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IP AND PATENTS, What Is Wrong with The World Of IP?
Harmonisation is to create softconnections between differences.Harmonisation is not suppression, but isinstead education and respect for thehistory behind each harmonised party.We have been living during a period oftime characterized by turbulences ofall types and with a number of harshissues and cases. One change in myview that has been special is thatnamely in the past, the offer providedby the opposing party was the trigger,whereas nowadays it seems to bemore of a demand; this is becausewe have a rational expectation toobtain whatever we believe weare obliged to. Overtime, this hasbecome more readily available thanksto the digital environment which isshared internationally; if we wish toobtain something that is not currentlyavailable, within a few hours we areable to get our hands on it, allowing theformal aspect of sales to be immaterialand extra fast.
Without doubt this has had effect onthe IP sector; you may have notedhow IP has been subjected to strongpressure, likely to be the result ofartificial (European) unity, which hasstrategically pushed from the outskirtsinstead of challenging and facingthe central issues of the (European)unification.
The World Intellectual PropertyOrganisation (WIPO) eventually - in2014 - stated and made clear thatencouraging creativity is at the heartof WIPO and that all nations thatharness the power of creativity andinnovation - through the use of theIP system - can achieve or at leastencourage economic growth andcultural development.
So, at that point it comes quite natural a question as to how had we survived previously? We questioned ourselves to how we had lived and worked alongside all countries, whilst dealing with their individual rules and methods without mutual harmonisation.
Contemporary: Does It Mean It Is Modern or Advanced?
This also begs the question to whether or not the Paris convention should be updated in order to allow priority claims for IP Recordals?
Contracts related to IP have significantly increased and it is expected to increase in the future; with this in mind, the priority mechanism could be positively applied, especially due to the fact that Recordals are not always an obvious or easy process.
Actually, in some countries, applications for Recordals must be requested for within a certain time from execution, especially if one has the need to enforce it. The reason to why I argue this is, when you have to record an IP transfer in several countries, it can become a costly and cumbersome exercise to prepare and file all Recordals together; therefore, it would be a much more relaxed and less expensive process if one could count on priority claims.
This is particularly true when you have to save on financial costs; a common issue that businesses face is that Registry Offices in different countries will claim a certain percentage out of the amount that is shown in the assignment.
Moreover, the text of the deed often requires changes from country to country, but if we were able to count on priority claims, it would be possible to fix a possible date and then begin drafting all the other alternative versions.
I also deal with cases of criminal relevance; this is where you can be the real assignee and be the first to record it in your home country, but then a third party tries to be first to record themselves fraudulently in an alternative jurisdiction.
Bad practice and mistakes by the Trade Marks Offices (TMOs)
When there is a change of ownership, simultaneously there are frequent cases whereby the examiners overlook the completed or pending Recordal and issue objections/refusals. We are now not dealing with a matter of opinion, but simply with a matter of material error; the updated information was available but the examiners’ system did not get it, so that an ungrounded decision was issued. Where mistakes may occur, even for examiners, there ought to be a release from fees when such mistakes occur, a notice of correction by the applicant and to revoke the erroneous decision, thus letting the application to proceed without further costs.
To our knowledge, there is no express provision anywhere so that a substantial, further amount of work will be requested; nevertheless, we must consider the cost of updating the examiners’ software which is often is the main cause for these mistakes.
Published on: www.lawyer-monthly.com
Author
Domenico De Simone |