IPPro Issue 002

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The rise of AI brings tough questions

Pandora’s Box

EU copyright reform analysed

Brexit Update

Patent attorneys lay their cards on the table

Blockchain Patents

A chain reaction is in full swing

Lead News Story

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US-China trade war intensifies Patent Translations

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China has filed a complaint with the World Trade Organization (WTO) over US tariffs on Chinese goods that were imposed last month.

According to its complaint, the measures exerted by the US appear to be “inconsistent with the relevant provisions of the WTO’s covered agreements”.

Specifically, China claims that the tariffs would be in excess of the US’ bound rates and are

inconsistent with Article I.1, and Article II.1(a) and (b) of the General Agreement on Tariffs and Trade, and article 23 of the Dispute Settlement Understanding.

by denying foreign patent holders, including US companies, basic patent rights to stop Chinese entities from using the technology after a licensing contract ends.

Last month, alongside $50 billion in tariffs imposed on China, the US filed a complaint at the WTO to “address China’s unfair technology practices that run counter to WTO rules”. The US said that China was breaking WTO rules

The move sparked fears of a trade war, which are slowly being realised, as China proposes its own retaliatory tariffs, and US President Donald Trump considers $100 billion in new tariffs against China in the coming weeks.

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Contents Copyright Reform

Case Report

The EU could be opening the Pandora’s Box for copyright

Nathalie Dreyfus explains the potential for far reaching consequences as a result of US DOJ v Microsoft

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Tinder Lawsuit

The new standard in global IP business intelligence

Brexit Update

David Kurtz, partner at Constangy, Brooks, CIPA’s Stephen Jones explains the common Smith & Prophete, analyses Tinder v misconceptions when it comes to Brexit Bumble, as Ben Wodecki reports and the patent profession

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Artificial Intelligence

SEP Debate

Barney Dixon discusses artificial intelligence with assistant professor Mike Schuster of the Oklahoma state university

IP Europe brings its arguments to bear in the debate over standard-essential patents in Europe

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Acting Editor: Becky Butcher beckybutcher@blackknightmedialtd.com +44 (0)203 750 6018 Senior Reporter: Barney Dixon barneydixon@blackknightmedialtd.com +44 (0)203 750 6026 Junior Reporter: Ben Wodecki benwodecki@blackknightmedialtd.com +44 (0)203 750 6017

Blockchain Patents

Alibaba Update

Ruth Burtstall of Baker McKenzie discusses the recent spike in patents relating to blockchain

Alibaba’s Matthew Bassiur discusses the company’s recent enforcement efforts

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Designer: James Hickman jameshickman@blackknightmedialtd.com +44 (0)203 750 6021 Contributors: Ned Holmes and Jenna Lomax Marketing and Sales Support: Paige Tapson paigetapson@blackknightmedialtd.com +44 (0)203 750 6020 IP Portfolio Manager: Serena Franklin serenafranklin@blackknightmedialtd.com +44 (0)203 750 6025 Account Manager: Brenda Shanahan brenda@blackknightmedialtd.com +44 (0)203 750 6024

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Country Profile

Supported Piracy

Ben Wodecki speaks to Grant Lynds, For copyright owners, ad-supported president of the Intellectual Property piracy is the new battleground. Bharat Institute of Canada Dube and Bharat Kapoor of Strategic IP Information explain

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Publisher: Justin Lawson justinlawson@blackknightmedialtd.com +44 (0)203 750 6028

WIPO Cases

Agricultural Technology

Office Manager: Chelsea Bowles accounts@blackknightmedialtd.com

Emmanuel Harrar of IPzen explains how brands should take action against cybersquatting as WIPO cases reach a record high in 2017

Doris Spielthenner of Practice Insight discusses the recent developments and innovations in the agricultural technology area

Published by Black Knight Media Ltd Copyright © 2018 All rights reserved

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News Round-Up Microsoft announces shared innovation initiative Microsoft has launched a ‘shared innovation initiative’, aimed at helping its customers grow their businesses through technology.

The initiative is based on a set of principles designed to address co-created technology and intellectual property issues, and give Microsoft customers “clarity and confidence” regarding their work with Microsoft.

These include not imposing contractual restrictions that prevent their customers from porting to other platforms, as well as a pledge that Microsoft will contribute any licensed code to the open source projects of its customers.

Take-Two NBA fair use judgement dismissed A judge has rejected Take-Two’s request to dismiss a copyright lawsuit over the depiction of tattoos in its NBA 2K video game series.

Solid Oak Sketches, which owns the rights to the tattoos of various NBA players, including LeBron James, had sued Take-Two for the depiction of the body art featured in the NBA video game series.

Take-Two and 2K games argued that the incorporation of the tattoos falls under fair use, as the tattoos are only displayed when “specific players are selected and that even when the tattoos do appear, they only appear as small images”.

The video game developer had previously won a dismissal of statutory damages of as much as $150,000 per copyright infringement in the legal battle with Solid Oak. Solid Oak had described 2K’s use of the disputed tattoos as a way of “enthralling consumers to the realism of the games”.

In her order denying Take-Two’s motion for judgement on the pleadings, judge

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Laura Swain of the US District Court for the Eastern District of Texas said the court needed more time to understand the disputed material because of the “difficulties inherent in conducting a sideby-side comparison of the video game and the tattoos, further evidence must be considered in connection with the factintensive question of applicability of the fair use defense”.

Swain commented: “The visibility and prominence of the tattoos on screen are affected by countless possible game permutations that are dependent on individual players’ choices.”

“At this stage of the proceedings, there is no objective perspective as to how [Take-Two’s] video game is generally played, or to what extent certain game features can be or are actually utilised, that would allow this court to make determinations about the choices and subsequent observations of the ‘average lay observer,’ or about the observability and prominence of the tattoos.”

The motion for a judgement on the pleadings was denied for renewal at a later stage of the proceedings.

On top of this, customers, rather than Microsoft, will own any patents and industrial design rights that result from shared innovation work.

According to a blog post from Brad Smith, president and chief legal officer at Microsoft, technological advancements like artificial intelligence, cloud-based services and data analytics could “accelerate” business operations.

WesternGeco, the EFF said that exposing In its appeal to the Supreme Court, companies that conduct research and WesternGeco argued that under the US patent development in the US to worldwide act, it is an “act of patent infringement to damages would “discourage companies supply ‘components of a patented invention,’ from investing here”. ‘from the US,’ knowing or intending that the components be combined ‘outside of the US’ The Supreme Court agreed to hear in a manner that ‘would infringe the patent if WesternGeco’s case against ION in January such combination occurred within the US’”. and decide whether patent owners should be able to recover lost profits from infringement In its amicus brief, the EFF urged the Supreme outside of the US. Court to maintain the US Patent Act’s domestic focus, as allowing worldwide damages would WesternGeco was appealing a US Court of “overcompensate patent owners by inflating Appeals for the Federal Circuit ruling, which already large awards” and “interfere with held that lost profits arising from prohibited other nations patent systems and, in turn, combinations occurring outside of the US may encourage other nations to interfere are “categorically unavailable” in patent with US policy. Consider how such a regime infringement cases. might impact two hypothetical companies,” the brief argued, “two companies, a domestic The Federal Circuit ruling was on remand one, A, and a foreign one, B, design and test from the Supreme Court to be considered semiconductor chips and contract with a in light of the ruling in Halo Electronics v foreign manufacturer to produce their designs.

Pulse Electronics.

A patent owner claims that both companies’

testing processes infringe a patent, and demands damages for the manufactured chips on the theory that those chips’ manufacture and sale are proximately and factually caused by the infringing testing”.

It said: “Company A could be liable for a reasonable royalty on its worldwide sales.

In contrast, company B would likely only be liable for royalties on its US sales. This would effectively punish company A for conducting research and development in the US.” In a blog post, the EFF added: “Discouraging research and development in the US is exactly the opposite of what the patent system is supposed to do.”

Federal Circuit reanimates Oracle v Google The billion dollar copyright infringement lawsuit between Oracle and Google has been

“As collaboration like this between technology companies and their customers increases, so will the questions regarding who owns the patents and resulting IP. He added: “There is growing concern that without an approach that ensures customers’ own key patents to their new solutions, tech companies will use the knowledge to enter their customers’ market and compete against them—perhaps even using the IP that customers helped create.”

EFF warns SCOTUS of extraterritorial damages danger Extraterritorial damages would cause a “wide array of harms and distortions” if awarded in patent infringement cases, the Electronic Frontier Foundation (EFF) has told the US Supreme Court.

In an amicus curiae supporting ION Geophysical Corporation in its dispute with www.ipprotheinternet.com

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News Round-Up revived after the US Court of Appeals for the Federal Circuit overturned a previous jury verdict in favour of Google.

Oracle had sued Google for copyright infringement in 2010, accusing the search engine giant of illegally using Oracle’s Java APIs when creating their Android smartphones.

In May 2016, a jury at the US District Court for the Northern District of California ruled in favour of Google, declaring that its use of Java in the Android operating system was fair use.

Oracle had been seeking more than $9 billion from Google, encompassing $475 million in damages and $8.9 billion in apportioned profits from Google’s sales.

This latest ruling by the Federal Circuit will see the case return to the district court for a trial deciding how much Google should have to pay in damages.

The court found that “the parties stipulated that only 170 lines of code were necessary to write in the Java language.”

“It is undisputed, however, that Google copied 11,500 lines of code—11,330 more lines than necessary to write in Java.”

“That Google copied more than necessary weighs against fair use.”

Tim Cook to be deposed in Apple v Qualcomm Apple CEO Tim Cook will be deposed in the smartphone maker’s $1 billion lawsuit against Qualcomm.

Cook will appear in court on 27 June to provide evidence for Apple’s allegations that Qualcomm had unfairly insisted on charging royalties for “technologies they have nothing to do with”.

essential patents. The smartphone maker claimed that the more it innovated with new features, the more money Qualcomm collected for “no reason”.

Apple argued that Qualcomm had withheld nearly $1 billion in payments from Apple in retaliation for “responding truthfully to law enforcement agencies investigating them”.

Apple sued Qualcomm in January 2017, following a US Federal Trade Commission Qualcomm has denied “each and every lawsuit against the semiconductor claim stated” and filed counterclaims, company over the licensing of standard- accusing Apple of abusing its power.

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“Even assuming the jury accepted Google’s argument that it copied only a small portion of Java, no reasonable jury could conclude that what was copied was qualitatively insignificant, particularly when the material copied was important to the creation of the Android platform.”

The court noted: “If we ignore the record evidence, and assume that Oracle was not already licensing Java SE in the smartphone context, smartphones were undoubtedly a potential market. Android’s release effectively replaced Java SE as the supplier of Oracle’s copyrighted works and prevented Oracle from participating in developing markets. This superseding use is inherently unfair.”

