Delivered in Parliament on 12 January 2022
Making Intellectual Property Law Work Even Better
The proposed changes in the Bill will codify simplifications and streamlined processes associated with intellectual property (IP) procedures. These changes relate to a wide range of IP classes, including patents, registered designs, trademarks, geographical indications, and plant varieties protection.
While I support the Bill, I will offer some additional points for consideration. My remarks pertain to three areas: drawing a distinction between protection afforded to trademarks and geographical indications vis-à-vis other classes of intellectual property, the application of information technology and digitalization to IP processes, and the notion of a unified act for all IP classes.
Not all intellectual property warrants equal protection
In my prior speech on how intellectual property confers monopoly rights on ideas (during the debate on the Copyright Act of 2021), I had spoken about the tradeoffs between granting IP protection and innovative activity, and concluded that we should be sensitive to inherent tradeoffs between our pursuit of preeminence as a global IP hub, and sanctioning potential abuse and overreach via rent-seeking behavior. (1)
The moral of that argument applies with special force for the case of trademarks (along with geographical indications). (2) Legally-enforceable trademarks do not generally promote competitive innovative activity, unlike copyrights or patents. They do not enrich the public domain, serving as the germ of subsequent research ideas. Their function is largely market-oriented, to grant its owners a right to preclude others’ from the use of a particular established brand or symbol. More fundamentally, trademarks have a tendency to favor the business interests of incumbents, against those of new entrants and challengers to the status quo. The public policy premise for their existence is therefore correspondingly weaker, and we should, accordingly, be more guarded in our treatment of trademarks in our corpus of IP law. (3)
The amendments in Part 5 of the Bill, on trademarks, should therefore be scrutinized in this light. In particular, while the partial refusal mechanism is certainly more efficient from the perspective of expediting the legal process, institutional frictions may yet serve a purpose: they inhibit excessively frivolous trademark applications. The analogy here is how the ongoing debate about a small transactions tax that would throw “sand in the wheels” could discourage the excesses of speculative trading in financial markets.
Sir, I understand that this approach is already in place in other international jurisdictions, (4) and is consistent with designations in the Madrid Protocol. Still, I think it is fair to ask whether—as a small open economy with a strong interest in promoting indigenous innovative capacity—whether we should be granting certain IP rights that could be counterproductive in advancing that endeavor. More pointedly, are we granting too much power to the Registrar to approve trademarks on a partial basis, instead of the existing default of requiring a full resubmission, which may well be favorable for fostering a less inhibitive innovation climate? Put another way, do we wish to make it easier for applicants to quickly secure IP rights that could be used toward profiteering? One only need look to trademark trolls worldwide, such as Paris Hilton attempting to trademark, “That’s Hot!” or Donald Trump seeking to trademark, “You’re Fired!”
Rage against the machine
While not explicit in the Bill, there are two aspects of information technology and digitization that I believe merits additional comment. In the initial public consultation document issued in August last year, (5) IPOS explained that it had begun the deployment of artificial intelligence (AI) technologies for IP administration. In particular—and relevant to this Bill—one use of AI was in assessing extension of time requests in response to correspondence from the Registrar.
The Bill itself proposes that the stipulated time periods be shifted from the Act to the Rules, across multiple IP classes, as captured in amendments to Section 36 of the Patent Act, Section 19 of the Trade Mark Act, Section 21 of the Registered Designs Act, and Section 51 of the Geographical Indications Act. (6) For instance, the two-month period for filing notices of opposition to proposed corrections for patent applications would now apply. Presumably, this was inspired, in part, by the application of AI to ascertain that such a two-month duration is reasonable, or, at the least, consistent with the historical data with which IPOS has available.
