New Zealand Law Society - IP insurers point to rapid growth in IP filings

IP insurers point to rapid growth in IP filings

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Intellectual property registrations are rocketing globally as part of a major surge in the growth of intangible assets which now comprise nearly 90% of the asset value of businesses, a review of IP risk management says.

The review, by New Zealand company Delta Insurance, says patents, copyrights, registered designs and trademarks make up a big proportion of that.

Protecting Your Competitive Advantage looks at major trends in IP-related issues in two important New Zealand export markets: China, where product counterfeiting has long been a major issue, and the US, where “patent trolls” - unscrupulous operators who use IP litigation to extort money out of businesses - are rife.

Photo of Avani Vyas
Avani Vyas. 

Review author Avani Vyas says patent filings worldwide increased by 8.3% in 2016 over the previous year and the figure for trademarks was 13.5% - 9.7 million were filed in that year. In 2016, China applied for 3.7 million trademarks and 1.3 million patents; the corresponding figures in the US were 545,000 and 605,000. “The global scale is astonishing.”

Alongside that, IP litigation was also increasing quickly: 31,000 patent infringements went to court in the US between 2012 and 2107, while Chinese courts handled 213,000 IP-related cases in 2017 alone – twice the figure of 2013.

Ms Vyas says New Zealand companies invested around $1.6 billion in R&D and registered around 7000 trademarks and 300 patents in 2016.

“We have this incredible record of innovation in New Zealand. But our innovative businesses haven’t always been meticulous in shoring up their IP and even when they have, they often aren’t prepared for the significant costs which can arise from IP challenges.”

Cautionary tales

The review provides several cautionary tales of New Zealand businesses which had to face crippling consequences from IP violations, predatory IP attacks or other challenges and outlines steps businesses can take to improve their risk management.

Notable examples include costly copyright violations of Sealegs’ amphibious vehicle system by rival engineering companies, and the stoush between Lewis Road Creamery and Fonterra over milk packaging. Kiwi hi-fi manufacturer Phitek also got a sobering taste of the power a multinational can exercise to protect its interests when Bose stopped an export consignment in the US over alleged IP violations.

Ms Vyas says the financial impact of IP litigation can be shocking; Fisher & Paykel Healthcare, for example, incurred almost $15.6 million in legal expenses to enforce its IP against a competitor.

She says the situation in the domestic market is also changing.

“Kiwi companies are increasingly facing global competitors who are proactive and have resources to protect their IP.  A recent case in point involved Coca-Cola who threatened a Wellington café with legal action if it didn’t change its name – ‘Innocent Café’ – which clashed with a UK juice brand trademark owned by Coke. A similar fracas also arose over My Food Bag’s use of the phrase ‘hello fresh’ in its marketing – which was challenged by global food company HelloFresh.”

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