So, it’s finally happening. At 11pm (UK time) tonight, 31 January 2020, the UK is leaving the EU – whether or not Big Ben bongs to ring out the changes. And what changes will there be on the IP front? The short answer, in the short term, is: absolutely none. EU law will continue to operate in the UK during the transition period, exactly as it currently does. The transition period will be from 1 February 2020 – 31 December 2020 unless an extension is obtained, which the Prime Minister has promised will not happen. The IP system will therefore continue as it currently does in the UK and the EU until at least the end of this year, without any disruption or changes.
Insights: January 2020
Artificial Intelligence (AI) has once again been in the news in the Intellectual Property world. Some of our previous insights have commented on AI innovation and in particular how different Patent Offices examine patentability of AI inventions. In short, AI inventions can in principle be patentable, but do have to meet the same criteria as patent applications in other fields. Patent Offices will examine all inventions following the law, case law and well established guidelines which seek to provide legal certainty for all users. However, the European Patent Office has just published its decision setting out the reasons for its refusal of two European patent applications in which an AI system was designated as inventor.
It may only be the opinion of the Advocate General but after almost a decade of fog surrounding Article 3(d) of the SPC Regulation this latest offering in Santen v INPI suggests that clarity may be about to prevail.In the past the decisions and opinions of the CJEU & Advocate General have often been criticised for their lack of clarity and applicability but this is not a criticism that can be levelled at Giovanni Pitruzzella. If the CJEU choose to follow his guidance then Neurim will be scrubbed from the record books and Article 3(d) will, once again, mean what is says.As a quick reminder, Article 3(d) of the SPC regulation states that a certificate shall be issued if:“the authorization [for the product] is the first authorization to place the product on the market as a medicinal product”The “medicinal product” and “product” are defined in Article 1 of the regulation and essentially relate to “any substance or composition presented as having curative or preventive properties with regard to human or animal diseases” and “the active ingredient or the composition of active ingredients in a drug” respectively.
The UK Intellectual Property Office (UK IPO) gave a timely seminar on Artificial Intelligence on 9th January 2020. The speakers for this seminar were the head and senior examiner of the data processing group at the UK IPO.There were no real surprises that for AI inventions to be patentable they must fit around the exclusions (set out in Section 1(2) of the UK Patents Act) as interpreted by the guidelines (see below). However, the UK Examiner’s did indicate how the nature and/or presentation of the AI invention could lead to very different results, stressing that for borderline cases they are keen to engage with applicants and listen to technical arguments for patentability.The seminar follows a report released by the UK IPO into inventions relating to Artificial Intelligence released last year. See here for our earlier report.
Driven by a variety of concerns about the environmental impact of meat consumption, animal welfare, and/or health considerations, large numbers of people are moving towards vegetarian, vegan, or “flexitarian” diets. In the last 2 years alone, demand for meat substitutes has grown by 37% in America, and by 30% in western Europe, and Euromonitor expects the market for meat alternatives in both Europe and the US to double by 2022. And with growing public awareness of the impact of intensive animal farming on global warming, this trend is forecast to go only one way.
In June 2019, the European Patent Office, Japan Patent Office, Korean Intellectual Property Office), the China National Intellectual Property Administration and United States Patent and Trademark Office, collectively the “IP5”, launched a joint task force on New Emerging Technologies and Artificial Intelligence. The task force’s first meeting was held 15/16 January 2020 in Berlin, which the European Patent Office plan to develop into a centre of expertise on Artificial Intelligence. At the first meeting, the EPO Vice-President for Legal and International Affairs acknowledged the ubiquitous nature of artificial intelligence and other new emerging technologies and the challenges that presents in intellectual property.
The recent decision from the Court of Appeal of England & Wales in Teva vs Gilead has given us a first glimpse at how a national appellant court interprets the CJEU’s latest guidance on the meaning of Article 3(a) – what is a “product is protected by a basic patent in force”? Unfortunately, I found the judgement rather disappointing. Whilst we can now say with reasonable confidence that a claim covering the optional combination of a known, specified, active ingredient with a non-specified active ingredient would not be considered to protect a combination product within the meaning of Article 3(a) [hopefully this will become clearer later!], the decision is so limited that I struggle to see how it will significantly help patent drafters, prosecutors and litigators in the future. This is all a bit of an anti-climax after the flurry of decisions and opinions from the CJEU on referrals relating to Article 3(a) including this Truvada case (C-121/17), as well as the cases relating to Prezista (C-114/18) and Januvia (C-650/17).
Revisions to the Rules of Procedure of the Boards of Appeal (RPBA) came into force on 1st January 2020. The EPO’s stated aims are to increase efficiency, predictability for the parties concerned and harmonisation in the way appeals are handled by the Boards of Appeal. Additionally, the revised RPBA introduce changes to the way cases are managed to allow the Boards of Appeal to organise their resources appropriately.
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