Posts in International

WIPO Report: China Sees Massive Surge in IP Filings Across the Board

Worldwide IP filings increased by 3.6% in 2021, according to a report published November 21 by the World Intellectual Property Organization (WIPO). The increase came during a turbulent time for the world economy, at the height of the COVID-19 pandemic, as well as a global economic downturn. The biggest increase in patent filings was in Asia, where 67.6% of worldwide patent applications were filed. The United States saw a 1.2% decrease in filings and a 1% increase in trademark filings. Trademark applications grew at a much faster rate than patent applications, with a 5.5% in trademark filing activity. Industrial design filing activity also rose by 9.2% with the largest uptick again in Asia. China saw high rates of growth and is a global leader in sheer numbers across all indicators.

SEPs in Europe: From Huawei/ZTE to Apple/Optis, Europe Has Become a Friend to Patentees

During IPWatchdog’s Standards, Patents & Competition Masters 2022 program last week, one panel examined the standard essential patent (SEP) landscape in Europe, which has become decidedly more patent owner friendly than that of the United States in recent years. Beginning with the landmark 2015 decision by the European Court of Justice in Huawei v. ZTE, ([2015] EUECJ C-170/13), European courts have held SEP holders and implementers to account by applying the framework set forth in that ruling, which panelist Inna Dahlin of Valea AB summarized for attendees.

Making the Most of Relationships with International Associates

For many intellectual property lawyers, the search for a local associate to assist with IP filings around the world begins and ends with a quick email to colleagues asking who knows someone in a particular country. And while personal connections are important, this method probably won’t lead to the best legal services for your clients. As we emerge from the pandemic and return to face-to-face meetings, here are several tips for vetting foreign associates. This process ideally starts overseas and leads to in-person conversations, but text chats and video calls still have value.

How to Rewrite Method-of-Treatment Claims to Conform to Japanese Patent Practice

In the United States, claims directed to methods of treating/diagnosing human disease are patentable. On the other hand, in Japan, such claims are unpatentable. Therefore, the applicant is required to rewrite or delete the claims when a patent application (e.g., Patent Cooperation Treaty application) containing such claims enters the Japanese national phase and is examined. In this article, I offer my personal views on how to rewrite method-of-treatment claims for Japanese examination. I will particularly focus on claims that may or may not conform to Japanese patent practice while past Japanese patent cases and the current patent system are taken into account.

With Decision Looming on Extension of TRIPS IP Waiver, House Dems Want More Info, Industry and Advocacy Groups Battle for Public Narrative

On November 10, a group of Democratic members of congress sent a letter to United States Trade Representative Katherine Tai expressing concerns about extending a waiver of intellectual property rights under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement to therapeutics and diagnostics for the treatment of COVID-19. The letter comes as talks are heating up at the World Trade Organization (WTO) about such an extension, with the technical deadline for a decision being December 19. The letter poses seven questions for Tai to consider and respond to as she formulates the U.S. position on waiver extension, including whether the current waiver of IP rights for vaccine-related technology has been effective, how “diagnostics” and “therapeutics” will be defined, and that she provide a list of countries that have expressed interest in gaining access to American IP for COVID-related diagnostics and therapeutics.

Lawmakers Aim a Triple Whammy at American Innovation

Last week, the Bayh-Dole Coalition held a webinar titled “The Three-Pronged Attack on U.S. Innovation and Intellectual Property.” Before we consider each prong, it’s worthwhile reflecting on a larger point. Each would deal a body blow to American innovation just as we struggle to keep the economy on track. And each would be a self-inflicted wound that must have our foreign rivals shaking their heads at our folly.

Mexico and Switzerland Question Need for Extension of COVID IP Waiver

A communication from the governments of Mexico and Switzerland to the World Trade Organization’s (WTO’s) Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) on Tuesday raised a number of questions about the prospect of extending a waiver of intellectual property (IP) rights for COVID-19 vaccine technologies to therapeutics and diagnostics. The Council met informally in September to discuss the extension, which technically has a deadline of December 19, six months after the Ministerial Conference decision finalizing a waiver on “patented subject matter required for the production and supply of COVID-19 vaccines” only. The final agreement contemplated extending the waiver to “the production and distribution of COVID-19 diagnostics and therapeutics” within six months of adoption.

P.S., I Don’t Love You: UK Court Delivers Blow to Apple in FRAND Fight with Optis But Laments ‘Dysfunctional’ SEP Dispute System

The England and Wales Court of Appeal this morning said that Optis Cellular Technology is entitled to an injunction before a lower court has set fair, reasonable and non-discriminatory (FRAND) terms for a license to Optis’ standard essential patents (SEPs) if Apple refuses to take a court-determined FRAND license. But in a post script to the ruling, Lord Justice Arnold said both Apple’s appeal and Optis’s cross-appeal “illustrate yet again the dysfunctional state of the current system for determining SEP/FRAND disputes” and that the European Telecommunications Standards Institute (ETSI) and other standards development organizaitons (SDOs) should “make legally-enforceable arbitration of such disputes part of their IPR policies” to curb the problem.

