Consumer law and regulation has been thrusted into the limelight in recent months. The main reason for this is the introduction of the Digital Markets, Competition and Consumers Act (DMCC Act), which received Royal Assent on 24 May 2024. The changes introduced by the DMCC Act are significant and will result in both increased consumer rights protection, and a strengthened enforcement process which seeks to crack down on unfair practices. As a result, the regulatory risk in the business-to-consumer space is likely to rise quite significantly.
As noted in our related blog, only a small percentage of issued patents are ever asserted to be infringed with the filing of a lawsuit, even when infringed. Why? Because patent litigation is notoriously expensive and it’s risky for patent owners, as patent challengers more-often-than-not win and can invalidate the patent claims. Despite the costs and the risks, patent litigation is not ― as many may think ― akin to boarding a runaway train. Rather, patent litigation often serves as a mechanism for parties to spar and evaluate the patent rights, as well as each other, prior to making the business agreements that settle such disputes.
So what do litigants need to know about the interface between litigation and its settlement? Understanding the stages of patent litigation, as discussed in our related blog, is essential. As discussed here, such understanding can empower litigants to proceed strategically and leverage events at the key stages of the litigation to resolve the dispute with a private settlement agreement.
The number of patents issuing each year has increased dramatically since the Patent Act of 1952 codified US patent law — from fewer than 50,000 patents issued per year to around 350,000 patents issued per year for the last decade. Yet over the last decade, the number of patent litigations filed has fallen to fewer than 3,500 each year. By any metric, an extremely small percentage of patents are ever asserted. While cost and risk are factors, many patent owners and accused infringers shy away from patent litigation, perhaps due in part to a lack of information about its conduct and resolution. We provide here an introduction and brief overview.
As trademark owners it is vital to not only use your registered trademark in a serious and thus rights-preserving manner, but also continuously take care to obtain and secure evidence of a rights-preserving use. Proof of use can become significant at various stages in the life cycle of a trademark. Focusing on revocation actions by third parties, the European General Court has recently underlined again that EU trademark law operates on the straightforward principle of “use it or lose it” and that a trademark no longer in the five-year grace period, no matter how well-known, may be vulnerable to be revoked for non-use if its owner does not provide sufficient evidence of use. Whilst well-known trademarks are also protected as non-registered trademarks, maintaining trademark registrations is crucial for efficient enforcement by national courts and public authorities such as customs and the police. This blog should serve as a crisp reminder for trademark owners on why proof of use having ready can be decisive for the protection of your brand.
The Summer 2024 Olympics in Paris are underway and while millions of eyes are on the games, the United States Olympic & Paralympics Committee (“USOPC”) has its eyes peeled for trademark infringers.
The USOPC serves both the National Olympic Committee and National Paralympic Committee for the U.S. and is responsible for the training and funding of the U.S. Olympic, Paralympic, Youth Olympic, Pan American and Parapan American teams. It owns numerous trademarks, the licensing of which is critical for its funding of the U.S. Olympic Team.
The USOPC recently sued US beverage company Prime Hydration (“Prime”) for alleged trademark infringement in the United States District Court for the District of Colorado. According to the USOPC’s complaint, Prime used Olympic-related terms and trademarks such as “OLYMPIC,” “OLYMPIAN,” “TEAM USA,” and “GOING FOR GOLD” on beverage product packaging, internet and in store advertising and social media promotions without the USOPC’s consent. Pursuant to the Ted Stevens Olympic and Amateur Sports Act, 36 U.S.C. § 220506 (the “Ted Stevens Act”), the USOPC has exclusive rights to commercially exploit certain marks and symbols related to the Olympics in the United States, including the symbol of the IOC, “consisting of 5 interlocking rings,” the word “Olympic,” and “any trademark, trade name, sign, symbol, or insignia falsely representing association with, or authorization” by the IOC, “the International Paralympic Committee, the Pan-American Sports Organization, or the [USOPC].”
