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SAP: Protecting IP in Emerging Economies


March 7, 2012 - New York

Intellectual Property (IP) Counsel cannot rely on traditional IP enforcement methods to protect their companies' IP rights in emerging economies, says Naomi Abe Voegtli, Vice President, Global IP, SAP. Protecting IP is always more challenging when itinvolves a jurisdiction outside the US. When that jurisdiction is a country with nascent IP laws, sometimes more non-traditional enforcement methods will provide better results.

A speaker at the marcus evans IP Law Summit Spring 2012 in Amelia Island, Florida, March 18-20, Voegtli shares her thoughts on protecting IP in China and India, and discusses her experiences in the software industry where patentability is unclear.

- What is unique about IP protection in the software industry? Whatcould IP Counsel learn from your experiences?

Protecting software IP can involve fundamental questions about whether the IP is patentable subject matter under the US Patent Law. The Supreme Court recently has weighed in on the patentability of software, providing some guidance; however, the full impact that the Supreme Court's decision will have on the Patent Office, the courts and, ultimately, our IP strategies, remains unclear. Further, the Supreme Court will be considering the patentable-subject-matter issue again during its current term, in the context of IP relating to diagnostic medical tests. Another decision by the Supreme Court on what constitutes patentable subject matter could greatly affect the software industry.

In addition, the standards for patentability of software in the US differs from those of many other countries, so it is important to keep in mind key countries' patentability standards when seeking protection for software, including the preparation of patentapplications. This can be challenging.

A significant development is Congress' recent landmark patent legislation, which includes many new and amended laws that differ among the software, pharmaceutical and chemical industries. Some of the amendments are favorable to the software industry, but a few amendments that the industry supported did not make it into the final legislation.

- How could IP Counsel safeguard IP in emerging countries?

IP protection systems are still evolving in emerging economies, such as China and India, and multinational companies are hoping that those protection systems will improve in many areas.

In countries with well-established IP laws, like the US, IP Counsel have viable litigation options and a clearer understanding of how to negotiate and license IP rights. But when doing business with China and India, IP Counsel need to be more creative and also more understanding of local practices and customs. For example, it might be worth getting supportfrom government officials outside of the court system and exploring "win-win" situations with those believed to infringe. Enforcing a judgment against an infringer can also be difficult, thus, requiring the help of local IP Counsel to implement enforcement solutions outside of the court system.

In China, it is national policy to increase domestic ownership of IP, so IP Counsel cannot depend on traditional methods for protection and enforcement. Many IP Counsel are not aware of this, however,and do not significantly modify their practices and strategies when dealing with China.

- Is this similar to negotiating with a hijacker or a kidnapper? What if there are several IP infringers?

I would phrase it differently and do not see it this way at all. The IP laws are very young and evolving at a fast past in China, for example, and we must take a wait-and-see approach to see how much progress China makes over time. My expectation is that it will improve substantially; it is just a matter of time. Chinese pro-national IP policy will affect the ability of a non-Chinese company to enforce its IP; thus, in devising an enforcement strategy for China, it is important to consider lobbying the Chinese government and cooperating with the US government to encourage change in China.

- What is your outlook for the coming years?

The US Supreme Court has shown great interest in patent law and policy over the past several years, which I expect will continue. It is thus important for IP Counsel to maintain a flexible approach so that they are able to adjust their practices and strategies as the IP laws and the IP climate changes.

There also has been some anti-IP sentiment amongst some policy makers and academics in recent years, which may affect the Supreme Court's outlook on IP matters involving software. In the face of this anti-IP sentiment, the industry should respond and make clear the importance of having adequate IP protection on software technology.

About theIP Law Summit Spring 2012

This unique forum will take place at The Ritz Carlton, Amelia Island, Florida, March 18-20, 2012. Offering much more than any conference, exhibition or trade show, this exclusive meeting will bring together esteemed industry thought leaders and solution providers to a highly focused and interactive networking event. The Summit includes presentations on safeguarding IP, developing sustainable brand protection strategies, global IP portfolio management and maintainingcompetitiveness with IP litigation.

For more information please send an email to info@marcusevanscy.com or visit the event website at www.iplawsummit.com/NaomiAbeVoegtliInterview

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Please note that the Summit is a closed business event and the number of participants strictly limited.

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marcus evans Summits are high level business forums for the world's leading decision-makers to meet, learn and discuss strategies and solutions. Held at exclusive locations around the world, these events provide attendees with a unique opportunity to individually tailor their schedules of keynote presentations, think tanks, seminars and one-on-one business meetings. For more information, please visit www.marcusevans.com.

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