How the Unified Patent Court Will Shake Up the Landscape of Patent Courts Worldwide

The Unified Patent Court (UPC) plans to open for business on April 1, 2023. Its likely place among the world’s preeminent patent courts can be inferred, at least in part, from the territorial and subject matter jurisdiction of this novel court. In Europe, several courts enjoy established reputations for patent litigation, notably in France, Germany, the United Kingdom, Holland and Italy. These courts, as well as the European Patent Office (EPO), which also enjoys a strong reputation for its case law, are the preferred venues of plaintiffs for enforcing or seeking to invalidate European patents. Due to the size and economic weight of the region, the importance of European patents, and the bench of experienced patent judges and practitioners, Europe will without doubt continue to attract a substantial share of patent litigation worldwide.

What Vifor v. CCI Could Mean for the Intersection of Patent and Antitrust Laws in India

Patent laws and antitrust laws (known as competition laws or anti-competitive laws in other jurisdictions), may seem antithetical to each other at first glance. Antitrust law is concerned with ensuring the existence of a free and fair market by promoting fair competition practices and discouraging monopolies, which often stagnate business innovation. In contrast, patent law grants inventors a limited period of exclusivity in exchange for disclosing their invention- i.e., a monopoly of sorts. These opposing objectives may not, however, be quite as conflicting as they initially appear to be. Both of these laws aim to balance individual interests with the greater public interest. In the July 2022 case of Vifor International Ltd. v. CCI, we see this intersection of patent and competition laws in India. The case highlights how these laws can exist in tandem and provide relief to the aggrieved.

BIO and Vaccine Manufacturers Group Sign on to Berlin Declaration on Vaccine Access

Two major trade organizations representing global vaccine manufacturers are officially backing a proposal submitted to the G20 and G7 countries in July that they claim offers practical solutions for future pandemics to avoid the inequities that have been highlighted by the COVID-19 pandemic. The Berlin Declaration was proposed in July 2022 by the International Federation of Pharmaceutical Manufacturers & Associations (IFPMA) and calls on industry to commit to “reserve an allocation of real-time production of vaccines, treatments and diagnostics for priority populations in lower income countries and take measures to make them available and affordable.”

America Needs a Chief IP Negotiator: Confirm Chris Wilson Now

The U.S. Senate might be the world’s “greatest deliberative body.” But it’s certainly not the quickest. For over a year, senators have failed to review and approve an uncontroversial nominee for a position that most Americans have never heard of—but one that’s immensely important to our economy. In 2015, Congress passed the late Senator Orrin Hatch’s Trade Facilitation and Trade Enforcement Act, which created the position of Chief Innovation and Intellectual Property Negotiator. Senator Hatch believed that intellectual property (IP) was so important to the U.S. economy that it deserved the focus of an ambassador-rank official charged with guaranteeing strong IP standards are upheld and enforced with global trading partners. He was right: IP-intensive industries support more than 62 million American jobs, nearly half of all U.S. employment. 

People’s Vaccine Alliance Report Condemns Big Pharma’s IP Stance

The People’s Vaccine Alliance, a coalition of over 100 organizations, issued a statement this week alleging that the pharmaceutical industry is attempting to tighten its control of the world’s pandemic response plans. In the statement, the organization argues that “enshrining pharmaceutical companies’ demands in a pandemic treaty or other pandemic preparedness plans would normalize global inequalities and tie the hands of governments in future health crises.” The Alliance released the statement in response to the International Federation of Pharmaceutical Manufacturers & Associations’ (IFPMA) July statement titled the Berlin Declaration – Biopharmaceutical Industry Vision for Equitable Access in Pandemics during the World Health Summit, where stakeholders from politics, science, the private sector, and civil society gathered in Berlin from October 16-18.

Chinese Patent Office Plans to Crack Down on Abnormal Patent Applications

The China National Intellectual Property Administration (CNIPA) released a draft of new measures that would downgrade the ratings of Chinese patent agencies that approve abnormal or fraudulent patents. CNIPA released the draft on October 8, which expands on a trial started in January 2022 in four provinces. The draft sets out to “crack down on illegal and untrustworthy acts” carried out by Chinese patent agencies and promote a healthier development of Chinese intellectual property.

This is No Time for Another TRIPS Blunder

With all of the problems besetting us, you might think that the last thing we need right now is another give-away of critical technologies, but that could be about to happen. Negotiations are underway in Geneva over a proposal from “developing countries” that negating patent protections for our COVID-19 vaccines wasn’t good enough. Now they want to extend that foolish concession we agreed to earlier this year to any COVID therapy. You’d think it would be well understood by now that appeasement doesn’t foster gratitude, it only encourages the other side to push for more. We’ll soon see if we roll over again or not.