Mr Speaker, it is worth noting that the power and promise of AI is an enticing one, but the strength of the technology should not be overwrought. The strength of big data rests on, well, access to data that are genuinely large. Some rules of thumb are data in excess of 1 terabyte, or training data for machine learning that is in the order of millions of observations. While I do not have visibility on the number of IP applications IPOS has in its internal databases, I would venture that these fall far short of typical applications of machine learning. (7)
A perhaps more pernicious concern is that, unsurprisingly, AI technology is only as “intelligent” as the historical data on which it trains. This has led to arguments by some data scientists who point out that careless applications of AI could exacerbate existing societal faultlines and entrench persistent inequalities. (8) At the very least, AI predictions should be subject to scrutiny, not just by standards of fairness and transparency, (9) but also whether the historical decisions that are being fed into the algorithm were truly just or optimal.
Amendments to Section 108 of the Patents Act also touches on another element of information technology, namely the requirement that published patents be made available to the public. I believe that these amendments supplement existing open-data practices, notably the launch of the Patents Open Dossier (POD) database in June 2017.
Mr Speaker, to this end, I went ahead and explored the e-services portal myself. While such data access is surely welcome, I will only note that the existing design of the POD requires that the user know the parameters for a given IP, such as its filing date, applicant name, or application number. These are certainly useful for reverse lookups, is nevertheless extremely constrained, especially when engaged in the free-form searches one typically performs for exploratory research. To this end, I wonder if the Minister would be willing to share if there are efforts by IPOS to develop the database to allow for, say, keyword or categorical searches, so as to make it more useful.
One ring to rule them all
I shall close with a meta-point. The substantial amendments tabled in this Bill span 5 existing Acts, and exclude the Copyright Act, which was debated last year. Such multiple sources could lead to a proliferation of related laws that run the risk of potential conflict, while making searches for IP-relevant legislation less user-friendly.
May I ask whether the Ministry has considered consolidating the various IP related laws into a singular Act? The only justification I can think of is the need to remain faithful to various international treaties, to which we are party.
Such consolidation would not only make it simpler for IP and legal professionals to reference laws related to IP, while also remaining consistent with the ethos embodied in the Statute Law Reform Act, which was passed last year in this House.
(1) See: https://www.wp.sg/copyright-bill-speech-by-jamus-lim/.
(2) Landes, W.M. & R.A. Posner (1987), “Trademark Law: An Economic Perspective,” Journal of Law 2 and Economics 30(2): 265–309.
(3) There is, in fairness, a counterargument to this somewhat simplistic argument that trademarks 3 should be treated as pure private goods and—in the absence of any clear market failure—ineligible for public policy intervention, at least from an economic standpoint. Defenses typically claim that trademarks exhibit certain nonrivalrous qualities, and there are elements of asymmetric information that could justify the granting of trademarks. See Barnes, D.W. (2006), “A New Economics of Trademarks,” Northwestern Journal of Technology and Intellectual Property 5(1): 22–67; or WIPO (2011), World Intellectual Property Report: The Changing Face of Innovation, Geneva: World Intellectual Property Organization.
(4) These include the EU IP Office, US PTO, China National IP Administration, and Hong Kong IP 4 Department.
(5) IPOS (2020), “Changes to Simplify Intellectual Property Processes and Improve User Experience 5 with Digital Initiatives,” Public Consultation Document, Singapore: Intellectual Property Office of Singapore.
(6) IPOS (2021), “Intellectual Property (Amendment) Bill 2021,” Public Consultation Document, 6 Singapore: Intellectual Property Office of Singapore.
(7) In 2020, the World Intellectual Property Organization data has 13,265 applications registered to the 7 Singapore office. Only China (the country with the highest patent applications) exceeded the 1 million mark (1,497,159, to be precise; the United States, at second, recorded 597,172 applications).
(8) O’Neil, C. (2016), Weapons of Math Destruction: How Big Data Increases Inequality and 8 Threatens Democracy, Largo, MD: Crown Books.
(9) These, together with explainability, characterize the Model AI Governance Framework employed by 9 the Personal Data Protection Commission for deploying AI solutions in governance.