What will shape the future of IP practice?
The year of 2021 was marked with significant cases in the intellectual property field in different parts of the world that will influence the rest of the IP world in the nearest decade, if not longer. Below is the selection of 5 that, in my opinion, will help to shape the future of IP practice.
YES to Unitary patent
On 9 July 2021, the German Federal Constitutional Court announced the rejection of two applications for a preliminary injunction against the German Act of Approval to the Agreement on a Unified Patent Court (UPCA). The decision opens the door to the implementation of the Unitary Patent and UPC. The unitary patent was discussed for more than 20 years already and now it is likely that it will become the reality in 2022. It is said that the Unitary patent will increase legal certainty, reduce administrative burdens and cut costs. These will all contribute to the promotion of innovation and technology transfer, and bring much-needed capital investment in R&D as well as help to rebuild economies after the COVID-19 pandemic.
I want my damages here!
On 21 December 2021 the European Court of Justice in case Gtflix Tv v DR. opened the door to the litigation for damages made by online infringements anywhere in the EU where the damage was made. The court ruled that a person who, considering that his or her rights have been infringed by the dissemination of disparaging comments concerning him or her on the internet, seeks not only the rectification of the information and the removal of the content placed online concerning him or her but also compensation for the damage resulting from that placement may claim, before the courts of each Member State in which those comments are or were accessible, compensation for the damage suffered in the Member State of the court seized, even though those courts do not have jurisdiction to rule on the application for rectification and removal. This will allow protecting one‘s rights in a more efficient and economical way and, probably, cause more court disputes.
AI is not an author
On 21 December 2021 in DABUS case The Legal Board of Appeal of the EPO confirmed that under the European Patent Convention (EPC) an inventor designated in a patent application must be a human being. Thus, it is officially confirmed that AI cannot be an inventor. These decisions will impact the AI world as the companies will not get protection for the inventions created exclusively by AI tools. They say it will lower the investments into AI development. But let‘s see.
NO to private „seeding“
17 June 2021 the CJEU in Mircom International Content Management & Consulting (M.I.C.M.) Limited v Telenet BVBA case ruled that the action by an internet user who has subscribed to BitTorrent sharing software, thereby consenting to its application having been informed of how it works, does indeed constitute a “communication to the public”, which means that even individual who participates in illegal „seeding“ process of the copyrighted product can be considered as the infringer of the copyright. This decision opens the door to the responsibility of the natural person for content-sharing activities and better rules for enforcement of the IP rights.
More fair use?
On April 5, 2021, the Supreme Court of the United States issued the decision in „copyright case of the century“ GOOGLE LLC v. ORACLE AMERICA, INC., setting a precedent for copyright and fair use in information technology that could have a far-reaching impact. The court ruled in favor of Google, which copied part of Oracle’s computer code to support its Android platform, asserting that Google’s actions were within the limits of fair use. This decision opens the door to a broader interpretation of „fair use“ that would allow more uncomplicated use of copyrighted products in other‘s products.