Posts in Europe

On April 6, the UK High Court issued a judgment of non-infringement in favor of artist Ed Sheeran over his 2017 song, “Shape of You.” The court held that Sheeran did not copy a part of Defendant Sami Chokri’s 2015 song called “Oh Why.” The ruling came nearly four years after co-writers Chokri and Ross O’Donoghue (collectively, Defendants) first accused Sheeran and his co-writers, Snow Patrol’s John McDaid and producer Steven McCutcheon (collectively, Plaintiffs) of deliberately and consciously copying from a part of “Oh Why.” Alternatively, the Defendants contended that he did so subconsciously.

There were 188,600 European patent applications filed last year, an annual increase of 4.5%, according to figures published by the European Patent Office (EPO) on April 5. Despite the impact of the pandemic, applications increased to a record level following a slight decline in 2020. The United States was once again the top country for applicants, accounting for a total of 46,533 applications in 2021 (an increase of 5.2%) or 25% of all filings. It was followed by Germany and Japan, with China ranking fourth. Applications from China increased by 24% to 16,665 in 2021; they have quadrupled in the past decade. Other notable increases were from Sweden (up 12% to 4,954), Canada (up 18.4% to 2,083) and India (up 16.5% to 817).

Senators Thom Tillis (R-NC), Tom Cotton (R-AR) and Marsha Blackburn (R-TN) sent a letter yesterday to Secretary of Commerce Gina Raimondo expressing their “grave concerns” with the compromise language agreed on recently in the ongoing talks to waive intellectual property rights for COVID-related technology under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. On March 15, the European Union, United States, India and South Africa announced the compromise language. The text is not final and still must get official approval from all 164 World Trade Organization (WTO) member countries.

The European Intellectual Property Office (EUIPO) recently published a deep dive report, titled Study on the Impact of Artificial Intelligence on the Infringement and Enforcement of Copyright and Designs. The report is a product of the Impact of Technology Expert Group, which was established in early 2019. They followed an approach based on Lawrence Lessig’s ‘Code and Other Laws of Cyberspace’ also known as the Code Theory. This describes how human online activity is regulated by law, social norms, and the market, taking into consideration the internet’s technical infrastructure. This approach led to a double-edged sword metaphor, in which a particular technology can be used either to infringe IP rights or to protect/enforce them, presenting to some extent the same features in each case.

As an update to my posts from 2017, 2019, 2020, March 2021, and August 2021, it has now been 93 months since the U.S. Supreme Court’s 2014 Alice Corp. v. CLS Bank decision. Yet the debate still rages over when a software (or computer-implemented) claim is patentable versus being simply an abstract idea “free to all men and reserved exclusively to none” (as eloquently phrased over 73 years ago by then-Supreme Court Justice Douglas in Funk Bros. Seed Co. v. Kalo Inoculant Co.). Further, it has been 11 years since famed venture capitalist Marc Andreessen wrote the influential and often-quoted op-ed piece in the Wall Street Journal titled “Why Software Is Eating the World.” Today, the digital transformation where software is “eating the world” is undeniable. Let’s look at some facts and figures from the USA, Europe, and China.

A new study on trade in counterfeit goods that pose health, safety and environmental threats has found that China and Hong Kong account for some three-quarters of exports of dangerous counterfeits. It also found that online sales represent 60% of seizures of dangerous products destined for the EU. The 90-page study was published on March 17 and jointly conducted by the Organisation for Economic Co-operation and Development (OECD) and the European Union Intellectual Property Office (EUIPO). It is based on customs seizure data and other enforcement data from 2017 to 2019, as well as interviews with enforcement experts.

Reports overnight indicated that the European Union, United States, India and South Africa have reached a compromise on language for a waiver of intellectual property rights related to COVID-19 vaccine technology under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. The compromise is not final and still must get official approval from all 164 World Trade Organization (WTO) member countries. The latest text is limited to “patented subject matter required for the production and supply of COVID-19 vaccines” only; the previous proposal was much broader. “Patented subject matter” is defined as including “ingredients and processes necessary for the manufacture of the COVID-19 vaccines.”