Apple in trouble over heart monitor patents Apple has been taken to court over alleged patent infringement relating to the heart rate monitor in its Apple Watch products. Omni MedSci, a Michigan based technology startup, accused Apple of infringing patents for heart rate sensors in all series of Apple Watches.

In its complaint, filed at the US District Court for the Eastern District of Texas, Omni MedSci said that it had met with Apple representatives several times in 2014 and 2016 to discuss a partnership for its technology, but no agreement was made.

A joint operation by the Premier League and the Federation Against Copyright Theft (FACT), along with several other North Eastern English bodies, caught the two selling set top boxes that enabled their customers to view Premier League football through unauthorised access to Sky Sports, BT Sport and illegal foreign channels.

left with no service when the seller is forced to cease trading because the law has caught up with them, or their broadcast signal has been interrupted by our enforcement measures.”

He added: “We hope this verdict gets the message out that selling or using these devices is simply not worth the risk.”

Kevin Plumb, Premier League director of “The many things fans enjoy about the Premier legal services, commented: “This is a hugely League, like the ability that clubs have to significant judgment as it provides further develop talented players, to build and improve evidence that selling these devices is illegal stadiums, and to support communities, is all and can result in a prison sentence. We have predicated on being able to market, sell and seen several reports from people who have protect rights. We are pleased the courts have purchased illicit streaming devices only to be recognised that in this case.”

Trim: 92(W) x 120mm (H)

Apple was offered the chance to licence and purchase the Omni MedSci patent and patent-pending technology, but the tech giant declined. Apple then allegedly used the technology anyway.

Representatives from Apple had emailed Dr Mohammed Islam, principal of MedSci, in regards to the status of his pending patents applications, simply saying: “We [Apple] don’t wish to receive any information about any of your IP.” Omni MedSci claims that the technology giant claims they knew the scope of all four patents allegedly infringed.

Apple uses a system in its Apple Watches that use multiple light emitting diodes which Omni MedSci said directly infringed its patent for measuring heart rates.

Apple was taken to court by Valencell over similar behaviour in 2016.

Premier League set top box sellers jailed The Premier League has scored a victory in the fight against piracy with the sentencing of two sellers of illegal set top boxes.

Jason Richards and John Dodds were arrested and both sentenced to four and a half years in jail after the Newcastle Crown Court found them guilty of conspiracy to defraud. www.ipprotheinternet.com

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News Round-Up CEO of FACT, Kieron Sharp, added: “This result is an excellent example of how serious an issue illegal streaming is.” “TV boxes and sticks that allow consumers to illegally stream sports, such as Premier League matches, not only have a huge effect on the content owners and broadcasters but the thousands of people working tirelessly behind the scenes to put the sport on our screens.”

The Premier League has recently ramped up its copyright protection programme, most recently by securing a High Court blocking order that compels internet service providers to block illegal streams of Premier League matches.

Blackberry sues Snap for patent infringement

US House reps introduces STRONGER bill US House representatives have introduced a bill aimed at strengthening the US patent system.

the lowest number of regulations, but we do have the best ideas, and protecting those ideas is essential.”

The bill, brought by Republican congressman Steve Stivers and Democrat Bill Foster, is a companion to the bipartisan Support Technology & Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patents Act that was introduced to the US Senate last year.

He added: “Main Street should be just as much of an incubator for innovation as Silicon Valley, and we must ensure that these small patent owners have the same opportunity to compete in the open market.”

Foster commented: “I am proud to work with Representative Stivers to make our patent system stronger and more effective for everyone with a new idea”.

The legislation will implement reforms to the US patent system to improve administrative review proceedings at the US Patent and Trademark Office, as “From the earliest days of our country’s well as allowing the US Federal Trade history, our economy’s strength has relied Commission to target firms that take on a patent system that has allowed innovators and entrepreneurs to thrive.” advantage of startups.

The bill will “strengthen the position of the “This system has allowed businesses to US as the world’s leading innovator” to flourish, creating jobs and cementing our “protect the property rights of the inventors reputation as a world leader.” that grow the country’s economy”.

“Our current patent system, however, Stivers said the bill would “strengthen the has been weakened to the point that US’ crippled patent system As a nation, it discourages research and innovation we may not have the lowest wage rate, or rather than supporting it.”

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Blackberry has filed a lawsuit against Snap Inc over alleged patent infringement.

Blackberry claimed that Snap infringed several of its patents with the Snapchat app, including its Snap Map, Snap Ads and messaging features. According to Blackberry, Snap’s infringements have led consumers away from their products and towards Snapchat, resulting in a “substantial and underserved windfall” for Snap, as these users drive its revenue.

According to Blackberry, Snap Maps infringes Blackberry’s patent for defining action spot locations relative to the location of the mobile device. Similarly, Blackberry argued that another of their patents, which relates to advertising techniques, was infringed by Snapchat with its Snap Ads feature.

Snapchat was released in September 2011, six years after Blackberry released its Blackberry messaging app, which it said “revolutionised instant messaging”.

“The appeal and success of BlackBerry messenger led consumers to consider instant messaging functionality as an integral aspect of mobile communications, resulting today in billions of people worldwide engaging in instant messaging over their mobile device.”

Blackberry has demanded to the court that Snap reimburse them “sufficient damages to compensate for the infringement”.

Finjan files patent infringement lawsuit

Nike wins omnibus dismissal

US-based cybersecurity company Finjan has filed a patent infringement lawsuit against Carbon Black.

Nike is among nine companies that have claimed victory in a patent infringement dispute with Cellspin Soft Inc.

According to Finjan’s complaint, which was filed at the US District Court for the Northern District of California, Carbon Black had infringed patents relating to its cybersecurity technology. Carbon Black and Finjan had been attempting to resolve the dispute in good faith for two years.

In a ruling on 3 April, the US District Court for the Northern District of California granted the nine companies, which also included Fitbit, Moov, Fossil Group, Garmin International, Cannon, GoPro, Panasonic and JK Imaging, an omnibus motion to dismiss the case. Cellspin had accused the companies of infringing three data uploading patents related to the sale and marketing of fitness trackers and other electronic devices.The court dismissed the case, ruling that the three patents were not eligible under the precedent set in the US Supreme Court’s Alice Corp v CLS Bank ruling. It said that none of the claims of the three patents “represent an inventive concept sufficient to transform the claimed abstract idea into a patent-eligible application,” and that another

Finjan also has pending patent infringement lawsuits and appeals against Palo Alto Networks, Cisco Systems, and five other companies relating to, collectively, more than 20 patents in the Finjan portfolio, including those that are being disputed against Carbon Black. Finjan is seeking past damages, enhanced damages and an injunction against Carbon Black.

of Cellspin’s patents was “representative of all asserted patents”, meaning that the asserted patents were ineligible.

According to Rick Mulloy, partner at DLA Piper and lead counsel for Nike, the ruling is “important for [Nike] as it eliminates the multipatent case, but also on a broader level as it provides some additional guidance regarding the application of the Alice test and also reaffirms that it can be appropriate to resolve the section 101 issues at the pleadings stage before the parties engage in expensive discovery and other motion practice.”

He added: “Generally speaking, start-ups aren’t usually involved in patent litigation as their product offerings aren’t mature enough to generate significant revenue, but to the extent they are, it provides additional guidance regarding an important potential defence that can be asserted early in the case before significant costs are incurred.”

+33 (0) 1 84 17 45 32 contact@ipzen.com www.ipzen.com

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UDRP Decisions

Corporate Brand Services

Whose Domain Name Is It Anyway?

Facebook, Paddy Power, Deutsche Lufthansa and Red Bull have all appeared in UDRP at the World Intellectual Property Organisation and Alternative Dispute Resolution in recent months Red Bull has won the rights to an infringing domain in a World Intellectual Property Organization Arbitration and Mediation Centre dispute.

Irish bookmaker Paddy Power has recovered a disputed domain in a World Intellectual Property Organisation Arbitration and Mediation Centre dispute.

The energy drink company, who also own sports teams around the world, alleged that redbullmlsstore.com is near identical to its registered trademark for Red Bull.

Paddy Power alleged that paddypower.ro was registered in bad faith as the original registrant of the domain, Petrin Milenco Daniel, was using Paddy Power’s trademark for financial gain.

Sole panellist Nick Gardner found that the infringing domain name was registered in bad faith to mislead users into thinking that they had accessed the New York Red Bulls Major League Soccer team online store. Gardner said: “The overall impression created by the respondent’s website suggests that the disputed domain name was registered by the respondent in order to establish an online business which deceived Internet users into believing that the website was an officially approved website offering merchandise relating to the New York Red Bulls major league soccer team.”

Prior to filings its complaint at WIPO, Paddy Power had sent Daniel a cease and desist letter.

Gardner ruled that the disputed domain should be transferred to Red Bull.

Jarka said: “The fact that the disputed domain name was advertised for sale to the general public on its webpage, and subsequently changed as a result of receiving a cease and desist letter, shows that [Daniel] was not intending to use the disputed domain name in connection with a bona fide offering of goods and services, as his primary intention appears to have been to profit from the sale of the disputed domain name to the complainant.”

Deutsche Lufthansa has claimed a domain in a UDRP dispute at the Alternative Dispute Resolution Forum.

The German airline claimed ownership of lufthansaemployment.com from Frank Panno, who originally registered the domain name.

The disputed domain name diverted users to a fraudulent version of the Lufthansa website, which the airline claimed was used to phish for user’s details.

Sole panellist Bruce Meyerson found that the domain name was confusingly similar. He said: “The domain name is identical or confusingly similar to Complainant’s mark as it merely appends the generic term ‘employment’ and the generic top-level domain term ‘.com’ to the fully incorporated trademark.”

Meyerson also found that the domain was being used in bad faith and that Panno was using the domain name “in connection with an email phishing scheme for commercial gain”.

He added: “Accordingly, the panel agrees that [Panno] disrupts Lufthansa’s business and attempts to commercially benefit off the Complainant’s mark in bad faith.” Meyerson concluded that the disputed domain should be transferred to Lufthansa.

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Daniel offered the domain name up for €5 million on the attached website, but removed all content on the website after he received the cease and desist letter.

Sole panelist Beatrice Jarka ruled that the disputed domain should be transferred to Paddy Power as the domain was registered in bad faith.

Facebook has recovered three infringing domain names in a World Intellectual Property Office Arbitration and Mediation Centre dispute.

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The social networking giant alleged that facebooksupport.com, facebookusers.com and facebookworld.com were confusingly similar, if not identical, to its registered trademark.

Sole panellist Andrew Brown found that the infringing domain names were confusingly similar.

Brown said: “The disputed domain names contain as a first and dominant element [Facebook’s] world-famous trademark Facebook, combined with generic and geographical terms ‘support’, ‘users’, and ‘world’.”

