“We don’t have a crystal ball!” was a frequently uttered phrase in 2020. It was the case inside the International Trademark Association (INTA) as we navigated the tremendous uncertainty brought about by COVID-19. In the shadow of the pandemic, our desire to understand the future has become even more acute. We want to be prepared for the unknown. We want to remain relevant. We want to be innovative and a force for positive change.
Yet, while we don’t have a crystal ball, we can—and should—ask big questions about the future and map a path forward. No doubt, the IP landscape is evolving quickly, and stakeholders of all types must embrace change and adapt or be left behind, so what does the future hold for IP?
IP offices (IPOs) offer a good indicator. INTA convened the IP Office of the Future Think Tank in early 2019. It brought together 14 current and former heads of IPOs from around the world (Australia, Canada, Chile, Europe, France, India, Mexico, the Philippines, Singapore, South Africa, Uganda, and the US) to ask the big questions and to envision what the IPO might look like in ten to 20 years’ time.
While INTA facilitated their interactions, the participants developed the report independently. Indeed, the thank tank was a very deliberate choice for the format for this research project—INTA supported the analysis, but the opinions are from independent experts. Likewise, the geographical diversity of those involved ensured that the views of the think tank represented all types of IPOs, of varying sizes and facing different challenges.
Realising the opportunity to reach a more holistic view of the future of the IP industry, and drawing on our global membership, the Association subsequently convened two additional think tanks to look at in-house teams and law firms.
INTA published “The IP Office of the Future” think tank report in November 2020, along with “The In-House Practice of the Future” and “IP Law Firms of the Future” think tank reports. Their findings are insightful, presenting the future challenges and opportunities for the IP field.
The IPO’s non-traditional future
The experts considering the IPO of the future focused on three interconnected topics: the evolution of the IP system, future challenges and opportunities (including the game-changers IPOs face, such as the fourth industrial revolution, the rise of private rights, and informal IP protection), and the IPO’s traditional and non-traditional future roles.
The report acknowledges that there is no one-size-fits-all approach for IPOs when it comes to anticipating and responding to future challenges and opportunities. Indeed, every IPO faces different challenges, opportunities, mandates, historical contexts, and social and economic imperatives.
Nevertheless, one clear conclusion that builds throughout the report is that the IPO of the future cannot remain strictly focused on its traditional roles. To remain relevant and to continue serving the needs of its users, the IPO of the future must embrace a variety of untraditional roles.
“Governments that have proved most effective in developing their IPOs are those that recognised the need for an effective IP system and appropriately elevated IP in their legislative agendas.”
Etienne Sanz de Acedo, INTA
The think tank experts agreed that most IPOs have shifted from what is generally considered to be the traditional roles of an IPO (such as administering and registering IP rights; harmonisation of IP law, using new technologies to adapt services, and financial resources and stewardship) to taking on critical roles that influence national economic development.
Their evolution comes in response to the increasingly central role of creativity and innovation in modern-day economic growth. Governments that have proved most effective in developing their IPOs are those that recognised the need for an effective IP system and appropriately elevated IP in their legislative agendas.
“However, with no common understanding about what additional roles IPOs should take on and at what priority, each IPO has decided independently what the nature, implementation pace, and number of its new tasks will be”, the report notes.
The result is considerable diversity of roles among IPOs globally, whether at national, regional, or international level. Non-traditional roles are evolving and specific to each IPO, but tend to include:
- Connecting across stakeholders
- Supporting research and innovation
- Leveraging market efficiency with ownership information
- Increasing marketplace performance through IP valuation
- Increasing trust and respect for IP through enforcement
- Awareness and education on IP benefits
- Informing and supporting policy development
- Enabling AI and disruptive technologies
- Becoming data-driven
The report concludes that there are a few qualities the IPO of the future should embody: (1) remain purpose-driven (ie, focus on its core mandate); (2) maintain robust stewardship (to withstand disruptions); and (3) be nimble, connected, and innovative (to adapt to rapidly evolving situations).
Since the report’s release, there has been strong interest among IPOs to use its findings to trigger discussion around their own future. The UKIPO initiated the first such meeting—a “Trade Marks and Designs Forum” in early March. The office brought together some of its core users, as well as various UK-based and European IP associations, and INTA, to discuss its future role and how best it can respond to the challenges ahead.
Commenting after the forum, UKIPO deputy CEO and director of operations David Holdsworth said: “Today’s pace of change and disruption pose unique challenges to regulators, innovators, inventors, IP rights owners, and businesses across the globe. The risk of changing and intervening too soon risks creating bad policy.”
“However,” he added, “the risk of failing to adapt and failing to become more agile and proactive also risks IP environments becoming unfit for purpose or irrelevant. This report and the opportunity that INTA created for space to discuss, examine, and explore collaboratively has never been more important.
“We look forward to continuing discussions and working collaboratively to keep IP policy and operation as a key enabler to innovation.”