The United States Patent and Trademark Office (USPTO) announced last week that it will terminate engagement with the Russian IP Office (Rospatent) as well as the Eurasian Patent Organization (EAPO) and the IP Office of Belarus, which has been cooperating with Russia in the lead-up to and during the Russian invasion of Ukraine. The USPTO also said on Wednesday that, effective March 11, it is no longer granting requests to participate in the Global Patent Prosecution Highway (GPPH) at the USPTO when those requests are based on work performed by Rospatent as an Office of Earlier Examination. And, in pending cases where the Office granted special status under the GPPH to applications based on work performed by Rospatent, “the USPTO will remove that status and return those applications to the regular processing and examination queue, meaning that they will no longer be treated as GPPH applications at the USPTO,” said a USPTO statement. “Like so many, we are deeply saddened by the events unfolding in Ukraine,” said the USPTO. “We hope for the restoration of peace and human dignity.”

The struggles that most artists endure include creativity blocks and economic hardship; however, British artist Banksy seems unaffected by either of these. His street art is celebrated all over the world for its anti-authoritarian tone and his extremely secretive personal identity. Recently, he has even been venturing into Non-Fungible Tokens. But unwittingly, and rather humorously, Banksy is facing a different kind of dilemma in terms of either revealing his overtly confidential identity or losing exclusive rights to his works.

The European Patent Office (EPO) recently published its Guidelines for Examination 2022, which come into force on March 1. Compared to previous years, the volume of changes is much smaller, and this witnesses the effort by the EPO in past years to arrive at a more stable text of the Guidelines, particularly concerning the software patentability and biotech sections. Yet some changes have been made, mainly to software patentability guidelines, as well as to other important sections, such as partial priorities and amendments to the description. Continuing the trend of past years, the Guidelines continue to be enriched with helpful examples.

An anti-suit injunction is an interim order issued by a court in one jurisdiction that prohibits a litigant from initiating or continuing parallel litigation in another jurisdiction. The practice of the anti-suit injunction is traced back to fifteenth century England, where royal courts issued writs of prohibition to stay parallel proceedings in the ecclesiastical courts or common law courts. Initially, the use of anti-suit injunctions was limited in England. By the nineteenth century, however, their use expanded to prevent litigation in other British colonies and eventually foreign countries.

For a long time, the courts in England have been a forum of choice for the resolution of disputes between international parties, with the promise of an experienced judiciary and a cost-efficient approach to discovery and expert testimony. The English Patents Court is no exception, with multi-jurisdictional patent disputes often featuring an English action. In addition to the availability of specialist judges and legal teams, the ability to obtain some discovery when needed (but without the extensive, onerous and costly approach to discovery in the United States), to cross-examine experts at trial and to obtain declaratory relief make the UK an attractive jurisdiction. The thorough and reasoned judgments that can prove useful in parallel litigation across Europe and the general availability of injunctions are also key drivers for patentees.

The countdown to the launch of the EU Unitary Patent has begun, with the new system expected to start before the end of this year. The final legal step took place on January 19, when Austria deposited its instrument of accession to the Protocol on Provisional Application of the Unified Patent Court (UPC) Agreement. It is the 13th country to take this step, meaning that the provisional application period has now entered into force. In practice, this means that UPC judges and other staff can now be recruited, IT systems set up and budget confirmed. The provisional period is expected to last at least eight months, i.e. until late September 2022, although it could be as long as 12 months.

The International Trademark Association (INTA) has made an amicus submission before the EU Court of Justice (CJEU) in a case concerning parallel imports and EU trademark law. (Case C-175/21 Harman International Industries, Inc. v. AB SA.) In the case at hand, Harman, which makes audiovisual equipment, brought trademark infringement proceedings in Poland against AB, a distributor. AB had put on the market goods featuring Harman’s trademarks, which it had obtained from a third party. Europe operates a system of regional exhaustion, as set out in Article 15(1) of the EUTM Regulation, and in parallel imports cases national courts have referred to “goods which have not been put on the market within the European Economic Area (EEA) by the right holder or with his consent.” (Gender-neutral language has not yet become established in EU jurisprudence). In this case, Harman argued that the goods had been imported into Poland and had not been put on the market within the EEA by Harman or with its consent. AB claimed it had received assurances when it bought the goods that the trademark rights were exhausted.

Today, patent data analytics firm IFI CLAIMS released its annual report of the top U.S. patent recipients and active patent family owners, providing the IP world with a look at the patent ownership landscape that developed throughout the course of 2021. For yet another year, information technology R&D giant International Business Machines (IBM) earned the top spot among entities obtaining patents from the U.S. Patent and Trademark Office (USPTO), while South Korean tech conglomerate Samsung Electronics enjoys the largest portfolio of global active patent families.