UK regulator has fake reviews in its sights

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.

UK Government Publishes New Software and Cyber Security Codes of Practice

By Paul Jinks on May 15, 2025 Posted in Cybersecurity, Data Breach, Data Protection, Europe, Intellectual Property, Internet, Privacy, Technology, UK, US

As cyber security continues to make be headline news it is timely that on 7 May 2025 the UK government published a new voluntary Software Security Code of Practice: Software Security Code of Practice – GOV.UK

This Code is designed to be complementary to relevant international approaches and existing standards and where possible reflects internationally recognized best practice including as outlined in the US Secure Software Development Framework (Secure Software Development Framework | CSRC) and the EU Cyber Resilience Act (Cyber Resilience Act (CRA) | Updates, Compliance, Training).

Compelling Rationale for Producing Proprietary Products in U.S. Found in USTR’s Special 301 Report on IP Protection and Enforcement Abroad (Part I)

By Steven Auvil on May 13, 2025 Posted in Copyright, Counterfeiting, Cybersecurity, Intellectual Property, International Trade Commission, Trade Mark, Trade Secrets, Trademark Infringement, Trademarks, US, US ITC

While the current Trump Administration has based its global trade war on trade imbalances stemming from unfair trade practices of foreign countries, its weapon of choice—increased tariffs—is designed to encourage businesses to relocate manufacturing operations to the U.S., thereby boosting American employment and industrial capacity. The U.S. Trade Representative’s 2025 Special 301 Report, issued on April 29, provides an independent justification for onshoring or reshoring manufacturing, namely the failure of certain trading partners to adequately protect and enforce intellectual property (IP) rights of U.S. IP holders within their borders.

The Special 301 Report is an annual report that evaluates the adequacy and effectiveness of IP protection and enforcement among U.S. trading partners. USTR requested written submissions from the public through a notice published in the Federal Register on December 6, 2024. USTR later conducted a public hearing that provided the opportunity for interested persons to testify before the interagency Special 301 Subcommittee of the Trade Policy Staff Committee (TPSC) about issues relevant to the review. The hearing featured testimony from many witnesses, including representatives of foreign governments, industry, and non-governmental organizations.

WhatsApp? A Legally Binding Contract….

By Carlton Daniel and Paul Jinks on May 9, 2025 Posted in Contract, Cybersecurity, Intellectual Property, IP Litigation, Judiciary, Payment Terms, Technology, UK

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

In the recent case of Jaevee Homes Limited v. Mr Steven Fincham, the English High Court has handed down judgment that an exchange of WhatsApp messages between the parties formed a basic and legally binding contract, providing a reminder to parties involved in pre-contract discussions to exercise caution.

Background facts

The case centred around a contractual dispute between a property developer, Jaevee Homes Limited (“Claimant”) and a demolition contractor, Steve Fincham, trading as Fincham Demolition (“Defendant”) who the Claimant had hired to undertake demolition works. The parties exchanged WhatsApp messages in April-May 2023 regarding the work with the Claimant confirming the job via WhatsApp on 17 May 2023. On 26 May 2023, a formal subcontract and purchase order was emailed on the behalf of the Claimant to the Defendant however, it was never signed or acknowledged.

The key issue in dispute was determining the exact terms of the contract between the parties, particularly in relation to the payment terms. The Claimant argued that the terms of the written subcontract which incorporated its standard terms and sent to the defendant on 26 May 2023 were binding. On the other hand, the Defendant believed that a basic contract had been formed as a result of WhatsApp messages exchanged on 17 May 2023.

AI Circuit Breakers in Legal Contracts: A Safeguard for Business

By Samuel Tibbetts on May 8, 2025 Posted in Artificial Intelligence, Cybersecurity, Data Breach, Data Protection, Intellectual Property, Metaverse, Technology

As artificial intelligence becomes increasingly integrated into business operations, IT contracts covering the provision of AI systems are evolving to include critical safeguards. One emerging concept is the AI circuit breaker, a contractual mechanism that provides for an intervention, or override, where an AI system exhibits undesirable or harmful behavior.

When contracting for AI, businesses should look to proactively include these safeguards in their contracts to mitigate against the risks of AI-driven processes causing unintended harm.

What Is an AI Circuit Breaker?

The Potent Remedies Available Under the DTSA on Full Display in Insulet

By Steven Auvil on May 6, 2025 Posted in Designs, Healthcare, Intellectual Property, IP Litigation, Life Sciences, Life Sciences Biotech Pharma, Patent Litigation, Patents, Pharma, Technology, Trade Secrets, US

In Insulet Corporation v. EOFlow Co., Ltd. et al., after a month-long jury trial, a federal court in Boston dropped the hammer on an insulin patch pump producer for misappropriating the trade secrets of its competitor. The jury found that EOFlow, a South Korean company, its U.S. subsidiary, and several individual defendants, including former employees of Insulet, misappropriated several different categories of Insulet trade secrets. The jury awarded Insulet $452M in damages for the misappropriation, though the court later reduced that amount to $59.4M when Insulet elected to forgo the larger award in favor of a permanent injunction. The decision highlights the high risk associated with hiring former employees of a competitor to design and develop a competing product.

In many ways, Insulet depicts a common business story. Insulet saw a need to improve insulin delivery to millions of Americans suffering from diabetes. After five years of research and development and the investment of hundreds of millions, Insulet obtained FDA approval for its wearable Omnipod insulin delivery system. In doing so, Insulet overcame many technical challenges to produce a safe and effective product whereas other would-be competitors had failed.