On March 25, high-level representatives from 25 European IPOs participated in an online dialogue titled “The IP Office of the Future: A Perspective from Europe.” Hosted by INTA, the dialogue focused on five areas where IPOs could see their role evolving: human resources; artificial intelligence; enforcement; the relationship of IPOs with other public institutions; and IPOs in times of crisis.
Three regional dialogues took place during INTA’s 2021 virtual Leadership Meeting, bringing together IPO representatives from the Asia-Pacific, Europe, and Latin America, respectively. We feel that the strong interest in the report and for dialogue signals a bright future for the global IP community.
In-house brand counsel
In-house IP practitioners face a similar future. “The In-House Practice of the Future” think tank report highlights how business teams expect their in-house counsel of the future to be able to field all types of matters, beyond the traditional area of expertise. The report provides deep insight into the roles and responsibilities of in-house IP attorneys, the impact of technology on the practice, and core competencies for, and obstacles to, creating the brand legal team ten years into the future.
Their roles are expanding as the practice itself evolves. A key takeaway from INTA’s “2020 In-House Practitioners Benchmarking Report,” published last December, is that in-house teams are having to do more with less as budgets shrink and workloads increase. However, it’s not simply a growing amount of what can be considered “traditional” work. Instead, the role of the in-house practitioner is evolving from specialist to generalist as their mandate expands.
In an expanded “brand counsel” role, in-house teams are working on adjacent areas of the law. In the survey for the “In-House Practitioners Benchmarking Report”, participants shared how demand for certain types of work has changed over the last three years. Anticounterfeiting work, at 60%, saw the largest increase, while other areas, such as social media (54%) and matters and relating to privacy and compliance (43%) also saw notable growth (Figure 1).
Figure 1: Where has demand increased over the last three years within in-house teams?
Source: INTA 2020 In-House Practitioners Benchmarking Report
2016 INTA president Ronald Van Tuijl served on the expert group for this think tank. Discussing the “key elements in becoming true brand counsel”, he recommends that in-house teams should not only expand into adjacent legal fields but focus on leadership beyond their team, deepen their understanding of the business, become project managers, and collaborate more with other teams.
Reflecting on the role of brand counsel of the future, Van Tuijl said he would instil the brand counsel mindset into his team “because it’s such a strong catalyst to broaden our scope and open our minds”.
“Only those who can adapt survive, and we have shown we’re experts in adapting, so we will come out stronger. I see a great era coming for our profession if we dare to take ownership of our own future,” he noted.
A technological law firm
As law firms plan for the future, in-house teams are seeking law firm partners who can support them in expanded roles, covering the traditional IP legal issues but also regulatory issues, public relations, policy, and data privacy, for example.
Law firms must be prepared to counsel and support their clients across wide-ranging industries and issues. At the same time, they must navigate new challenges and be capable to take advantage of new opportunities. These include new technologies that impact the way firms operate and how society behaves and communicates, the evolving IP landscape, and increasing competition.
Peter Sloane, chair of INTA’s Law Firm Committee, was a member of the “IP Law Firms of the Future” think tank. For Sloane, who notes he began practising law when firms kept card catalogues with renewal deadlines, how a law firm embraces technology will determine its future success.
“What stood out for me is the fact that in the years since the recession of 2008–2009, continued improvements in technology have allowed companies to effectively manage their legal work as never before.
“The open question for law firms is whether they can harness technology to provide a strong value proposition to their existing clients, and whether they can use technology to find new clients and opportunities along the way,” said Sloane.
“Those who prosper will proactively incorporate the latest technologies into their practices,” he suggested. “The report has made me keenly aware of the need to avoid complacency and continue learning new ways of working to keep up with the times.”
“We will repeat this research on a regular basis every few years so that we continually project ourselves into the future.”
Broadening our view of the future
Looking to the future, this year we’re convening two new think tanks that will add to this growing body of research and further broaden our view of the future of the IP ecosystem. These think tanks will look at IP and the Judiciary, and at Technology and the Service of IP.
We must continue projecting ourselves into the future. We want to look at all aspects of the IP ecosystem and eventually understand not only the different roles of stakeholders but, perhaps more importantly, how they can work together.
These must not be one-off exercises. We will repeat this research on a regular basis every few years so that we continually project ourselves into the future. This, we think, is providing tremendous value to our members. And, without the help of crystal ball, this is also one of the most effective ways for us to support the global IP community into the future!
INTA is encouraging all stakeholders in the IP community to read all three reports (the reports and executive summaries are available on www.inta.org) and, with this more holistic view of the industry, to reflect on their role in a global IP ecosystem and forge a path into the future with greater confidence.
Etienne Sanz de Acedo works with INTA’s Board of Directors and Officers to recommend, formulate, and implement policies and programmes for the Association. He is responsible for the administrative operation of INTA’s offices; the supervision of all staff; and the development and administration of the annual budget. He can be contacted at: firstname.lastname@example.org
Images, from top: Shutterstock / Anisara Angkhanaphanit, Gennady Danilkin