and HR are all better at doing their own jobs than in having interminable meetings with lawyers, reading and re-reading witness statements that had to be written for them, hanging around in court, arguing over which bit of the corporate budget the cost of litigating comes out of and delegating their real jobs to others while this all goes on.

Duncan: Another important emerging issue is that some say that IP will gradually be taken over by open source and creative commons, which are based on shared benefits rather than monopolies – do you agree?

Jeremy: Cooperation and easy access has happened in several areas: blanket licensing of copyright, FRAND licensing of technological standards. But there are areas where it is simply inappropriate and will always remain so. One is branding, another is know-how licensing.

Duncan: Can you expand on this?

Jeremy: Let’s take branding as an example. Branding (including business format franchising) depends on functions such as quality control, which are inherently exclusionary. If a fashion house licenses the manufacture of watches bearing its brand, an open source model or collective commons model deprives it of the effective power to control the manner in which licensees make those watches, thus risking fatal damage to the exclusive or quality-laden ethos of the brand that makes people want to take a license to it in the first place.

Duncan: One last burning question – if you could change one thing in the world of IP what would it be?

Jeremy: I’d make all IP investment far more tax-friendly. IP exploitation generates so much in terms of corporation tax, VAT and so on. It creates, stimulates and continually nourishes markets. Anyone investing in the development of IP rights, or the acquisition of an IP portfolio, should be given positive inducements to make it more worthwhile.

Duncan: OK, this really is the last question, how can the IP community best influence governments to this end?

Jeremy: I don’t think the IP community can influence governments at all, because we’re not a single focused community but a complex interrelationship of symbiotic relations. While we see ourselves as a community, the businesses and industries that are based on IP – and which depend on our advice – do not. And they’re often in total conflict with one another. Thus retail chains and independent brand manufacturers are both dependent on IP but their interests are quite different. So too with hardware and software manufacturers, music performers and the music distribution industry. The list is a long one.

Duncan: Thanks so much, as always, Jeremy for your insight.

If you’re unaware of Jeremy’s work, then I recommend visiting his website http://jeremyphillips.blogspot.com/.

I also highly recommend his four blogs: IPKat , Class 46, Afro-IP and IP Finance.

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