UK regulator publishes update on dynamic pricing project and “top tips” for businesses using dynamic pricing

By Carlton Daniel and Paul Jinks on July 11, 2025 Posted in Competition and Markets Authority, UK

In November 2024 the Competition and Markets Authority (CMA) announced a project to consider how and when dynamic pricing is being used across different sectors of the UK economy and how that may affect consumers and the wider economy/competition in the UK market [Dynamic pricing project – GOV.UK].

This project is not an enforcement investigation and the CMA has stated it is not being undertaken with the objective of identifying breaches of competition or consumer protection law rather, the aims of the project are to:

support the CMA, government and other stakeholders’ understanding of dynamic pricing and how it can affect consumer outcomes;

help businesses by highlighting how transparency around dynamic pricing can help to support consumer trust, confidence and engagement; and
inform wider consideration by policymakers of the issues associated with dynamic pricing.

On 20 June 2025 the CMA published an update on this project, summarising the key conclusions which it has reached to date [Update: dynamic pricing – GOV.UK] alongside some “top tips” for businesses which make use of dynamic pricing [Tips for businesses using dynamic pricing – GOV.UK].

All Roads Lead to Rome at the USPTO

By Victoria Smith and Frank Bernstein on July 10, 2025 Posted in Intellectual Property, IP Litigation, Patent Litigation, Patents, USPTO

Since the iRhythm IPRs on which we blogged recently, there have been two more (actually, many more) decisions that are leaving petitioners scratching their heads. In Dabico, the Acting USPTO Director discretionarily denied an IPR petition because of “settled expectations,” the same rationale as in iRhythm. The Acting Director went further and criticized the petitioner for not making more arguments against discretionary denial than the patent owner advanced for discretionary denial. In Ericsson, the Acting Director discretionarily denied an IPR petition because the patent owner had dismissed the patent from the underlying litigation.

Petitioners must be feeling whipsawed. iRhythm and other decisions since then, such as Cambridge Industries, penalize petitioners for waiting to be sued on a patent before filing an IPR, even though the petitioner would have had no reason to worry about the patent before being sued. Yet Ericsson penalizes a petitioner for pursuing an IPR on a patent that the petitioner is (no longer) worried about. Petitioners effectively are encouraged to file more IPR petitions, against every potential threatening patent, rather than just the one(s) on which the petitioner is sued. The Acting Director also encourages petitioners to make third-party prior art submissions to the USPTO, creating more work for examiners, rather than reducing their workloads. Dabico piles on petitioners by penalizing them for not anticipating everything the Acting Director might say about discretionary denial, independent of any of the patent owner’s arguments. All the roads that the Acting Director is opening to decrease USPTO workload appear to lead to greater USPTO workload.

What are petitioners to do?

Driving towards the legalisation of fully autonomous vehicles in the UK

By Simon Jones on June 18, 2025 Posted in Artificial Intelligence, Europe, Technology, UK

As many will know, the Autonomous Vehicle Act 2024 (the “AV Act”) paved the way to legalising the use of autonomous vehicles on UK roads. However, before any autonomous vehicles can be used on the UK roads (other than under controlled trials), it is important to be aware that the AV Act does not, at this stage, authorise those vehicles for use on the UK’s roads. Rather, the AV Act grants the Secretary of State the power to authorise this at a later date once the “safety principles” for such usage have been determined.

On 10 June 2025, the Secretary of State launched a call for evidence and consultation on the secondary legislation which will be required to establish these “safety principles”:

The Court Can Wait; The Patent Office Cannot

By Frank Bernstein and Victoria Smith on June 16, 2025 Posted in FDA, Food and Drug Administration, IP Litigation, Patent Litigation, Patents, PTAB, US, USPTO

In a set of astonishing identical Director Review decisions, the Acting USPTO Director discretionarily denied five IPR petitions whose proceedings would have concluded over seven months before the underlying patent infringement suit would have gone to trial. The Acting Director reasoned that the petitioner waited too long to file its IPR petitions because, even though it knew about the patents years earlier, the petitioner waited until after the patent owner sued for infringement to file the petitions. Never mind that the patent owner waited almost as long to sue the petitioner after the petitioner’s products received FDA approval.

European Commission kick starts overhaul of EU telecom law

By Wolfgang Maschek and Francesco Liberatore on June 16, 2025 Posted in EU Commission, Europe, France, Germany, Spain, Telecoms

“Look, if you had one shot or one opportunity to seize everything you ever wanted in one moment, would you capture it or just let it slip?” asks Eminem in his song “Lose Yourself”. This year might provide just one of those once-in-a-life time opportunities for EU telecom law.

Many stakeholders have been calling for a reform of EU telecom law for some time, venting their frustration at the EU legislature. Earlier this month, finally, the European Commission launched a public call for input on the review of the EU Electronic Communications Code (EECC) and the adoption of a new Digital Networks Act (DNA), which could replace the EECC (and other regulatory instruments) entirely.

UK regulator has fake reviews in its sights

By Carlton Daniel, Paul Jinks and Ailin O'Flaherty on June 11, 2025 Posted in Advertising, Brand Protection, Competition and Markets Authority, Consumer Law, e-Commerce, Intellectual Property, IP Litigation, Marketing, Social Media, Technology, UK

The Digital Markets, Competition and Consumers Act 2024 (DMCCA) [Digital Markets, Competition and Consumers Act 2024] has both increased consumer protection rights in the UK and the enforcement powers of the main consumer regulator, the Competition and Markets Authority (CMA) which for the first time has been granted wide-ranging powers to investigate suspected breaches of consumer law and unilaterally impose significant fines. Prior to the DMCCA the CMA had to go via the courts for a business to face fines, a power that was exercised infrequently [A New Era for Consumer Law and Regulation | Global IP & Technology Law Blog].

