What are the biggest patent litigation growth areas in your jurisdiction in terms of industry sector?
Mining is among the biggest industries in Australia. During the past decade there has been a significant increase in the number of patent cases between suppliers to mining companies, many of which go through to trial.
Computer-implemented methods: the patent-eligibility of computer-implemented methods has proven controversial in Australia in recent years. Prominent cases are currently pending in the appellate levels of the Federal Court and it is hoped they will provide increased certainty to the industry and patent practitioners.
Biologics, biosimilars, antibodies and other new therapies: there is an increasing volume of patent cases in which they are being litigated to test aspects of patent law and procedure.
Life sciences continues to be the most important industry sector in Austria. In particular, we see more and more patents covering biologics being litigated.
Moreover, we observe a growing trend of activity in the automotive sector, in particular in the field of electric cars and automated driving. Artificial intelligence continues to be an area of interest, but no litigation is seen in this area so far.
Pharmaceutical Industry and Telecom Industry.
Changes in September 2017 to the Patented Medicines (Notice of Compliance) Regulations, which relate to pharmaceutical products in Canada, ended the dual litigation procedures available to innovative drug companies whereby they could first bring a proceeding seeking Health Canada to refrain from issuing a Notice of Compliance for a generic product and if unsuccessful bring separate patent infringement proceeding. Now, an innovative drug company can seek all relief only via a single, patent infringement proceeding. In view of these changes, the number of pharmaceutical patent infringement actions is expected to increase.
It is also expected that other recent changes in Canadian patent legislation and practice will result in growth opportunities in patent litigation across all industries. In particular, as discussed above, the Federal Court appears to be increasingly willing to consider interlocutory relief such as interlocutory injunctions, as well as summary relief including summary judgement or summary trial
Growth of patent disputes in the field of communications and daily family life grow are biggest in China.
The move to electrically powered cars is likely to play a role given the large automotive industry sector in the Czech Republic.
In France, there is an increase of patent litigation in life sciences and telecoms sectors.
Important fields of patent litigation include Standard Essential Patents (SEPs), particularly in the sector of Mobile devices, the automotive industry and connected cars as well as the pharmaceutical and medical device industries.
The biggest patent litigation growth areas in Greece have been over the past decade and continue to be life sciences and technology. Pharmaceutical litigation is estimated to a 70% of Greek court decisions involving patents.
Pharma, Telecommunications, Software etc.
Many of the major global pharmaceutical/biotech and medical device companies have set up manufacturing operations in Ireland. The consequence of this is that Ireland has become an important jurisdiction for patent litigation in Europe with a significant increase in patent litigation, particularly relating to pharmaceutical/biotech and medical devices.
Two industry sectors are predominantly responsible for much of the patent litigation in Israel in recent years: the pharma industry (mostly local generic-global innovator disputes but with a growing presence of biosimilar litigation between the major pharmaceutical companies) and the defence industries.
Akin to what happened with the introduction of generics in the early 2000s, the coming of biotechnologies and the consequent market success of biological medicinal products and their biosimilars resulted into a boost of pharmaceutical litigation in recent times and it seems there is still room for growth in this field. Electronics and FRAND related litigation is also expected to grow, partly as a result of the SEP industry’s global trend of shifting towards new industry sectors (i.e. automotive and IoTs) as well as of the approach Italian courts are adopting following the CJEU case law in Huawei (C-170/13), which seems to be less stringent on SEP holders than in other EU jurisdictions.
No specific industrial field presents a noticeable growth among such patent lawsuits.
The biggest patent litigation growth area in Norway is technology relating to the aquaculture industry.
Traditionally, Poland with the relatively easily granted preliminary injunctions, remains an attractive forum for pharmaceutical innovator companies. Although we are now seeing more and more mechanical patents being enforced, the majority of cases pursued throughout all instances still concerns pharmaceutical patents.
Pharmaceutical and electronics/software.
The patent litigation in Russia most often happens in pharmaceuticals, industrial machinery, food technology and electronics.
It is likely that patent infringement of pharmaceutical drug patents that fall under the definition of a therapeutic product under the Health Products Act (Chapter 122D) will continue to be a large part of patent matters in Singapore. As stated in the answer to Question 23 above, applicants that are looking to register their therapeutic products are required to notify the proprietor (of the patent that its application relates to) of its intended application. Upon receipt of such notice, the patent proprietor must apply to the Court for an order restraining the application within 45 days, otherwise the Health Sciences Authority may proceed to register the same.
Further, due to the predicted increase in patent applications relating to Fintech and Artificial Intelligence, these are also areas which are forecasted in the near future to contribute significantly to patent litigation in Singapore.
