Intellectual property challenges are the threats to the stability of copyright, trademark, patent, and other areas of intellectual property (IP) protection. The balance between the interests and needs of creators and the public is a fundamental underpinning of IP law. When this balance is no longer maintained, respect for intellectual property protection is in danger.

Current Intellectual Property Challenges

Thirty years ago, IP was a small specialty area of law; today, it is an ever-growing field that supports billion-dollar industries. Despite this increased importance and prevalence, the sanctity of IP protection is threatened by a lack of respect for this area of law. Many individuals believe that:

  • IP infringement doesn't hurt anyone.
  • If they do infringe on another's IP, they won't get caught.
  • IP rights allow the owner to collect inflated profits.
  • IP rights restrict competition.

These perceptions indicate that many believe that the balance of IP laws is in favor of the holders of these rights, as illustrated by the ready availability of counterfeit products; pirated movies, music, and software; and calls for U.S. patent system reform.

Three factors have profoundly impacted the public perception of IP rights. These include:

  • The ability to easily and quickly make digital reproductions that can be distributed freely, whereas this type of exact reproduction once required the skills of an expert counterfeiter
  • The ability of those who disagree with IP rights to be heard on the same scale as experts and lawmakers thanks to the internet. For example, peer to peer networks that facilitated software sharing was difficult to prosecute because they were decentralized.
  • Expanded creator rights, including increased patent protection for pharmaceuticals, agricultural processes, medical treatments, genetic material, software, and many other creations.

With such dramatic changes in the IP field over the last 20 years, the public perceives that the legal system is trying to maintain the status quo by increasing creator rights in the face of new technologies.

Content publishing industries and other areas of copyright are torn between seeking more rights and enforcement methods or relying on the legal protections already in place in a fair way. While criminal piracy is certainly a concern, most consumers are willing to pay a fair price to acquire copyrighted works in a simple, intuitive way; the iTunes website is a prime example of this type of mechanism. Consumers have been proven willing to pay a reasonable amount for digital downloads that they can transfer freely on their smartphones and other devices. Fair use of these downloaded copies should be intrinsic.

The biggest challenge for the IP industry with this framework is managing this fair use without allowing consumers to widely distribute protected creations to others, as is done on peer-to-peer file sharing networks. While technical measures to monitor the traffic on these sites exist, they need to be enforced. 

Managing these challenges will include not only legislative changes but also the introduction of new technical systems that are acceptable to both content creators and the public. In addition, a global consensus on enforcement should be reached. These measures can include:

  • Introducing and expanding online distribution systems that provide an alternative to unauthorized sharing systems
  • Vigilant enforcement of existing IP rights that targets the distributors rather than the consumers of pirated information, as well as international cooperation on this front
  • A global copyright system that focuses on the fundamental balance between creator and public rights administered by international organizations like the WIPO and WTO.

Future Patent Challenges

Debate on what type of inventions can be patented will always exist. Instead, the industry should focus on resolving the discrepancy between the ease of obtaining patents and the difficulty of challenging patent protections, as well as the extensive application process plagued by ever-increasing delays in processing time.

Most companies have strict procedures to determine whether an invention is patentable, typically centering around whether the creation is obvious or novel. These constraints can lead to the exclusion of appropriate material from patent protection. 

The volume of patent applications received is also a factor. The U.S. Patent and Trademark Office currently receives 300,000 annual patent applications and the processing time for each is about four years. The quality of the patents granted has been criticized, leading some to theorize that patents should automatically be granted and then challenged when necessary. 

However, that method would likely increase the public's disdain for the current patent system. Instead, the patent system should grant fewer but more worthy patents. This could be achieved through greater cooperation with creators.

If you need help with an intellectual property issue, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.