The patent protector

The Philippines has shown its influence in advocating for intellectual property laws. Asia Business Law Journal sat down with Rowel Barba, director general of the Intellectual Property Office of the Philippines (IPOPHL) and the elected chair of the 21 member countries of the Asia-Pacific Economic Co-operation’s (APEC) Intellectual Property Rights Experts Group (IPEG). In this exclusive interview, he shares his vision and sheds light on the state of IP in the region

Asia Business Law Journal: Amid the current slowdown in Asia, what are your strategies for the IPEG to help stimulate the economy?

Rowel Barba: The pandemic has disrupted the world economy but, according to data from the World Intellectual Property Organisation, IP filings worldwide were not affected in the past two years. Most applications [came] from Asia, particularly China, Japan and South Korea. While the IPOPHL [was] affected by the pandemic in 2020, where our filings decreased by around 20% compared to 2019, we’re happy that we were able to recover in 2021. In 2022, IP filings increased by 3.7% to 48,259 filings from 46,558 applications in the previous year. Hopefully, we’ll be able to maintain and even increase the filings this year and in succeeding years.

We see IP as an important element in economic recovery, especially in helping our micro, small and medium-sized enterprises (MSMEs) and our creative sectors. They are the ones affected the most by the pandemic. Now co-operation is more needed after the pandemic, and we really need to help each other to harness the potential of IP for our inventors.

We are guided by the … APEC Putrajaya Vision, which is to have an open, dynamic, resilient and peaceful Asia-Pacific by 2040, where all people and succeeding generations will prosper and make use of IP effectively.

Our proposed work plan for the IPEG is anchored in three focus areas: IP financing; IP in the digital economy, and interconnectivity; and IP for sustainable and inclusive growth. We hope to work on these focus areas together with the other economies and to gather more input from academia, which we hope to implement during our term for the next two years until December 2024.

As the IPEG is one of the sub-fora under [APEC’s] Committee on Trade and Investments, we need to ensure we are aligned with the committee’s priorities. APEC is composed of developed and developing countries, so we hope that developed countries will be able to share their best practices.

ABLJ: The newly signed Regional Comprehensive Economic Partnership (RCEP) covers an extensive IP chapter that sets out a common protection and enforcement standard. What are the most unique features?

Barba: The IP chapter … includes harmonising the IP rights protection beyond the level of the Agreement on Trade-Related Aspects of Intellectual Property Rights that was signed by all WTO members in 1994. This includes provisions on technological protection … and enforcement in the digital environment, as well as criminal procedures and penalties against unauthorised copies of cinematographic work on a commercial scale. The IP chapter also includes streamlining and aligning procedures relating to electronic filing and making relevant information [available] online.

In this IP chapter, each economy is given … measures and authority to protect genetic resources and traditional knowledge and folklore. It also includes an obligation to join international filing systems such as the Patent Co-operation Treaty, the Madrid Protocol and the Hague Agreement Concerning the International Deposit of Industrial Designs.

Currently, the Philippines is looking at acceding to the Hague Agreement, which would provide our MSMEs with a cheaper and easier filing of applications, as well as improve the branding strategies of local industries, businesses and entrepreneurs. For example, sound and colour marks would be able to be protected.

That is why we are also initiating amendments to our IP regimes. Currently, in the IP Code of the Philippines, which is 25-26 years old, there is a requirement that trademarks should be visual. We are trying to remove that word so we will be able to accommodate non-traditional visual marks to be registered as trademarks.

In the bigger picture, a more robust [regional] IP activity and development can be expected in terms of enabling more people to create, register and protect their IP rights. The RCEP can also accelerate discussions on emerging and IP-related issues like e-commerce, the digital economy, artificial intelligence (AI) and the metaverse.

ABLJ: With decentralisation, blockchain technologies and token-based economics shaping the future, what do IP offices need to do to safeguard intangible assets while fostering innovation ecosystems?

Barba: First, we really must know more about this frontier. We need to understand what ChatGPT, AI, the metaverse and blockchain are all about; then we will be able to [improve the capability of] our personnel, especially our examiners … to deal with such applications in the future.

There are lots of disputes on who owns IP rights, especially those involved in the metaverse and non-fungible tokens. There are a lot of challenges we know, and there are also a lot of discussions around copyright, and we hope to contribute to that in the future. That’s why we have been joining panel discussions and learning from the different economies, especially those IP offices with advanced developments like South Korea, Japan, the US and Singapore.

When the IPOPHL was promulgated, there was no internet, so we really have to first change the framework, and modernise the IP office and how we consider things, especially for examination.

While Australia has declared that an AI can be an inventor, there’s a requirement in the Philippines that an applicant should be a natural person. Therefore, I think it would depend on the different IP offices and jurisdictions on whether an AI can be an applicant or the creator of work.

ABLJ: Given that women are underrepresented in the IP field and only make up a small percentage of international patent applications, what are the barriers and solutions?

Barba: I think the first problem or challenge … is the lack of access to resources, which includes financial and knowledge resources, particularly in developing countries. There is still a lack of representation of women … in science, technology, engineering and mathematics, as well as other IP-related fields.

There is also still a lack of understanding of IP rights and how to respect IP among the public. That’s why the IPOPHL continues to conduct IP awareness sessions, especially among youth. Other challenges include discrimination bias and sociocultural norms and expectations.

So, how can IP offices and government institutions help improve diversity, equity and inclusion in the IP field?

I think the first thing to do is to map and address the barriers. We continue to consult with women, especially in different fields. Second, we have to continue finding good practices, knowledge sharing and capacity building. That’s why the APEC is a good platform for exchanging ideas and practices that have been considered successful in some economies and, hopefully, can be replicated in other economies.

For example, the IPOPHL’s Juana Make a Mark programme reduces IP application fees for women entrepreneurs or women-led MSMEs, and has assisted around 4,000 MSMEs since its inception in 2017, with an additional 1,500 currently in the pipeline. We hope to replicate the success of this programme in the innovation space with our Juana Patent and Juana Design Protection programmes …to make patent filing more accessible to women at reduced costs.

The IPOPHL also has some assistance for Filipinos to waive certain fees for international patent applications. Hopefully, we will gather more applications from women for whom the main challenge … is the lack of funds.

For youth, the IPOPHL has an incentive programme called the Up Programme to assist those below 23 years old to … file patent applications and registrations of their inventions.

These programmes are multi-stakeholder collaborations where the IPOPHL works with the Department of Trade and Industry in identifying qualified MSMEs, the Department of Science and Technology in fast-tracking applications, and private institutions like the Retailers Association of the Philippines, the Philippine Franchising Authority, and the Philippine Chamber of Commerce to reach more Filipinos.