He also found that the original registrant of the domains had used two of the disputed domains to send fraudulent phishing emails or to spread malware.

Brown concluded that the disputed domains should be transferred to Facebook. IPPro

US 877.983.6624 Int ++1 760.444.8674 www.101domain.services

Copyright © 1999 - 2018 By 101domain GRS Limited.

Patent Profile To identify each prescription packet, it has a built in scanner, which scans the barcode of the product, which is then matched up to the droid’s database of each product and delivered.

They can often be difficult to capture and destroy, even in early cases.

This method could greatly increase the likelihood of capturing them in the ongoing fight against cancer.

This new patent is not replacing the physician role, simply the dispenser or assistant role.

Go away Cambridge Analytica

With that, it means that the human element is still present in the pharmacy, including experienced individuals with vast medical knowledge and training that can right any wrongs caused by the autonomous assistant—if any.

Cancer treatment Japan’s Yamagata University, alongside Sumitomo Rubber Industries, has been granted a patent for a new method for capturing cancerous cells.

I love the Power Glove Oculus patents a Power Glove remake, Cancer cells could see earlier detection, Robots run pharmacies and an early machine gun feature in patents past Enter the Oasis

Hand me your prescription, you have ten seconds to comply

Oculus has been granted a new patent for a haptic glove, which will be used alongside a virtual reality (VR) headset for interacting with immersive environments.

Human pharmacy counter assistants and dispensers could be a thing of the past thanks to a new invention for an autonomous pharmacy robot from a group of US inventors.

The US patent (0081436) is reminiscent of Nintendo’s Power Glove, which was available in the 80s.

The US patent (0079083), which was developed by Neil Davey, Brendan Murphy, Sonya Davey, and Haris Godil, describes a pharmacy automation system that communicates autonomously with a physician or an assistant directly to an intermediary.

Current VR products like the Oculus Rift headset allow the user to experience VR, but limit hand and touch capabilities, only allowing slight movements and primitive tracking through its basic controller.

Oculus’s new invention fits a user’s entire hand, allows full articulation and vibration feedback, with ribbon layers that allow one to fully flex their digits.

The gloves include graphics processing units and random access memory components that allow users to store their movements, meaning the gloves can adapt to each user uniquely.

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The robot interacts with an inventory of goods and browses the inventory of goods to determine if a prescribed medication is available in the pharmacy.

If products are not in stock, or the customer requires a specific item, the robot can then process what is missing and remind colleagues to order them at a more convenient time. According the patent, the robot can aid with dispensing, prescription filing, dosset box organising, transferring of delivery and many more tasks at an efficient and accurate rate.

Cisco is looking to make group chats securer and easier through the blockchain with its latest invention.

The US patent (0091489) describes a system and method for achieving authorisation in confidential group communications.

Incorporating blockchain into messaging platforms, allows groups of people to share files or any other information, whilst keeping track of membership and who sent what, when.

The entire process would create centralised group chats that only allow authorised members to enter it.

The US patent (0088105) describes a method of capturing cancer cells, which can capture many types of cancer cells. According to the American Cancer Society, world cancer cases are projected to increase by 7 million from 14 to 21 million.

Only approved members by a group chat admin can authorise entry into the chat. This can be a useful property as it provides for a confidential ‘write only’ capability to the group communications resource.

When cancer cells are formed, they normally appear in blood or biological fluid, by forming circulating tumour cells.

Cisco had previously filed a patent that proposed using a blockchain system to track internet of things devices.

Patent Past

- The Automatic Gun

Modern weaponry has the ability to take out whole cities in a matter of seconds. But at the turn of the 20th century, weaponry was a lot more simple than today’s equipment.

In 1909, the first US patent for the automatic gun was filed by Charles Lovelace. Up until that point, most machine guns, such as the Gatling gun, featured a cranked action to make them work. A team of around four soldiers usually controlled these.

This new-patented weapon depicted the possibility of wielding a handheld machine gun by a single individual. World War One did see some of these weapons, like the German MP 18, although they were often experimental, with cheaper and more reliable bullet-fed guns remaining in use, and infantry primarily using bolt-action rifles.

The barrel of Lovelace’s gun was designed to see less recoil, despite the increased rate of fire. It was adapted to move rearward to counter forward movement of the breechblock.

It also featured a detachable forestock that can be applied for mounted use, similar to the earlier static bullet-fed machine guns.

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Copyright Reform the Brussels political circle, given that where this has been attempted already—namely Germany and Spain —it failed spectacularly. Small publishers and startups are aware of this reality, and are trying to raise awareness that rather than help the publishing sector, article 11 will only serve to further consolidate the press publishing sector and stifle competition.

Is the danger of big companies stepping on the smaller companies reflected across the copyright directive?

Yes. It’s the same in article 13, which tries to target YouTube and Facebook, but casts such a wide net, the entire internet as we know it could be turned upside-down. This is because it would essentially make most online platforms liable for the actions of their users, in addition to requiring licence agreements and upload filters. These big platforms seem to be the only point of reference for the problem that article 13 is trying to address, but really, YouTube and Facebook are the only two companies that are going to be able to comply and survive if article 13 passes. Of course I think their services would end up looking very different, especially because, for instance, YouTube’s Content ID system is more effective for audio recordings, whereas the directive is clearly aimed at a wider body of copyright-protected works. It will open the Pandora’s Box of different kinds of rights claims which will require different kinds of filters.

Pandora’s Box As the EU continues to make movements on copyright reform with its copyright directive, Mozilla remains steadfast in its assertions that such reform could open the Pandora’s Box for copyright. Raegan MacDonald explains What is the latest in terms of article 11 of the EU’s Copyright Directive?

The negotiations have devolved into a battle of attrition, as votes and substantial dialogue on key issues in the draft directive are repeatedly pushed back. The Parliament’s rapporteur—German centre-right MEP Axel Voss—has struggled to secure a compromise with other MEPs on two key elements, namely articles 11 and 13, which remain incredibly controversial issues. These elements of the proposal are most likely to have negative long-term implications for the health of the online ecosystem, including for free expression, innovation, and creativity.

With respect to Article 11 in particular—the proposal to extend copyright protection to snippets and links of text, often referred to 16

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as the ‘link tax’—publishers, companies, libraries, and digital rights activists in Brussels are continuing to highlight the negative impacts of the proposal.

A particular emphasis has been placed on dispelling the myth that this proposal is good for the publishing sector. For instance, at a recent conference in Brussels, Matteo Renzi, the vice-president of the largest Italian digital publishers association argued passionately that this is really being driven by major publishers to stamp out their competition.

Unfortunately, many politicians have been easily convinced by the narrative that the ‘link tax’ is a means of strengthening publishers’ financial position vis-a-vis large companies like Google and Facebook. It is extremely frustrating this narrative remains credible in

Small companies would be hit the hardest and, unfortunately, there doesn’t appear to be a payoff for artists and creators. It has never been clearly explained by the legacy rights holders —the music industry— how this article will bring the actual creators fairer treatment, including fair remuneration. The major rightsholders believe they need this for better ‘bargaining power’. While there may well be a reason to discuss the interactions between some large platforms and the content industries, this directive is not the place to do so. The EU is missing the opportunity of a generation to update a fragmented and dysfunctional copyright regime.

In your opinion, are there any positives to article 11?

Legally and practically speaking, no. To this day there has not been any evidence that such a regulatory intervention would improve the

fortunes of the press sector. On the contrary, we have clear evidence from Germany and Spain that it will actually do serious harm.

For instance, under the trial national laws the only online news aggregator that paid licensing fees in Spain is Upday, which is partly owned by Axel Springer, and in Germany, where trials were implemented in 2013, Google has yet to pay a cent, despite the fact that the so-called ‘lex Google’ was not-so-subtly targeted directly at major market players.

Our perspective, which is shared by small and competitive publishers, digital rights activists, and libraries, is that article 11 will only add more confusion, undermine media pluralism and access to information, without any added value to publishers and the media. It’s perplexing that this attrotius idea remains on the negotiating table, like some sort of copyright zombie.

Why do you think that article 11 is being pushed forward despite its failed trials?

For both article 11 and 13 I think, as with most IP debates, it is about control. You can read it all in the European Commission’s impact assessment for the copyright directive: the problem framing is that people don’t buy newspapers and that now there is a whole generation of individuals who consume news almost exclusively via digital sources.

There are two ways of looking at this period of digital transformation: you can think, there is a shift happening—consumer and consumption patterns are changing—we’re going to have to figure out new business models and try to take advantage of new opportunities to reach our audience via digital means, or you can double down on antiquated business models and try to use regulation to smother market shifts.

EU lawmakers consider themselves to be global regulatory standardsetters—just look at the GDPR. Unfortunately, articles 11 and 13 of the Copyright Reform directive could make the EU a global standardsetter in a new policy field and for all the wrong reasons. In the coming months we’ll be working hard to ensure copyright in Europe doesn’t turn back the clock. IPPro

Our perspective is that article 11 will only add more confusion, undermine media pluralism and access to information, without any added value to publishers and the media Raegan MacDonald, head of EU Public Policy, Mozilla www.ipprotheinternet.com

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Case Report Significant difficulties remain, however, for complying with such requirements, to the extent that these cross border agreements are often based on laws and policies that are obsolete. As an example, the mutual legal assistance treaties (MLAT) in terms of transnational criminal cooperation, propose fastidious solutions, which only guarantee minimum legal security. These demands take time, which remains a considerable source of frustration for the national authorities, in view of the lack of efficiency they imply.

The Microsoft case:

What are the consequences for personal data protection?

Nathalie Dreyfus explains the potential for far reaching consequences as a result of the US DOJ v Microsoft, which will be heard at the US Supreme Court later this year US v Microsoft Corp The legal saga of the case of the US Department of Justice (DOJ) v Microsoft began in 2013 when the American authorities sent Microsoft a search warrant. The purpose of which was to obtain the contents of the online emails of a European customer as part of an investigation related to narcotics. The IT giant refused to comply and the request was taken before the American courts.

In the first instance decision, the US District Court for the Southern District of New York considered that an American warrant to seize user data, such as emails, was valid, even though such data was situated outside American soil, in this case, in Dublin, Ireland.

The Court based its findings on article 2703(a) of the Stored Communication Act (SCA) of Title II of the American Electronic Communication Privacy Act. This provision grants American governmental entities the ability to order a private online email company established in the US to disclose the contents of a user email pursuant to a warrant issued according to the procedures described in the Federal Criminal Procedure Rules.

Microsoft appealed this judgement raising the question of the applicability of the Stored Communication Act outside American borders, on the basis of rule 41 of the Federal Rules of Criminal Procedure, in the belief that no Federal Court could authorise a warrant for property situated outside the legal limits of the territory of the US. The US Court of Appeals for the Second Circuit did not follow the judgement of the district court, finding in favour of Microsoft in July 2016.

