It’s been five years and more since the coming into operation of the Patents Act 1995, whence an independent patent system came into existence in Singapore — a somewhat belated promulgation, departing from the piggy-back notion of first obtaining a UK grant and then registering it in Singapore for patent protection.

Now local patent applications are filed directly in Singapore and internationally under the Patent Cooperation Treaty (PCT).

The global drive towards innovation and diffusion of information technology and e-commerce has been accompanied by laws regulating ownership and control of intellectual property rights (IPR), giving protection to literary, artistic and scientific works; performances of performing artists, sound recordings and broadcasts; inventions; scientific discoveries; industrial designs; trade and service marks; and against unfair competition.

Indeed, all over the world, from Beijing to California, Moscow to Paraguay, there is a war over intellectual property protection.

This is nothing new. Alexander Graham Bell and Elista Greg filed competing patents for the telephone in 1876. History’s great inventors armed themselves with patents. Edison is still the record holder: he had 1,073 patents. They say that without such protection, none of them would have ventured to give us this light.

With patents gaining a global glow and growth, marked advances in patent development on a universal standard will be the next frontier.

The number of patents being issued by the United States Patent and Trade Mark Office is running at nearly twice the level of a decade ago (161,000 in 1999 as opposed to 100,000 in 1990). With financial service companies like Merrill Lynch, KPMN and Citigroup attempting to patent even their consulting processes, and business models, almost everything is potentially patentable, so long as the Patent Office recognises that the idea embodied in a patent application is novel, useful and inventive. Soon enough, we may patent the human genetic code, transforming medical practice as we know it, and even surpass man’s landing on the moon. Singapore, too, has launched its life sciences programme last month.

Part of the reason for North America’s present patenting boom lies in its government. After the great patent wars of the last century, trust-busting US governments came to regard patents as tools of monopolists, not as incentives to creativity. The US courts took an equally dim view and most contested patents were thrown out. However, landmark decisions in the US in the 1980s have since made new areas of technology patentable, spawning patents in biotechnology and genes, software and business-methods.

And the Microsoft case? It’s being seen as an old-fashioned anti-trust affair about a dominant firm bullying smaller rivals. Microsoft’s appeal will be heard some months away but no matter how Microsoft emerges from the anti-trust battle, some say that Microsoft’s future is literally cut-and-dried, either way.

Notably, though, Microsoft lawyers were criticised in presenting their case. ‘They fought everything. They blew their credibility, with the usual caveat: they were doing what their client wanted them to do’, a criticism lawyers will do well to remember.

The rally cry for protection of ideas and inventions by businesses and individuals has put lawyers in the front line. What has our profession to do to keep abreast with this inevitable coupling of law and technology?

With national strategies for economic development incorporating science and technology as a central feature of its long term plans, and a growing breed of technopreneurs emerging, Singapore has been steadily advancing towards comprehensive IPR protection.

Chief Justice Yong Pung How in his ‘Welcome Address’ to some 160 Advocates & Solicitors on their ‘Call Day’ recognised the need for a new breed of lawyers to rise to the new challenges posed to the business community by developments in IT. Senior Minister Lee Kuan Yew at the Millennium Law Conference’s Gala Dinner in April this year felt that we should go ‘American’ when we talk of patents, especially Internet patents for a wired world.

At last count, we had some 33 law firms with 3 or more lawyers doing substantially, or at least partly, IP work per firm. At least 44 individual lawyers specialise in IP in Singapore, according to the Asian Patent Attorneys Association.

In the main, our lawyers still entrust the drafting of patent specifications to overseas patent attorneys. Some firms have even invited foreign patent attorneys to join their ranks here. Other firms employ trained engineers or science graduates as legal executives to assist them in their patent practices. Our Intellectual Property Office (IPOS) also engages the services of the Australian Patent Office in the substantive examination of patents.

Mrs Murgiana Haq, Chairperson of our Intellectual Property Committee, tells me that what is needed to further support the industry are patent attorneys. These professionals with technical degrees undergo intensive training for at least two years in patent laws and drafting. More established industrialised countries, such as the UK, Europe, Japan and Australia, see the patent professional as playing a vital role in supporting industry to promote and protect innovations in co-existence with IP lawyers.

Although locally, some short courses have been conducted in basic patent drafting, our local universities ought to consider taking the lead in training technical professionals in the area of patent drafting and arguments. This will create a pool of home grown patent attorneys, who can contribute to the private and public sectors, and support the local drive towards innovation, research and development.

Already, one law firm has brought in a registered UK Patent Agent from Europe and another has an Australian Patent Attorney. The Council of the Law Society has permitted the publication of the name and designation of a Patent Attorney/ Patent Agent on its letterhead — a progressive sign of the times, as change is today a feature of all aspects of our economic life, where standing still is not — and can never be an option.

Clients need advice on methods to best acquire and manage their intellectual property rights, from drafting agreements licensing the use of their intellectual property and new technology to stopping the infringement of their rights. Lawyers advising in these areas are embroiled in exciting new issues spawned by technological advances — a challenge in a climate where the global legal framework struggles to keep up with revolutionary technological changes. Awareness of the impact of international developments is, therefore, vital.

What would be the effect of accession to an international convention, which allows a foreign patent to attain automatic validation in Singapore once the patent is granted in its home country? Would it affect the vibrancy of the local patent scene if a large number of foreign patents enjoy recognition in Singapore without the need for any national application or substantive examination? Will this greatly diminish the need for home grown patent attorneys altogether?

The impetus for legal change has arisen since the GATT agreement on trade-related aspects of intellectual property rights (TRIP’s Agreement) in 1994.

Last month, the World Intellectual Property Organisation (WIPO) met in Geneva and some 43 countries signed a new world patent law treaty; 64 other countries plan to follow soon. Soon, standardised forms will be accepted by all patent offices, with basic standards for electronic submission of patents, thus giving way to filing a single patent on a global standard.

Significantly, too, the Madrid Protocol, came into operation in April 1996. Although not adopted by the majority of Asean countries, it facilitates the obtaining of protection of marks through its registration in the International Register and produces the same effects as an application filed with the Trade Mark Office of the State. Singapore has acceded to this Protocol, which is expected to be operational here later this year.

The process to develop a global intellectual property rights framework is well on the way.

Yet, as the world moves towards global consistency in IPR legislation, it is not quite clear who the major benefactors will be in terms of innovation; and the argument that an international IPR system is more likely to benefit technology suppliers than technology purchasers may still evidence disparity of interests, a divide, worldwide.

There are no easy answers, but then life is not easy. Bill Gates knows it, and renegade businesses or infringing individuals understand it. For lawyers, the ideas leading to the further development of IP laws will be the most critical challenge for this digital age. And may the Einsteins in our midst let fly their creativity!

Now, try patenting that!

Palakrishnan
President
The Law Society of Singapore