The U.S. Patent and Trademark Office continues to seek stakeholder input on AI-generated disclosures and patentability. Earlier this year, USPTO issued a public Request for Comment on the impact of artificial intelligence on prior art, the known understanding of a person of ordinary skill and how this effects patentability, specifically novelty and obviousness of a claimed invention. Additionally, the Office is hosting a listening session on these topics virtually and in person later this summer. The inquiries are significant and potential rule changes at the USPTO could completely upset the apple cart. In short, if AI-generated prior art is deemed known to the person of ordinary skill and can be used to destroy patentability, the role of novelty and non-obviousness from a human perspective may be minimized. We explore here the potential consequences of AI for our assessments of human invention.
The Impact of AI on Prior Art
AI can be used to explore multiple seemingly infinite permutations of inventive concepts. If AI-generated permutations that pre-date what would otherwise be a patentable invention are deemed to be prior art, the potential for patenting of human ingenuity may be whittled away.
For many years, it has been possible to obtain registered IP protection for the designs of products that have visual appeal in the Member States of the EU. Separately, this is also the case in the UK. The resulting registered industrial design rights have become a valuable and powerful legal tool in every company’s IP strategy although this form of protection is still underused by many companies.
After more than twenty years, the industrial design protection system in the EU was ready for a revamp to make design protection in the digital age more efficient, affordable and future proof (we had commented on the draft proposals adopted by the EU Commission on this blog here). The long-awaited new EU Design Regulation and Directive are now expected to be formally adopted by the EU Council and published shortly. The new EU Design Regulation will then enter info force after four months, and EU Member States will have three years to transpose the Directive into their national laws. In this blog, we will focus on the key changes introduced by the new law.
On 15 May 2024 the UK Supreme Court handed down its judgement in the case of LifestyleEquities v Ahmed (Lifestyle Equities C.V. and another (Respondents) v Ahmed and another (Appellants) – The Supreme Court) clarifying the law on the personal liability of individuals who (unknowingly) assist another (the Primary Infringer) to infringe a registered trade mark and raising the bar for trade mark owners looking to pursue such personal liability claims.
Background
Whilst the hearings which preceded this case involved a number of different trials and parties, the basic facts relevant to this Supreme Court judgment were relatively straightforward: between 2008 to 2018 Hornby Street Limited (the Company) had sold, mainly to retailers in the UK, clothing bearing various “Santa Monica Polo Club” logos. Lifestyle Equities are the owners of a various registered trade marks for “Beverely Hills Polo Club” in the category of clothing and successfully pursued trade mark infringement proceedings against the Company on the grounds of a confusing similarity between its registered trade marks and the “Santa Monica Polo Club” logos used by the Company.
In a May 10, 2024, Notice of Proposed Rulemaking (NPRM), the USPTO proposed sweeping changes in the rules governing the filing of terminal disclaimers. If the USPTO implements the proposed changes, entire patent families could be wiped out if just one claim of one patent in the family is found invalid over prior art. Patent owners could have a lot more to worry about than just preserving common ownership of terminally disclaimed patents. The public hue and cry thus far have been significant. Here, we discuss why.
Every single word matters. Nowhere was this truer than when the Federal Circuit recently held, in an appeal from the Patent Trial and Appeal Board captioned Pacific Biosciences of California, Inc. v. Personal Genomics Taiwan, Inc., that an apparatus for identifying a single biomolecule meant examining one biomolecule alone and not inferring its identity from an ensemble of copies. The court’s opinion provides a valuable lesson for patent practitioners as well as owners and potential challengers of patents.
Pacific Biosciences of California, Inc. — known as “PacBio” — filed two inter-partes reviews against U.S. Patent 7,767,441 B2 (“the ’441 patent”), which issued to Personal Genomics Taiwan, Inc. — referred to here as “PGT”. PacBio was successful in one (IPR2020-1163, “the ’1163 decision”), invalidating claims 1‐6, 9, and 43‐58 of the ’441 patent as anticipated by, or obvious over, a PCT publication known as “Choumane,” and unsuccessful in the other (IPR2020-1200, “the ’1200 decision”).