One of the many areas in which the DMCCA has increased and clarified consumer protection rights are fake reviews and reviews which conceal the fact that they have been provided in return for an incentive (whether monetary or otherwise) (banned reviews). The new rules apply to banned reviews however those are made available, whether online or otherwise.

Ad restrictions on HFSS products in the UK to now take effect on 5 January 2026, with voluntary compliance from advertisers and broadcasters from 1 October 2025

By Carlton Daniel, Nicola Smith and Natasha Maric on June 6, 2025 Posted in Advertising, Consumer Law, Intellectual Property, UK

The authors wish to thank Royce Clemente for his contribution to this post.

The UK Government has delayed the implementation of the Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024 (“Regulations”), which were due to come into force on 1 October 2025, in order to explicitly exempt ‘pure brand’ advertising from the Regulations. The Regulations will now come into force on 5 January 2026. However, despite this delay, advertisers and broadcasters have voluntarily committed to complying with the restrictions from 1 October 2025 (as originally planned).

In a letter addressed to the Government, representatives from the advertising industry stated their commitment not to run ads for specific, identifiable less healthy food or drink products. The letter was signed by key advertising bodies, such as the Advertising Association, ISBA, the IPA and IAB. The letter was also signed by major media organisations and broadcasters, including Channel 4, ITV, Sky and Reach plc, along with the Food and Drink Federation.

$222M Jury Verdict Against Walmart in Trade Secret Case Reflects Growing Trend

By Steven Auvil and Ronald Lemieux on June 3, 2025 Posted in Intellectual Property, IP Litigation, Judiciary, Patents, Pharma, Trade Secrets, US

Monetary awards in trade secrets cases continue to grab headlines in 2025. As reported in this recent blog post, a Boston jury awarded a medical device company $452M for theft of trade secrets by a competitor, later reduced to $59.4 in exchange for a permanent injunction. Last month, an Arkansas jury found Walmart liable for trade secret misappropriation and awarded $222M to the plaintiff, Zest Labs, a provider of technology solutions for tracking food freshness. And then there is the $2.036 billion jury award in favor of Appian Software against Pegasystems that was vacated by the Virginia Court of Appeals in 2024 but was granted review by the Virginia Supreme Court just a few months ago. These awards are part of a growing trend of very large monetary awards in trade secrets cases.

Getting trade secrets cases to trial and winning on the merits is arguably easier than in patent cases. One of the main reasons for this belief is that patent infringement cases involve case-dispositive legal issues that courts decide pre-trial: the meaning and scope of the claims and whether claims are sufficiently definite. Many patent cases never get past this Markman stage. While courts in trade secrets cases often must decide whether the asserted trade secret is sufficiently identified to present to a jury, the plaintiff is frequently given several opportunities to fix its articulation of the secret before trial. By contrast, patent claims cannot be fixed during litigation. Moreover, given their fact intensive character, trade secrets cases often have an easier road to trial than patent cases, and strong narratives often emerge from these cases that involve related claims for breach of contractual secrecy obligations and civil conspiracy. A Stout 2024 report pegs trial win rates for plaintiffs bringing trade secret claims in federal court at 84% since 2017, with juries awarding some form of monetary damages in 78% of the cases.

Call It Out When You Think the Examiner Has Overlooked Prior Art

By Frank Bernstein on May 23, 2025 Posted in Intellectual Property, IP Litigation, Patents, PTAB, USPTO

The patent statute 35 U.S.C. § 325(d) allows the USPTO Director to deny institution of an IPR when “the same or substantially the same prior art or arguments previously were presented to the Office.” In IPR practice, relying on prior art that already had been before the PTO is perfectly acceptable. Under the 2020 decision in Advanced Bionics, LLC v. MED-EL Elektromedizinische Geräte GmbH, however, a petitioner must justify the reliance by demonstrating that the PTO made a mistake that is material to the patentability of claims being challenged.

The recent case of Ecto World, LLC and SV3, LLC v RAI Strategic Holdings, Inc. presented a situation in which there were questions of whether a PTO Examiner had considered the prior art on which the petitioner was relying in its IPR petition, and whether the Examiner had made a material mistake. The USPTO Director’s May 19, 2025 decision, reconciling different decisions from different PTAB Boards, sheds interesting light on both questions.

New Procedural Rules for Trade Secrets in Germany

By Rebecca Duecker on May 20, 2025 Posted in Copyright, Europe, Germany, Intellectual Property, IP Litigation, Judiciary, Trade Secrets

On April 1, 2025, the Act to Strengthen Germany as a Location for Justice—formally titled Justizstandort-Stärkungsgesetz of October 7, 2024 (Federal Law Gazette 2024 I No. 302)—entered into force. This legislation aims to enhance Germany’s attractiveness as a venue for international commercial litigation by, among other things, establishing commercial courts and permitting the use of English in civil proceedings.

To strengthen the protection of trade secrets, the new law amends both the German Code of Civil Procedure (ZPO) and the Introductory Act to the Code of Civil Procedure (EGZPO). These changes respond to a growing practical need for stronger procedural safeguards for trade secrets across a broader range of legal disputes.