In particular, it came to the conclusion that US Congress had not explicitly provided that the SCA should apply outside US borders.

To this extent, the court of appeals decided that the SCA did not authorise a US court to validate a warrant such as that referred to in 18

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the case at hand. However, the DOJ did not stop there and appealed against this judgement before the US Supreme Court in October 2017.

The latter is expected to deliberate on the case at the beginning of the summer. This much-awaited verdict raises concerns among the experts about the fundamental issues at stake in this case.

The US and the GDPR One of the main points raised in the proceedings in this case was obviously how a finding potentially in favour of the US government would comply with the legislation of the EU and in particular the General Data Protection Regulation (GDPR), starting from 25 May. Moreover, it is from this perspective that the European Commission intervened as an amicus curiae, in support of Microsoft’s position.

Through a communiqué, it explained that, to the extent that the case refers to the transfer of data from the EU, it is governed by EU law.

The new European legislation invites non-European national authorities to sign international and intergovernmental agreements to settle this type of dispute. Article 48 of the GDPR provides that “any judgment of a court or tribunal and any decision of an administrative authority of a third country requiring a controller or processor to transfer or disclose personal data may only be recognised or enforceable in any manner if based on an international agreement, such as a mutual legal assistance treaty, in force between the requesting third country and the union or a member state, without prejudice to other grounds for transfer pursuant to this Chapter”.

GDPR represents a substantial economic challenge for companies, since the new European regulation provides for large fines—up to 4 percent of total global annual turnover calculated on the company’s previous fiscal period—in the event of failure to comply with the provisions defined in article 48.

This is why the US legal authorities prefer conducting a more effective approach: that of the national warrants. This affair undeniably leads to the conclusion that a broader reflexion must be conducted on the legislation relative to personal data, on an international scale.

At a time when cyber criminality is increasing, transatlantic cooperation is more important than ever. Now, without legislative action carried out on an international scale, a judgement in favour of the government in the Microsoft case will probably have considerable effects, according to Professor Théodore Christakis in his study of this dispute. In this measure, such an outcome would render transatlantic cooperation very difficult for the authorities in charge of keeping the peace, governments and undertakings.

A ruling in favour of the American government would have the consequence of empowering the American authorities to oblige service providers present in the US to supply data, irrespective of where it is stored, which would go against the current legal requirements. In addition, such an outcome would signal to the European authority an incompatibility between US law and EU law, which would make them reluctant to authorise the transfer of European personal data to the US in spite of the privacy shield.

The CLOUD Act This affair is obviously in echo of the new American legislation called the Clarifying Lawful Overseas Use of Data (CLOUD) Act voted

by Congress and signed by US President Donald Trump, which offers a legal framework for the seizing of emails, documents and electronic communications located in the servers of US companies and stored abroad.

One of the principal points of the CLOUD Act resides in the new article 121 it introduces in the Stored Communication Act, which requires a communication service provider to be able to store, backup and even disclose the contents of any electronic records or communications, whether they are located on US soil or outside US borders.

The CLOUD Act thus becomes an alternative to the current process of sharing user information between countries, the MLAT, the implementation of which is more straightforward and faster to execute.

The major tech firms such as Apple, Facebook or even Google are delighted with such an initiative. They expressed themselves in an open letter in February in these terms: “The CLOUD Act encourages diplomatic dialogue, but also gives the technology sector two distinct statutory rights to protect consumers and resolve conflicts of law if they do arise. The legislation provides mechanisms to notify foreign governments when a legal request implicates their residents, and to initiate a direct legal challenge when necessary.”

This opinion is, however, far from being shared with the associations that defend liberties such as the American Civil Liberties Union and the Electronic Frontier Foundation.

This contested legislation is patently in conflict with the GDPR and in particular article 48, which, as explained above, deals with foreign—including American—investigations, by prohibiting the transfer or disclosure of personal data unless otherwise expressly agreed internationally. There is therefore a strong wager to be made that the CLOUD act will be subject to further discussions at national and international level. This legislation compiled in the current litigation illustrates the divergence emerging between Europe and the US concerning the treatment of requests for confidentiality and data. They represent a strong position on the part of the overseas government to shed light on the obsolescence of the current legislation in a digital world.

The firm Dreyfus & associés specialises in the field of IP. We are up to date on the new developments in European legislation and can provide you with all the help and advice you require concerning your IP rights in Europe. IPPro

This legislation compiled in the current litigation illustrates the divergence emerging between Europe and the US concerning the treatment of requests for confidentiality and data Nathalie Dreyfus, founder, Dreyfus & associés www.ipprotheinternet.com

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Tinder Lawsuit

Left, right, left Like jilted lovers, Tinder and Bumble have expelled old ties and brought up old arguments in an effort to make one another suffer, and as Tinder airs the couple’s dirty laundry in a patent infringement lawsuit, it’s a wonder the two matched in the first place Ben Wodecki reports The days of sending love letters, or asking someone out on a date face to face are quickly fading—gone is the age of mysterious notes or flowers on the doorstep—the age of swiping right has begun.

Today, finding a date, or the love of your life, means logging on to one of an abundance of dating apps and creating an online manifestation of your physical self.

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These apps have quickly become big business, and the market has flooded with the likes of Tinder, Bumble, and OkCupid, to name a few.

Most of these apps generate money from advertising—the freemium model—whereby basic services are provided free of charge.

In the case of Tinder, its basic service allows users to swipe right to find a partner, while more advanced features are premium content.

Tinder Lawsuit According to Global Web Index, 24 percent of Tinder users are paying for premium features like superlikes and rewinds, with Tinder generating $121 million dollars solely from these subscriptions.

But Kurtz says there are a serious negatives to bringing a statutory trade secrets claim, namely, the statutes come with prevailing party attorneys’ fee provisions.

As emerging industries rise and start-ups look to extract revenue from popular sectors, companies are inevitably bound to run afoul of each other’s intellectual property.

He says: “In other words, if the court finds that the claim of misappropriation was made in bad faith, Match could be responsible for paying Bumble’s legal fees.”

Tinder and Bumble are two dating app companies embroiled in such an argument.

“In the world of litigation, there’s almost nothing worse than filing a claim against another party, and not only losing, but paying the fees of the entity you sued.”

Match Group, Tinder’s owner, had reportedly been looking to buy Bumble, but early in March decided to sue the rival dating app instead.

In its complaint, Match accused Bumble of infringing two of its patents, including a design patent for Tinder’s world famous ‘swipe left, swipe right,’ feature.

Match also claimed that Bumble executives Chris Gulczynski and Sarah Mick, who had previously worked at Tinder, stole design features, including the development of the undo, or rewind, function.

Bumble hit back at Match, arguing that the company’s accusations were “baseless”.

In an open letter to Tinder, Bumble said it would not be intimidated.

It said: “We’ll never be yours. No matter the price tag, we’ll never compromise our values.”

“We swipe left on your attempted scare tactics, and on these endless games. We swipe left on your assumption that a baseless lawsuit would intimidate us.”

“Given your enduring interest in our company, we expected you to know us a bit better by now.”

It’s not me, it’s you David Kurtz, partner at Constangy, Brooks, Smith & Prophete, says that Match provides a “compelling story that, at a minimum, Gulczynski and Mick misappropriated trade secrets and brought them to Bumble where they were ultimately developed. If Match can present evidence supporting its claims, and Bumble does not have a strong counter argument, then Match is certainly right to make this a trade secrets case”.

He adds: “In court, Match will argue that Gulczynski and Mick were: (1) given access to confidential Match information and ideas, (2) knew they had a duty to confidentiality maintain those ideas, and not use them on behalf of a competitor; and (3) at a minimum, they have misappropriated Match’s proprietary ‘undo’ and picture messaging ideas, and developed them for Bumble.”

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To counter Match’s case, Bumble has argued that the claims are not legitimate grievances, but have been filed to disparage its platform in an effort to lower its market value.

Kurtz says that Bumble will argue that the underlying patents are invalid because the patented methods should never have been patentable, and that the trademarks upon which Match relies have been suspended and, in any event, terms like ‘swiping’ are generic.

On top of this, Kurtz believes that Bumble will argue that the ideas Match claims are “proprietary” are common ideas, and that Gulczynski and Mick haven’t used any trade secrets learned during their Bumble employment.

Despite the dangers of Match’s case, Kurtz says its most significant strength is in the fact that Bumble’s CEO Whitney Wolfe Herd, Gulczynski, and Mick, all worked at Tinder.

He explains that Match will have access to all of the communications, files, records and other information created during their employment, which can be used to bolster its claims.

Kurtz adds: “I would expect that Match will continue to go through all available records related to the two of them, and utilise any useful finds in litigating its case.”

“For instance, to the extent that a forensic analysis shows that Gulczynski and Mick took any work product with them upon leaving Match, that fact could be very helpful in painting the picture that they have been infringing upon Match’s IP rights.”

“Certainly, it’s a plus for Match, compared with alleging such wrongdoing against a competitor lacking any of their former employees.”

With a strong defence, Match must be aware of any weaknesses in its case. Kurtz notes that Match waited a long time to file its case, which is its most “obvious weakness”.

He says: “The fact that Match waited so long to file its case is a ‘nonlegal’ factor which calls into question the basis for filing the lawsuit, and may add a heavy dose of skepticism on the part of the court and, if the case gets that far, a jury.” IPPro

J. Varbanov & Partners

European and Bulgarian Patent & Trademark Attorneys

One of the oldest and leading IP companies in Bulgaria Professional, cost effective services and quality advices

Areas of practice: *IP Protection *IP Enforcement *Anti-counterfeiting *Litigations *Domain name registrations *IP watches

PO Box 1152, BG-1000 Sofia, Bulgaria South Park Complex, bl.1A, 2nd fl., BG-1421, Sofia, Bulgaria Tel.: (+359 2) 986 51 25, Fax: (+359 2) 980 32 47, e-mail: jvp@jvpatents.com

www.jvpatents.com

Brexit Update With more certainty for patent attorneys than others in the IP profession over their rights post-Brexit, what are the pressing issues for patent attorneys and firms in the Brexit negotiations?

CIPA has worked with colleagues inside and outside government to progress the ratification of the Unified Patent Court (UPC) Agreement.

The government has now completed all the necessary legislative steps and CIPA hopes that formal deposit of ratification of the UPC Agreement by the UK will happen soon.

Ratification by Germany will still be needed for the agreement to come into force.

CIPA has a strong preference for the UK to participate in the unitary patent and UPC system and for this to continue after Brexit. This will be best for the UK, for the users of the system, and for the other member states.

Cards on the table Confusion over rights of representation post-Brexit has left some wondering how patent attorneys will be affected. Stephen Jones, president of the Chartered Institute of Patent Attorneys, sheds light on the situation Barney Dixon reports Rights of representation is a key issue for trademark attorneys in the Brexit negotiations. Where do patent attorneys stand?

Because the European Patent Convention is not EU legislation and the European Patent Office (EPO) is not an EU institution, the European patent system will not be affected by Brexit.

The UK’s 2,300 European qualified patent attorneys will continue to represent their clients at the EPO after the UK leaves the EU. It will be business as usual.

This is good news for the UK because the UK’s patent attorneys contribute up to £1 billion every year to the British economy. The majority of this comes in fee income from foreign companies choosing to use British representation.

Of the 40,000 European patent applications filed every year by the UK’s European patent attorneys, a large proportion are for overseas clients showing the high regard the rest of the world has for the UK patent attorney profession. We punch above our weight in Europe, filing one third of all European patent applications.

Unlike European patents, trade marks in Europe are granted by an EU institution—the EU Intellectual Property Office, and there is a concern that UK trade mark attorneys may lose their rights of representation upon the UK leaving the EU. 24

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The Chartered Institute of Patent Attorneys (CIPA) believes this would be seriously detrimental to users of the system and disproportionately so for SMEs as well as smaller professional firms. Along with all other UK representative bodies CIPA continues to press the UK Government for clarity on this issue.

What are the common misconceptions around this?

CIPA has devoted considerable time and resources to promoting this ‘business as usual’ message.

The EPO has helped publicise this message, issuing unequivocal statements on its website.

Despite this, we continue to receive both first hand and anecdotal evidence that this key message is still poorly understood. This is perhaps not surprising.

Europe has many meanings in different contexts and it is easy to be confused, especially for those living and working outside of Europe.

CIPA has led delegations to our key international markets and explained the situation to sister patent attorney organisations, industry groups and the UK government’s global IP attaché network, relying on these valued friends and colleagues to spread the message that they can confidently continue to use UK based patent attorneys for their EPO work and that European patents will still be granted for the UK before and after Brexit.

What is wrong with the EU regulation that applies to the Nagoya Protocol? Why is it important that this is not transposed into UK law?

The Nagoya Protocol is currently enforced throughout the EU

by EU Regulation 511/143, which is so dauntingly complex and legally onerous that it discourages important medical research using non-human genetic resources such as animals, leaves or microbes. There is evidence that some biotech companies are simply avoiding using biological material obtained after the protocol came into force, 12 October 2015, because it is simply too complicated to do so.

As a result, potentially life-saving research into treatments for disease outbreaks may be abandoned—or not started at all. Also, important UK research could migrate to the USA, which has not ratified the protocol. Brexit provides an opportunity to improve this flawed legislation.

The regulation is over-prescriptive in two respects: First, it fails to balance the third objective of the Convention on Biological Diversity—benefit-sharing—with the other two objectives: to promote its sustainable use and to share equitably the benefits resulting from such use. Making research more difficult frustrates the development of new uses for genetic resources. Fewer new uses mean fewer benefits to share.

Secondly, it disregards all other important objectives of public policy. These include research freedom in general, and in particular easing research on vital objectives such as human health and food security. Even to the extent of not being able to monitor or treat infectious disease.

The UPC will be a better and more attractive system with the full participation of the UK, including as the base for the life sciences branch of the central division of the UPC. Another issue that requires attention is the Nagoya Protocol to the Convention on Biological Diversity (CBD) which obstructs important research on genetic resources, leading to delay or complete abandonment of crucial work in areas such as human health and food security.

The protocol needs to be interpreted and enforced in a way which gives proper weight to all the objectives of the CBD, as well as to other important public policy objectives.

The EU regulation that applies it fails to do this.

CIPA has published papers and lobbied the government to propose a sensible and practical framework for interpreting and applying the Nagoya Protocol in the UK, and urges that the regulation must not be transposed unchanged into UK law upon Brexit.

A further worry is the suggestion that the protocol should extend to mere information, for example details of the structure of biological material in a document, and that a similar protocol be introduced to cover access and benefit sharing in areas beyond national jurisdiction, namely the oceans. Given the stifling effect of the current law it seems inappropriate to extend it further.

What sort of framework does CIPA suggest to replace this?

What the UK should seek to do—as a long term aim—is to establish a sensible and practicable framework for interpreting and applying Nagoya. This should recognise the rights of provider countries to control their genetic resources (that is to say, samples of resources for which they are the country of origin) while those samples are within their boundaries. Sovereignty applies within national boundaries, not worldwide. Once such material was outside these boundaries, the rights of provider countries would be limited to enforcing contractual terms against parties with whom they had made access agreements.

To introduce a new law in the UK conforming with such notions would require new legislation, drafted with some care. But relaxing the grip of regulation 511/14 on UK research is too urgent to wait.

On Brexit, the Regulation could be transposed into UK law in the Great Repeal Bill, but with specific exceptions.

Article 4.8 (imposing special requirements on pathogen research) could be omitted, and preferably also Article 7.1, so that any obligation to show ‘due diligence’ would be deferred until a product was ready for launch. This could be combined with instructing the enforcing agency to concentrate on ensuring that any genetic resources sample collecting in Nagoya provider countries was conducted in accordance with local laws.

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Brexit Update

How might the UK be affected if it were to sit outside of the unitary patent?

The UPC agreement is a non-EU instrument which is separate from the unitary patent regulation although membership of the UPC is a condition of membership of the unitary patent.

If the UK were not to participate in the unitary patent, then European patents for the UK would continue to be granted by the EPO in the same way as now, but the UK could not be designated as part of a unitary patent.

CIPA believes the unitary patent will be beneficial to businesses in allowing them to obtain a single patent covering the majority of EU member states.

UK businesses, including SMEs in particular, would benefit from streamlining and potential cost reductions from such a system, similar to those which already exist for trademarks and designs.

CIPA is therefore in favour of the UK government and the EU working out a way for the unitary patent to function so as to include the UK, as well as potentially other non-EU states.

Could Brexit, along with the potential for the UK to miss out on the UPC, lead to it becoming a less attractive venue for international companies looking for a gateway into Europe?

The UK has a great IP system and functions as an international IP hub, attracting business from around the world.

The UK’s IP system is consistently ranked by independent research as one of the best in the world, with specialist courts and judges, renowned for their impartiality, experience and skill, as well as experienced arbitrators and mediators, providing a well-developed system for resolving IP disputes. Litigation decisions can usually be expected within 12 months. This speed of judgment, along with the rigorous testing of evidence are among the features which set the UK apart from other countries.

The use of English as the international language of business and science, and the UK profession’s experience of working in both civil and common-law legal systems, confirm the UK as an international hub for IP work. This will continue whether or not the UPC comes in to operation, and whether or not the UK is part of it. But CIPA’s position remains that the UPC will be a better system for its users, and for the other member states, if the UK plays a full part in the system. IPPro

CIPA’s position remains that the UPC will be a better system for its users, and for the other member states, if the UK plays a full part in the system Stephen Jones, president, CIPA 26

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Artificial Intelligence

The US must embrace the AI revolution, or its global lead in intellectual property will be lost in time, like tears in rain Barney Dixon reports Artificial intelligence (AI) sounds cool. When you look at the breadth of fiction attached to the technology, you might consider it the impossible—the fantasies of authors and writers around the globe. It is this air that gives it its identity and its mystique. But AI is very much here, and with that, comes a particularly unique set of problems.

As Russian president Vladimir Putin once said, “the nation that leads in AI will be the ruler of the world”. Leading in something means leading in its every single aspect, including, in this case, setting standards regarding AI and patent law.

For the US, a country that is currently in the midst of a potential patent downturn, due to what some critics have called a “weakened IP system”, headlining in AI patent policy could be important to the continued premiership of the US patent system.

Implementing AI poses an unusual set of issues for a national patent system, and not all are related to the actual patenting of AI itself. For example, if an AI were to invent something, does the patent belong to the AI itself, or the creator of the AI? Assistant professor Mike Schuster, of the Oklahoma State University, believes that these issues need to be addressed—one way or another— in the near future. He hopes that, when the time comes, sufficient information and research will be available to make an informed decision.

Schuster says that invention by artificial intelligence is already here.

He explains: “It has independently invented jet engines, parts of bullet trains, communication systems, and new pharmaceuticals.”

These issues of invention and ownership are already out there, according to Schuster, who recounts that there are already reports of an individual who secured a patent on technology that he admits was invented by AI. “He did so without bringing the AI’s role as inventor to the US Patent Office’s attention,” Schuster says.

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The primary source of global intellectual property internet news and analysis

Schuster explains that ‘to invent’ means to “identify a certain and permanent conception of the invention as it will be used”.

“Providing information about the existing state of the art is not— standing alone—invention. Neither is simply identifying a goal to be achieved or employing another to achieve that goal,” he says.

He adds: “This leads to the legal conclusion that, where a human solely identifies a goal and provides background information for AI to use in creating a new technology, it is the computer—not the human— who is the inventor.”

An upcoming paper from Schuster specifically discusses this problem and the variety of types of AI capable of invention. For example, Schuster describes genetic algorithms as one such variant.

He details algorithms that develop “new technologies by mimicking biological evolution”.

“The AI creates multiple sets of random design parameters relevant to a subject technology,” Schuster illustrates, “it then tests each set for performance and discards poor performers.”

“The survivors then create additional parameter sets by combining subsets of their elements to form hybrids (offspring).

These sets are ‘mutated’ by randomly altering one or more parameters. The process repeats itself, beginning by testing the parameter sets for performance, until an acceptably performing design is reached.”

You’ve done a man’s job Inventions developed by AI already exist and already, as Schuster explains, we have seen individuals claiming ownership for AI created inventions.

So, in this new, strange territory, how should governments react?

Should patents be owned by the AI itself? The purchaser of the AI? Or those that developed the AI in the first place?

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Artificial Intelligence Schuster says that, despite the fact this is an emerging area with real questions, he hasn’t found any significant discussions about patent ownership by AI. But he adds: “There are, however, a set of twin questions that commonly arise in the area of patents for AI-created inventions”.

“First, should patents be granted for computer created inventions, or should these technologies be free for anyone to use, assuming they aren’t a trade secret? Second, if such patents are granted, who should own them?”

Speaking of the first issue, Schuster says that there are compelling arguments on both sides of the discussion of whether to grant patents for AI created inventions.

He explains: “Many patent systems are premised upon the idea that these intellectual property rights are granted to encourage creation of new technologies.”

“Building from this, some assert that—due to the relatively low cost of invention via AI—little incentive to engage in AI invention is needed to offset the expenditure, and therefore, there is no need to grant patents for these technologies.”

Schuster adds: “In the same vein, some believe that patents for AI inventions will further patent thickets—technological areas wherein huge numbers related patents exist that render commercial activity in the field difficult.”

“The argument goes that, due to the (relative) ease of AI invention, significantly more technologies will be created, causing a proportional increase in patents granted and related growth of patent thickets.”

But Schuster also reveals a counter argument: that refusing to give patents for AI created inventions encourages lying to the patent office.

“If a company uses AI to invent a particularly valuable commodity and it is not allowed to secure a patent on it, a difficult choice is created”, he explains, “it can use the technology in commerce, which affords the company a brief competitive advantage before others identify and adopt the invention. Alternatively, it can preclude competitors from accessing the invention by not employing the technology, which of course, deprives the company of any market benefit.”

Schuster says that the related question of who should own the patents is also being discussed.

He explains: “I’ve asserted in an upcoming article that, if we decide to grant these patents, firms who employ AI to invent should own the resulting patents.”

“Professor Ryan Abbott of the University of Surrey believes that the software owner should secure any patents which arise. Others state that a party who reviews the AI’s output for patentable inventions might be the actual inventor and thus, patent owner. Again, the issue of AI and patent law reaches an unresolved point.”

So with much uncertainty surrounding AI developed inventions and the resulting patents, how close are we to this reality?

Schuster says that AI’s are already inventing, yet the US government doesn’t appear to have any guidance on the matter.

Last year, Schuster filed a Freedom of Information Act request with the US Patent and Trademark Office (USPTO), seeking all promulgations or directives to patent examiners, instructing them on how to examine patent applications listing one or more inventor that is not a human, including software, computers, and artificial intelligence. The office told Schuster that it had no relevant information, which he says indicates a lack of internal guidance on the issue.

Despite the present blackout on this issue, Schuster says he doesn’t believe this subject will go untackled for long.

He expounds: “Within the next few years, I believe the issue will come to the fore through one of several avenues: we might see a patent application naming an AI inventor, litigants disputing inventorship who bring up AI, or a proactive amendment to the patent statutes or USPTO guidelines. It is possible that the issue will come up in some unexpected manner, but I expect that it will be addressed in the near future. Hopefully, the issues will have been widely discussed by that point such that—regardless of what policy is adopted—a wellinformed decision can be made.”

Will a reactive approach from the US pay off? Last year, David Teece, director of the Tusher Center for Intellectual Capital Management, UC Berkeley-Haas, said that the US IP system was “weakened”, leading to the strengthening of foreign rivals.

“There is, however, a third option: the firm may attempt to secure a patent by falsely naming a human as an inventor. Under current policy, at least in the US, such subterfuge is unlikely to be identified, and potential sanctions to the company for such deceit are relatively low. Incentives to behave in this manner are not aligned with policies encouraging candor during patent prosecution.”

Teece said that other countries, especially China, are embracing stronger IP and transforming themselves into innovation economies.

He makes clear that further research needs to be done to determine the severity of these concerns before an informed policy is set.

Will the US sleep on the future of AI, or will it take the reins and become the leader of the world? Only time will tell. IPPro

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He said “We have been sleeping while Rome burns. Today, one has a better chance of getting an injunction in China or Germany or Brazil then in the US.”

SEP Debate

Standard setters IP Europe brings its own arguments to bear as Europe’s SEP debate continues Barney Dixon reports Despite appearing to cool down, Europe’s standard-essential patent war continues to boil. The debate has temporarily shifted from a regulatory setting, to a competition between two competing best practice workshops on standards licensing.

IP Europe, an organisation representing research and development intensive wireless technology developers in Europe—both small- and medium-sized enterprises (SMEs) and larger corporations such as Ericsson, Nokia and Orange—now shares its frustration within this context, arguing that Silicon Valley giants are hijacking its attempts to maintain fair, reasonable and non-discriminatory (FRAND) outcomes to licensing negotiations.

Francisco Mingorance, executive secretary of IP Europe, says that despite these frustrations, there are early signs that the recent European Commission Communication on SEP licensing has improved outcomes in the market. We spoke to Mingorance to find out more.

What is the difference between IP Europe’s CEN/CENELEC workshop and other workshops aimed at SEPs in Europe?

We launched our CEN/CENELEC workshop initiative, the ‘Best Practices and a Code of Conduct for Licensing Industry Standard Essential Patents in the Internet of Things (IoT) / Industrial Internet’, last October, to document the best practices used over the last 15 to 20 years in licensing standardised technology.

We want this exercise to support constructive working relationships between standards developers and implementers as we make the transition into the internet of things and 5G environment.

An additional goal of this exercise is to help inform the many SMEs who, attracted by the market potential of the Internet of Things, will be entering the standards environment for the first time. They need to be well informed about the legal and financial obligations of licensing and using the open wireless technology standards.

On the other hand, a group of Silicon Valley giants, who initially attempted to hijack our workshop before leaving with copies of our documentation, have established a parallel workshop, titled ‘Industry Best Practices and an Industry Code of Conduct for Licensing of Standard Essential Patents in the field of 5G and Internet of Things’, aimed at rewriting 20 years of licensing practices to their specifications. Sadly, this is part of an ongoing pattern of behaviour from a few companies that are trying to 32

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diminish and undercut the value of innovative open wireless technology standards like 4G and 5G. We are trying to develop and document existing best practices, they are attempting to squeeze the returns, and ultimately the sustainability, of European innovators like Ericsson, Nokia and Orange, which are investing heavily in developing revolutionary technology for inclusion in open standards. Unfortunately, despite these significant differences, the title of the opposing workshop is confusing some organisations.

What is at the root of these different approaches?

The sole focus of this group of Silicon Valley giants is to try to undermine the tried-and-tested licensing valuation model by putting forward new ways of calculating royalties based on the fraction of the value of a microchip. Unfortunately, we have seen this behaviour repeatedly: for example, in their hijack of the intellectual property Rights policy at the Institute of Electrical and Electronics Engineers Standards Association (which is now being investigated by the US Department of Justice), and their unsuccessful lobbying around the European Commission’s Communication on SEP licensing.

None of these companies has ever produced or licensed any cellular technology, but they benefit greatly from being able to implement open standard technologies in their products.

If you reduce the licence fees by a factor of 30 or more, which is what these companies are proposing, then there is no longer an incentive for companies and universities to contribute IP to open standards.

There would be no more investment in open standards, only private technology held privately by companies and that is the end of it.

They need to recognise that if there is no remuneration, there will be no more innovation in open standards to support the development of their businesses. In this instance, wireless innovators would be forced to sell their innovations to private buyers, leading to a fragmented marketplace of competing wireless technologies and a decline in interoperability. But perhaps this is what they want.

What does IP Europe hope to achieve from its second CEN/ CENELEC workshop?

We are trying to educate tech users who are new to this field. In the past there have always been limited players in the telecoms market: everyone knows each other and they all know the rules of the game. Now, we are talking of bringing in new sectors, like the automotive industry, or the health sector or energy sector, transportation, you name it.

Companies in these new sectors will start using the internet of things and 5G technology in completely new ways and most of them don’t yet fully understand how these new specifications will work. What we’re trying to do is document and explain how it works and how it can be used to the mutual advantage of both those who use the technology and those who develop it.

Sometimes with the internet of things, you will have small companies that will also develop the wireless technologies and will want to license it out. As such, it is also important for them to be able to operate in a stable and predictable IP licensing environment, rather than one in which they may be forced to find expensive legal remedies, just in order to receive payment for their inventions.

We want to document the best practices and promote what we call good behaviour in licensing negotiations between patent holders and the licensee (not just from one perspective) and to promote the behaviours that prevent litigation by making more information available and explaining how licensing works. Then eventually we want to encourage more investment in 5G and to improve technology standards for small and large companies, as opposed to undermining any fair and reasonable expectation of returns.

Were you pleased with the European Commission’s communication on SEPs? Could they have gone further?

We were happy with the communication, but it could have been even better. Both the communication and the conclusions of the European Council supported the tried-and-tested principle of access to all in licensing negotiations, which was our primary goal. The alternative license to all approach, being advocated for by the Silicon Valley cabal, would have obligated our members to provide licenses for the technology to every single member of product value chain that requested one. This was seen as another attempt to force us to license our world

changing innovations at the fraction of the value of a chip. However, when judging success, it is important to remember that the political and legal wrangling can only be viewed as beneficial if it helps create a more positive market dynamic, and I’m pleased to say that has been the case.

It was felt by some of our members that in the build up to the communication that a number of negotiations had stalled as implementers were questioning whether the outcome of the communication may offer them a chance to renegotiate. However, two days following the decision BMW became the first automotive manufacturer to agree a licensing deal for using the 2G, 3G and 4G patented technologies in the AVANCI patent pool.

That is the really great news, because despite the talk of industry winners or losers, standardisation is, at its heart, an exercise in balance and collaborative innovation that is intended to make sure consumers can benefit from shared access to the best technologies globally.

Is the debate going the way you’d hoped?

Gradually, yes. I think there is a growing appreciation in the US particularly, but also in Europe, that some of the more outlandish positions and actions taken by opponents of the IP rights have been potentially damaging to a very important and advanced area of innovation.

Despite this positive trend though, it remains a great shame that this ongoing campaign to undermine open standards continues to distract energy and resources away from development and commercialisation of these revolutionary open technology standards; especially, when we are just about to see again the huge benefits the system brings, in the shape of the first full technical specification for 5G. IPPro

Despite this positive trend though, it remains a great shame that this ongoing campaign to undermine open standards continues to distract energy and resources away from development and commercialisation of these revolutionary open technology standards Francisco Mingorance, executive secretary, IP Europe www.ipprotheinternet.com

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Blockchain Patents risk of so-called patent trolls—those whose business model is based on applying for or purchasing patents, then demanding royalties or suing for their use, rather than operating the inventions.

Chain Reaction The growing number of patent filings relating to distributed ledger technology has skyrocketed in recent years, showing those in the IP profession that the technology is here to stay, and leaving many questions in its wake.

Ruth Burstall of Baker McKenzie explains The number of patent filings that mention blockchain or distributed ledger technology (DLT) in the title, abstract, or claims has increased exponentially over the past few years.

Although the number of patents granted remains low, the swell in applications is indicative of the excitement around DLT. Blockchain was conceived as a way to transfer cryptocurrencies without the need for an intermediary. Information (in the case of cryptocurrency, regarding the ownership and transfer of currency) is shared and verified across a peer-to-peer network and then stored in a distributed ledger format. As information on the distributed ledger is verified by the many participant hosting computers (nodes) solving a complex mathematical problem, no single entity holds the information and it would take a significant amount of computing power to attack the network. Information stored on distributed ledgers is therefore very secure and DLT has therefore found many applications beyond cryptocurrency from verifying the provenance of diamonds to tracking Chinese chickens.

The challenges of patenting DLT DLT has piqued the interest of many, from technology start-ups, to traditional technology companies to financial institutions, which have filed numerous patents for DLT inventions in the past five to 10 years. A recent report by Thomson Reuters, based on WIPO figures, indicates that China leads DLT patent applications, having filed 225 of the DLT patents last year and 59 in 2016, compared to the US, which saw 91 applications in 2017 and 21 in 2016.

As yet, few applications have been granted but it seems likely that applicants have had to navigate several difficult issues on the question of patentability.

First, as with any patent, DLT patent applicants will need to demonstrate novelty and an inventive step. Blockchain was 34

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described in a 2008 paper by its anonymous inventor, who uses the pseudonym Satoshi Nakamoto, and was made available to the public as a way of transferring bitcoin in 2009. Although Nakamoto did not seek patent protection for blockchain, it forms part of the prior art for any subsequent DLT. With the speed at which the technology is being developed and applications filed, the prior art is a quickly expanding and shifting landscape, meaning it may be difficult to carve out a monopoly.

Secondly, DLT patent applications need to be carefully drafted to ensure that the claims cover patentable subject matter, with the potential to fall foul of restrictions on patenting business methods and computer programmes. Computer programmes are expressly excluded from patent protection in many countries, although where a computer programme has a technical effect it may still be capable of protection. Likewise, computer programmes and business methods may not be capable of protection if they are simply ideas of an abstract nature.

The US Supreme Court in Alice v CLS Bank held that patents claiming an escrow system implemented on a computer were too abstract to be valid. Although the court held that claim elements that add something “significantly more” to an abstract idea might transform it into patent-eligible subject matter, it did not give clear guidance as to what these elements might be.

Following this decision, US federal courts have declared many computer-related inventions to be invalid on the basis that they are too abstract to attract protection. These restrictions not only make it more difficult to draft a patent which will proceed to grant, but also increase the risk that a granted patent will be subject to challenge by competitors on grounds of invalidity.

Thirdly, the land-grab for patents has led many to speculate that DLT will be the next innovation to spark patent wars, similar to those which accompanied the rise of smartphone technology. It also increases the

Patent litigation is extremely expensive and for many pure-play DLT initiatives, patent litigation would require them to ‘bet the company’ on the result. The Blockchain Intellectual Property Council, established by the Digital Chamber of Commerce, a US advocacy group which promotes the emerging DLT industry, already warned in 2017 that the exponential rise in patent filings creates a high risk of IP abuse and has made helping DLT developers to manage this risk a key element of its strategy.

What can blockchain do for patents?

Whichever approach is taken to protecting DLT innovation, some are already flipping the question of what patents can do for DLT on its head and instead asking what can DLT do for patents?

With various governments exploring the application of DLT for land registries, it is not beyond the realms of possibility that DLT could also be adopted as a way of registering and recording transfers and licences of patents and other IP rights. The European Parliamentary Research Service identified in a 2017 report that digital rights management and smart contracts are potential use cases of DLT.

The Chinese Ministry of Information Technology and the European Commission are already reportedly working on blockchain standards, and this is likely to lead to the emergence of Standard Essential Patents (SEPs). SEPs must be licensed on fair, reasonable and nondiscriminatory (FRAND) terms.

Many DLT start ups are already focusing on the application of DLT in recording the creation and transfer of unregistered rights such as copyright in music. DLT could also be used to defensively publish technologies as prior art to prevent others from obtaining a patent over such technologies.

Alternative approaches While there has been something of a gold rush to patent DLT-related innovations, there are different schools of thought as to whether filing patents is the correct way to protect DLT, and not all DLT developers are applying for patents. As a practical matter, for some start-ups, the cost of filing patent applications and the delay that the application process may introduce in getting a technology to market may be prohibitive. These companies may rely on trade secret protection in preference to patents, but, for companies seeking investment, applying for a registered patent and related monopoly may be a prerequisite to securing funding.

Although it is currently possible to record patents with customs authorities and to request that they detain and destroy infringing products, it is often difficult for customs authorities to tell whether products are indeed infringing. As DLT allows the secure recordal of information about a product’s provenance and the steps it has taken through the supply chain, it has huge potential in helping to enforce against the import of patent-infringing goods at customs borders. There are already examples of scannable chips or tags being embedded in products which interface with information recorded on blockchain to verify the authenticity of products. If customs authorities had access to technology which allowed them to scan such tags, this would greatly assist them in identifying counterfeit products.

Some think that developing DLT on an open source basis will be the best way to support the success of the technology by allowing interoperability of developments. For example, the Hyperledger Project established by Linux in 2015 aims to support collaborative development of DLT. Another approach has been to establish patent pools which allow the cross-licensing of patents. Some developers may take a hybrid approach—applying for patents on technology and then licensing them under open source licences.

The interest of government bodies in DLT and the move towards creating standards suggests that this technology is here to stay.

While we can expect the trend of high numbers of patent filings on the technology to continue it will probably not be long before some of the issues discussed above start to emerge. Exactly how it will transform the way we live and work remains to be seen, but DLT developments over the next few years should certainly be watched with interest by the IP community. IPPro

While we can expect the trend of high numbers of patent filings on the technology to continue it will probably not be long before some of the issues discussed above start to emerge Ruth Burstall, senior associate, Baker McKenzie www.ipprotheinternet.com

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Alibaba Update As an example, in 2016, Alibaba merged its notice and takedown systems into a single ‘one-stop’ IP protection platform. This was a significant undertaking for us, but we knew from our collaboration with rights holders that a more unified and streamlined notice and takedown system was something that would be well received. As I mentioned earlier, in 2017 we made enhancements to platform to allow for faster processing of takedown requests.

Power to the enforcers Matthew Bassiur of Alibaba, gives an update of the e-commerce company’s enforcement efforts Barney Dixon reports Third party support for Alibaba has grown in recent years. What do you think Alibaba does well in terms of enforcement?

You are absolutely right. We are seeing a deeper appreciation for Alibaba’s efforts and a greater understanding of our role as a partner in intellectual property protection. In recent years, Alibaba has made it even easier for rights holders to work with us and protect their IP. These efforts are paying off for rights holders. Leading brands, small and medium-sized enterprises (SMEs) and industry associations, including some who were previously our most vocal critics, have voiced their support for and satisfaction with our programs.

To illustrate, let me share some data from last year. While the number of registered accounts in our IP protection system rose 17 percent yearon-year, the number of takedown requests dropped 42 percent. We believe this is attributable to Alibaba’s efforts in proactively identifying and removing potentially problematic listings. Listings go through our scanning engine, which identifies and intercepts problematic listings within microseconds, and prevents their entry onto our platforms. In addition, our deep learning algorithms continue to apply complex modeling to proactively remove suspicious live listings. In fact, last year 97 percent of our proactive takedowns occurred before a single sale took place.

Additionally, in 2017 we launched enhanced data modeling to our IP protection platform to speed up the handling of takedown requests.

As a result we’ve seen a two-thirds reduction in processing time and 24 hour handling time during business hours has become the new norm. To assist small businesses and individuals, we have taken 36

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the extra step of developing a simplified online form for submitting takedown requests in order to make it easier for them to report and remove infringing listings.

Finally, when we do identify infringers, we take action, in 2017, we closed more than 240,000 Taobao stores.

Our offline enforcement efforts are also an area of strength. Alibaba does not limit its IP protection efforts to online matters and we work closely with rights holders and Chinese law enforcement officials. In 2017, there were hundreds of arrests based on information and leads provided by Alibaba. We are taking action in civil courts as well as assisting in criminal matters.

To date, we have brought 12 civil actions in China. Last year, we sued two sellers of counterfeit Swarovski watches and we brought and won a lawsuit against a pet-food vendor by alleging damage to our brand and reputation for selling counterfeit cat food on our platform and in violation of our terms of service. We believe these are the first legal actions brought in China by an e-commerce company against infringing sellers on its platform.

Do you think Alibaba has changed perceptions of its commitment on IP? How has Alibaba won over brands that may have previously argued that Alibaba doesn’t do enough? How does it build trust with brands?

I believe perceptions have changed, yes. Collaboration between Alibaba and rights holders is essential for the protection of IP, and every day we are working with brands to understand their IP and how we can work together. We listen to, deeply value and take action based on what we hear from them.

Alibaba has, for years, invested heavily in both technologies; it takes time for the development, testing and implementation of technological enhancement. It also takes time for those enhancements to be adopted and the benefits realised. I think in some ways the changes in perceptions we’re seeing now are the result of sustained, years long efforts by Alibaba.

It also takes time to build the trusted relationships that enable our success. More than 100,000 brands operate on our platforms, including 75 percent of the world’s most valuable consumer brands, as well as countless small businesses, all of which have thriving businesses on Alibaba’s platforms.

These businesses would not choose to work with us if they did not view us as a trustworthy partner.

One of the key initiatives that Alibaba launched in 2017 was the AACA. Can you tell us a little bit about the AACA and any plans for 2018?

We established the Alibaba Anti-Counterfeiting Alliance (AACA) in 2017, an alliance created among Alibaba and approximately 30 global and domestic China brands, including Louis Vuitton, Uniqlo and Burberry. In September of last year, we created an Advisory Board to give AACA members the chance to participate in strategic decision-making and influence policies being considered by Alibaba.

Advisory Board members include Swarovski, Adidas, Ford, Pernod Ricard and Sony, among others.

Representation covers each of the industries represented in the AACA, including apparel, personal care products, consumer electronics, and the automotive industry.

We believe this is an industry first and Alibaba will hugely benefit from the input of the AACA and the Advisory Board.

This year we announced that the AACA was adding more members to bring our full membership to approximately 100 brands. This not only triples the number of companies that will benefit from the AACA programs and initiatives, but provides even broader representation in the dozen industries.

What role does technology play in Alibaba’s work on intellectual property protection?

The online environment is reflective of the offline reality and Alibaba takes a technology-driven approach to IP protection. As a leading global technology company, we leverage our advanced algorithms and machine-learning capabilities for our online and offline IP protection efforts. Online, we proactively monitor our platforms in order to identify potentially problematic listings and take action. Our data modeling is constantly improved upon to increase the accuracy in identifying, preventing or deleting suspicious listings. Offline, we use data and analytics to build cases for referrals to law enforcement.

This is in addition to responding to many valid law enforcement requests for information to support their own investigations. Simply put, we leverage our big data and analytics to help target illicit manufacturers, distributors and suppliers of counterfeit products. We are also one of the few e-commerce platforms—if not the only one— to also have such a robust, proactive offline investigations program.

How else is Alibaba working to create a better environment for IP protection in China?

In addition to the efforts I have already described, we view it as part of our responsibility to advocate for improvements in laws and enforcement penalties in this areas.

The best example of this is the vocal public advocacy of Alibaba’s founder and executive chairman Jack Ma who last year called for stronger IP laws and enforcement in China including jail time for offenders. So it is very encouraging to see just such changes being discussed in China. IPPro

Simply put, we leverage our big data and analytics to help target illicit manufacturers, distributors and suppliers of counterfeit products Matthew Bassiur, vice president and head of global IP enforcement, Alibaba Group www.ipprotheinternet.com

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Country Profile

O Canada Grant Lynds of the Intellectual Property Institute of Canada provides an overview of upcoming changes to Canada’s trademark law and how brands should adapt their strategies

Ben Wodecki reports What are the biggest changes coming to Canada’s trademark law?

How will these changes affect Canadian companies?

The biggest change we have on our horizon is the implementation of our legislation to implement three treaties, the Singapore Treaty on the Law of Trademarks, the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, and the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks. The significant change is the implementation of Madrid Protocol into Canada. We’re a little bit later to the party than most people but we’ll get there and the current forecast is that the agreement will be in force by 2019.

Canadian companies are going to be more aware that they have the opportunity to use the Madrid Protocol should they choose to file outside of Canada, and that there’s a more cost effective and leaner route to engage trademark systems outside Canada and vice versa.

The companies outside Canada that are looking to file inside Canada, will see that being inside Canada gives them a more cost-effective route to consider filing via the Madrid Protocol.

Products Act. We’re still working within the domain or the regime of that legislation, which is still fairly recent in trying to see if it has provisions that are effective in tackling counterfeits.

recognised, even though they may not be explicitly identified in the definition of a trademark, the new definition will capture many forms of trademarks.

To date, there have been very few seizures under the provisions of that legislation. Much of the commentary is focused on Canada having a less than robust regime under that legislation for intercepting and detaining counterfeit goods that come into Canada.

Brand owners should review their portfolios to ensure they have captured all possible trademarks that may be deserving of protection in Canada.

What is the biggest problem area for Canada in terms of counterfeits?

We’re looking at the US Trade Representative’s Special 301 Report, which brought some concerns to Canada over in-transit goods— essentially goods being shipped through Canada, not with a final destination of Canada, that come from another country and go through Canada and then onward to the US or other countries.

That is not something that the Canadian government has the ability to detain and inspect under our Request for Assistance programme, but that is what the US government has commented on. I know that hasn’t changed and my only question there is whether or not is whether the US will continue to comment on that in its 2018 report.

We also expect there may be increased opposition or summary cancellation proceedings in the future since trademark owners will not be required to provide evidence of use of their trademarks in order to obtain a registration.

As such, if trademarks are registered in the future but use has not commenced within the requisite time period in Canada, we expect summary cancellation proceedings to increase as well as opposition activity.

I think brand owners should therefore plan in their corporate strategies to engage Canada’s summary cancellation proceedings and opposition proceedings on an expanded basis, starting after the changes come into force, which we expect to be in 2019.

How should brands adapt their strategies to prepare for these legislative changes?

What tools are available for Canadian brands looking to enforce their trademarks against counterfeits?

Once the new legislation to implement the treaties comes into force, the definition of a trademark will be broader than the current definition. While some of the types of trademarks are already

Canadian brand owners can always look to sue for trademark infringement or passing-off in Canada’s Federal Court or provincial courts, and they can also try to engage the Request For Assistance

Do the new laws hold any provisions aimed at tackling counterfeits?

Our main anti-counterfeiting measures are still rooted in legislation that came into force fairly recently in 2015, the Combating Counterfeit 38

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process, which was brought into force by way of the Combating Counterfeit Products Act mentioned above.

This is a procedure whereby brand owners can file a list of registered trademarks, geographical indications or copyrights with the Canada Border Services Agency (CBSA), to provide that information to the CBSA should they suspect incoming goods are counterfeit.

There have been many recommendations by interested groups to the Canadian Federal Government on ways to improve the Request For Assistance process, which we hope will be addressed soon to improve Canada’s ability and reputation in the anti-counterfeiting regime.

How might the renegotiation of the North American Free Trade Agreement (NAFTA) affect Canadian IP from an enforcement perspective?

Both NAFTA and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) set minimum standards, which are often exceeded by either US or Canadian IP rights.

As part of the NAFTA negotiations, the US has apparently been negotiating for a broader implementation of the enforcement provisions of TRIPS, but Canada has been focusing on modernising the language of NAFTA to reflect technological developments since the mid 1990’s.

The enforcement of copyright in digital applications is one example where the US has been seeking tighter protection. IPPro www.ipprotheinternet.com

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Supported Piracy Now, why would CNN keep interrupting a news story as important as this with annoying commercials? Also, while it is not surprising to see a well-known company like Verizon, or even Safelite, advertise on CNN, isn’t it odd to see a commercial for a quack-ish weightloss cure? And what of the ghastly comments in the sidebar, from neo-Nazi nutcases rejoicing over the attack? Why was CNN allowing such comments on its YouTube channel? The answer to all of this, of course, is that the live stream was not on CNN’s official YouTube channel, but rather a pirate channel. Hundreds of such rogue pages abound on YouTube, peddling news, sports, sitcoms and movies.

Badvertising:

And how did we get to this dodgy website? Courtesy of a routine Google search, once again:

Outside YouTube, the numbers probably run into thousands. As a simple example see the screenshots below, taken both with and without an adblocker:

This infringement is brought to you by…

For copyright owners, ad-supported piracy is the new battleground. Bharat Dube and Bharat Kapoor of Strategic IP Information explain Sift through any newspaper, blog or academic journal, and the odds are you will find much scepticism about copyright law. After all, the public’s perception of copyright enforcement is often defined through news stories like ‘Film Company Sends Warning Letter to Visually Impaired 90-year Old Granny in Rural Bavaria’, or, ‘Music Label Forces 19-year old Singer to Cough Up $ 100,000 for YouTube Cover Song, Dropout of Harvard’.

Copyright owners have indeed, on occasion, been guilty of overzealous conduct of this sort, owing to a combination of naïveté and myopic legal advice. Yet, copyright owners have also pursued thousands of legitimate targets—mercenaries who indulge in industrial-scale media piracy, battering the revenues of law-abiding businesses. Unfortunately, in today’s world of man-bites-dog news, this rarely receives the attention it deserves.

Stung by bad publicity, copyright owners have increasingly used uncontroversial, gentler strategies to counter piracy. Two of the most common are awareness campaigns targeting school and university students, and the promotion of affordable, accessible content through websites like iTunes, Netflix and Hulu. While such strategies have no doubt been effective, piracy still thrives in stubborn little pockets of the internet. A central reason for this is the financial ecosystem that supports piracy. Consider this example: last year, on the day of the horrific white supremacist car attack in Virginia, a concerned colleague of ours hastily typed ‘CNN live streaming’ on Google (or some such search string).

Our colleague was directed to a live YouTube CNN feed, the first or second search result. It was only after some minutes that our colleague realised something was amiss. The feed was consistently interrupted by commercials like the shown on the right.

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Quite evidently, pirate websites are supported by advertising. And these are not just spammy ads of the 1800-Gain-Back-Youth-andLook-Sexy-Miracle-Pill variety (which, sadly, we can report from personal experience do not work). Rather, many of these ads are from perfectly respectable businesses. In 2014, a report authored by Mike Weatherley, who at the time was a British MP and intellectual property advisor to then UK Prime Minister David Cameron, estimated that 600 pirate websites generated over $200 million through ad revenues the previous year. The report found that nearly a third of the ads were of household brands, usually placed by ad networks a step removed from the actual company. In India, a report prepared last year by the Veri-site division of our company, SIPI, which was commissioned by the Federation of Indian Chambers of Commerce and Industry (FICCI) tracked 1,143 pirate websites and found a whopping 73 percent to be supported by ads.

Over half were ads of well-known global brands. The report also found several instances of websites containing viruses and malware— something most visitors to pirate websites can attest to.

It could be that brands and advertisers see piracy as a much lesser evil than hate speech—an eminently justifiable position Bharat Kapoor, COO, Strategic IP Information www.ipprotheinternet.com

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Supported Piracy search results. Google has certainly recognised the problem of “badvertising” (to borrow a term from the FICCI-SIPI report) in the context of hate websites.

We live in a cynical age where the public and the commentariat frequently dismiss, even demonise, the interests of copyright owners

What complicates matters is that pirates frequently operate in foreign jurisdictions.

We live in a cynical age where the public and the commentariat frequently dismiss, even demonise, the interests of copyright owners.

For example, we are aware of a case where the producer of a Bollywood blockbuster tracked down a file-sharing website to central Europe.

For many, corporations like Disney and Fox are gluttonous merchants of “free market fundamentalism”, to borrow an expression from the noted copyright scholar William Patry (incidentally, also senior copyright counsel at Google).

The pirates, of foreign origin, hadn’t the faintest clue about Indian cinema, but got wind of the fact that the film was commercially successful and could earn their website thousands of clicks (and, therefore, significant ad revenues).

We also received information that, in 2015, the Indian government had complained to the US government about 500-odd US websites abetting Bollywood piracy.

The list included Google (see below, discussed in a paper by law professor Arpan Banerjee, who shared with us the information):

As the High Court of Ireland observed in EMI v Eircom: “Among younger people, so much has the habit grown of downloading copyright material from the internet that a claim of entitlement seems to have arisen to have what is not theirs for free.”

Furthermore, considering the popularity of illegal downloading, some brands may even feel happy, or at least indifferent, about having their ads on pirate websites.

Consider the screenshots to the right, from the FICCI-SIPI report, showing ads from Facebook and Shaadi (an Indian matchmaking portal) on a pirate website. Both Facebook and Shaadi cater to a young demographic, as does the pirate website. So why should these ads be a problem for either Facebook or Shaadi?

One response could be that a sense of ethics should guide Facebook and Shaadi’s advertising policies.

And while advertisers and brands are easily identifiable, it is hard to argue that the unintentional placement of ads on pirate channels amounts to infringement.

Another argument could be that such badvertising could harm Facebook and Shaadi’s brand image if users end up downloading viruses and malware.

Under these circumstances, dismantling advertising on pirate websites, through a non-litigious arrangement, could be a neat solution for embattled copyright owners.

One could also point out that pirate websites often contain ads for pornographic websites, which Facebook and Shaadi may not like to see their ads being placed next to.

Here, the City of London’s Police IP Crime Unit (PIPCU) has been a

Here, copyright owners will have a fair amount of convincing to do.

Nevertheless, as the old fable reminds us, persuasion is better than force—especially if the latter has to be exercised against inoffensive grandmothers and teenagers. IPPro

PIPCU can also block ads on infringing websites reported to it. