As technology, software and creative medias take the world by storm, intellectual property remains at the centre of many ever-evolving spheres, developing therein and increasingly affected by change. Below Lawyer Monthly gains expert insight from Mark O’Halloran, Partner at Coffin Mew, on the IP developments to look out for this year, which will undoubtedly take IP progress to the next level.
It’s easy to imagine, with all the political noise and uncertainty since the start of the year, that world affairs and global business are in a state of suspense, wondering about the next steps. The truth, of course, is that major developments already in play continue to unfold and, for the most part, are unlikely to be disrupted. This is certainly the case in the sphere of intellectual property which underlies so much of the modern economy.
Two big cases which continue their stately progress through the legal system on both sides of the Atlantic may well come to a conclusion in 2017 and establish new parameters for the design-savvy and content-hungry consumer sectors.
Apple’s long-running complaint that Samsung infringed its design patent for the iPhone originally went Apple’s way with a jury award of $399 million in damages. However, Samsung appealed to the US Supreme Court on the basis that, even if it had infringed the outer design, it should only pay damages on the profit value of the infringing component, not the entire device. The Supreme Court has agreed this is arguable and instructed the initial Federal Court to have a re-think. The final decision will be significant. If the initial jury award is confirmed, we may see device manufacturers more cautious in following design trends set by market leaders.
A good-looking device is one thing, but consumers also continue to want ready access to content without having to pay for it. Peer-2-Peer website, The Pirate Bay, has been the flagship for years in providing a platform through which users can share content, whether it’s their own or someone else’s. It has even inspired the Pirate Party which took Iceland’s election by storm late last year and was asked to form a government. But the tide has been relentless against The Pirate Bay itself with multiple shutdowns and even criminal convictions. The hole below the waterline may have been struck in early February this year in Stichting Brein v Ziggo BV and another before the CJEU.
An initial opinion by the Advocate-General determined that, once Pirate Bay were aware that users were sharing infringing material, the continued provision of the platform constituted a “communication to the public” for the purposes of copyright law, entitling the complaining rights holders to obtain injunctions against the platform itself. The final decision will be taken by the Court of Justice although, as usual, it is expected to follow the Advocate-General’s line.
Design and copyright protection isn’t just a concern in Europe and North America. Economies from Asia to Africa are also taking huge strides to develop the legal infrastructure necessary to encourage investment in home-grown IP and discourage abuse of overseas IP.
In January this year, Beijing launched the China Internet Enterprises IPR Protection Strategic Alliance with a mission statement reading “Communication and Promotion, Utilization and Protection, Innovation and Development.” The primary aim of the Alliance is to implement the government’s National IPR Strategy by helping develop laws to protect intellectual property whilst educating businesses about the importance of respecting other companies’ IPR. This will be welcome to many UK businesses which currently outsource manufacturing to China and encouraging to those businesses looking to do so.
Emerging economies continue to gear up to compete better in an IP-driven global market. The African Regional Intellectual Property Office (ARICO) will gain three new members this year (Mozambique, Zambia and Gambia) and has also joined forces with the International Confederation of Societies of Authors and Composers (ICSAC), to launch joint projects to bolster copyright protection, education and training to ensure rights holders benefit from growing demand for their content. The Brazilian National Institute of Industrial Property meanwhile expects to start reaping the benefit of recent investment in staff and procedures with a greatly accelerated process for innovators to obtain trademark and patent protection.
So, with all this activity, what’s going on with the UK and what are the implications of Brexit?
First thing to note is that the UK has announced it will ratify the Unified Patent Court Agreement following Italy’s ratification this month and possibly before German ratification later in the year. There have been rumours that Germany would refuse to ratify as a bargaining chip in the Brexit negotiation but these have been downplayed.
The government’s recent White Paper - 'The UK’s exit from and new partnership with the European Union' - gave few clues as to the direction of IP law after Brexit although indications late last year from Baroness Neville-Rolfe (then UK IP Minister) were that the UK would seek to remain a member of the system after Brexit. It may be that the government thinks the subject is too dry and technical to be of much immediate interest to the general public so there was no need to go into detail.
Many businesses will hope this is the case and, indeed, that the UK will negotiate continued participation in the EU Intellectual Property Office to protect UK participation in the system which enables EU Trade Mark and Community Registered Design systems. Some others, particularly in the biotech sector, may be less eager.
Late last year, the PM Theresa May announced an additional £2bn of government funding each year for biotech research and development and it has certainly been the aim of successive governments to make the UK a global centre for the industry. But a recent decision by the current European Patent Court that animals and plants obtained from bio-engineering cannot themselves be patented may give our Brexit negotiators pause for thought. In such a contentious and cutting-edge area, the UK may find its best bet is to go it alone. Whether that is cherry-picking too far remains to be seen.