As part of Singapore’s increased efforts to promote an ecosystem for innovation in its financial services sector and to support its shift towards a digital economy, IPOS has recently launched the FinTech Fast Track (April 2018) and Accelerated Initiative for Artificial Intelligence (April 2019) programmes to expedite the application-to-grant process for Fintech and AI patent applications respectively.
The financial services sector has clearly responded to Singapore’s technological climate. There have been 92 FinTech patent publications filed as of 27 Oct 2018, which surpassed the 83 publications in the preceding year. A greater increase may follow this year, as FinTech-enabled businesses seek to leverage on the expedited application-to-grant process under the FinTech Fast Track programme, before its stipulated end-date in April 2020.
Conventional areas of patent litigation in the pharmaceutical, healthcare and manufacturing industries continue to feature strongly in the Singapore landscape.
With the highly developed semiconductor manufacturers headquartered in Korea, the semiconductor-related sector including the semiconductor equipment industry and related chemical industry has been the most contentious industry sector. Further, the pharmaceutical industry has seen a big increase in patent disputes, after Korea adopted the patent-approval linkage system in 2015. In addition, recently we have seen a notable increase in the bio-health sector.
Life sciences have been the most litigated area and continues to be so.
Pharmaceuticals will remain an important industry sector for patent litigation. Further, the changes recently introduced to the Patents Act in the course of the revision of the Therapeutic Products Act (paediatric SPCs) provide potential for litigation. Also, possible consequences of the new medical activity exemption on patents for a second medical indication may spur litigation.
Overall, one of the biggest patent litigation growth areas in Taiwan in terms of industry sector is the biotechnology industry, including the pharmaceutical industry. This reflects the policy direction that the Taiwan government has actively promoted in recent years. As the industry continues to grow, more and more new drugs and new medical materials enter into market, local and global.
Many international biotech companies have also developed patent portfolios in Taiwan. This situation has led to an increasing number of patent litigation disputes in Taiwan.
Given that we are in the golden age of innovation, life sciences and technology are most likely to be the subject of litigation on a regional or global scale.
In this respect, the following sectors are developing considerably, and thus the number of cases in these sectors may increase:
- Artificial Intelligence
- Internet of Things technologies
- Biologics and biosimilars
- Personalized treatments including the combination of a pharmaceutical and medical device
- Second medical use patents
Telecoms – the decision of Birss J in Unwired Planet v Huawei, in which the Court granted an injunction against Huawei unless it agreed to take a global licence for Unwired Planet’s standard essential patent portfolio, has precipitated an increase in litigation in the telecommunications sector in particular by SEP holders seeking the determined of global licence rates within a single forum (e.g., Conversant Wireless Licensing SARL v Huawei Technologies Co. Ltd & Ors  EWHC 808 (Pat); Koninklijke Philips NV v Asustek Computer Incorporation & Ors  EWHC 1224 (Pat); TQ Delta, LLC v ZYXEL Communications Ltd & Anor  EWHC 562 (Pat)).
Biologics – the UK continues to see a strong flow of complex biologics cases in the courts. Biologic products now comprise the majority of the top selling medicines globally and recent times have seen an increase in originator-biosimilar litigation (e.g. Pfizer Ltd v F. Hoffmann-La Roche AG & Anor  EWHC 1520 (Pat) (in relation to bevacizumab)) as well as originator-originator litigation (e.g. Takeda UK Ltd v F Hoffmann-La Roche AG  EWHC 1911 (Pat) (in relation to vedolizumab); Eli Lilly And Company & Ors v Genentech, Inc  EWHC 387 (Pat) (in relation to ixekizumab)) and even biosimilar-biosimilar litigation (Samsung Bioepis & Biogen v Fresenius Kabi (in relation to biosimilar adalimumab formulations)).
Arrow Declarations – seeking Arrow declarations in the UK (discussed in Question 27 above) may become an increasingly popular tactic for implementers looking to obtain FTO and increased commercial certainty in technology areas with crowded patent landscapes and sophisticated claim amendment and divisional filing strategies (e.g. biologics).
In recent years, the technological fields with the most patent litigation have been (from most to least) consumer products, biotech/pharmaceutical, computer hardware and electronics, software, industrial and construction, medical devices, telecommunications, business and consumer services, automotive, and chemical. Specific emerging areas of technology that may see more litigation in the future include cybersecurity, artificial intelligence/machine learning, autonomous transportation, machine vision, and robotics.
Disputes in the pharmaceutical sector have been rapidly developing in recent years. Vietnam is home to more than 90 million people. With its large population and an expanding economy, the country has become an attractive market for pharmaceutical companies. Since local drug producers have not yet acquired sufficient research and development capabilities, they fight an uphill battle against international drug innovators. Under the circumstances, a number of local companies have resorted to patent infringement in an attempt to regain market share.