History does not stand still, so nor does intellectual property law. 2016 and so far in 2017 we have seen change and the indication of upheaval to come.
In respect of patents, the litigation landscape will be markedly changed by the coming into force of the Unified Patent Court (UPC) in most European countries. The UK’s June 2016 ‘Brexit’ referendum has led to delay to the commencement of the new system and uncertainty regarding the impact upon the new system of the UK leaving the European Union, but the indications are that the UPC will open for business in 2018. Questions regarding transitional jurisdiction and ‘opt-out’ remain to be resolved by the new court. Meanwhile in the US, several patent disputes have been or remain under consideration by the Supreme Court, (so far) re-steering US law towards international exhaustion and curtailing opportunities for forum shopping; such high profile guidance may in time influence legislators and courts in other jurisdictions. Ground-breaking judgments from the High Court of England and Wales may similarly have potential to pave the way for new litigation strategies in other jurisdictions: in setting a global benchmark ‘FRAND’ rate in a standards essential patent dispute; and (in another case) in declaring that a particular use of the claimant’s product would have been obvious at the priority date of the defendant’s patent family.
Patent term extension continues to challenge the courts, in particular in the US in respect of bio-similars and in Europe in respect of the much re-visited legislation concerning medicinal products. If the UK leaves the ‘single market’, there will be scope for complete review of the regime for patent term extension and opportunity to learn from models operating around the world.
In respect of trade marks, around the world the application of existing laws continues to be challenged by the evolving nature of supply chains by which infringing products reach consumers. In many countries, questions as to the responsibilities and obligations of online service providers have reached the courts. The courts in the UK, for example, have been progressive in applying principles derived in the context of copyright disputes to a much broader spread of IP infringement contexts. More broadly in Europe, the Court of Justice has tied acquired distinctiveness to understanding of language across the continent, rather than to the scope of conventional jurisdictions.
For businesses which operate, or plan to operate on an international basis, it remains essential to consider branding strategy globally, including by the development and registration of transliterations and local nicknames in ‘eastern’ markets.
Copyright laws similarly continue to be challenged by the online environment to which they may now be applied. Data released by the courts in the UK demonstrating the effectiveness of targeted blocking orders in restraining online infringement verify the utility of the continual development of existing legal remedies in this environment. In the EU, proposals to develop the law to enable a single digital market continue to progress.
For all businesses, ensuring clear and appropriate transactional arrangements are in place can assist in reducing scope for dispute with business partners. Drafting should continue to adapt to anticipated areas of change, and should now accommodate the parties’ rights and obligations in the event of UK’s expected departure from the EU, the coming into force of the UPC and the new unitary patent in Europe, and a likely consolidation of existing digital markets in Europe.