November 29, 2018
Once article 50 was filed, most of the reassurance sought was for what Brexit would mean in terms of immediate impact. The answer was not a lot, but as negotiations have gone on, talk has turned increasingly to what a deal would look like, or whether the UK would take such a deal. From an IP standpoint, that leaves some aspects rather uncertain. Finnegan recently published this overview, which explains the UK’s position in the case of a no-deal Brexit.
Why it Matters
The government has assured that “all existing registered EU trademarks and registered Community designs will continue to be protected and enforceable in the UK by means of providing an optional equivalent UK trademark or UK design registration” and that applications pending at the point of exit will be given a 9 month period to refile in the UK. This will involve some additional costs but does also mean that anyone seeking to protect trademarks in the UK via the Madrid/Hague systems will be dependant upon the terms of any deal. Similarly, unregistered designs will continue to be enforceable and protected, and will be superseded by a mirrored piece of legislation if necessary. Copyright from the UK will be unenforceable in the EEA, which the authors speculate could mean UK consumers may see online content restricted when in the EU. Geographical Indications legislation will also be mirrored, but it may be the case that UK producers will need to apply for EU collective marks to remain protected in the same way as the EU offers. Crucially, exhaustion of rights will remain unchanged.
None of these points address concerns about the unitary patent scheme and the issues surrounding ratification, but in the short term, it looks like no deal will only cause small changes.
The explosion of the smartphone changed the landscape of tech, but with it came many complexities around IP that would have been very difficult to foresee. The rise of NPEs, the growth of patent pools, and the litigation wars have changed IP enforcement. Now, other rising areas of tech have much to look out for in case similar events unfold, as discussed in detail by IAM for the case of life sciences
Why It Matters
Life sciences, as was the case for some smartphone technologies, has much innovation stemming from research coming from universities. One of the sources of patents used by NPEs against smartphone companies was also from universities, and this could be a development to watch out for and to try and learn countermeasures from.
Another tech development which could be problematic is that of FRAND licensing rates. In life sciences, the established rule of “pay for delay” settlements, where manufacturers of generics can get access to drugs from innovators by paying a fee out of court. In the aftermath of cases like Huawei v ZTE, where the exact calculation of the FRAND licensing rate became a central issue, this model could get broken by complicating the rate calculations.
A final piece of a similar magnitude is that of patent pools. This is particularly important since CRISPR already has a patent pool associated with it, and if this is successful then it is highly likely other technologies could end up with patent pools associated with them.
Learning the lessons from how these instances played out in the tech industry will prove educational for players in the life sciences field who may be facing the same challenges tech did.
Tech blogs and magazines love trying to find hints about upcoming tech. As a result, many articles get covered based on newly published patent filings from tech’s big players in an attempt to uncover features on soon-to-be-released products. However, in the case of patents, it isn’t always as easy as that and sometimes can lead to a misinterpretation of the intended applications of an invention.
Why it Matters
In games, it appears that retro is very exciting. That was certainly the feeling when many sources published excited previews of a new “game cartridge” coming from Sony, which fed speculation for a new handheld gaming device. This would have been a major break from Sony’s established traditions of using discs. However, the design patent under discussion didn’t actually give details about how it would function, and it was only when someone reviewing Sony’s existing products spotted the exact design in use in Sony’s Toio toy platform, and that tech publications had instead been taught a lesson in how a company could possibly use their IP strategy to mask their innovations and purposefully mislead competitors.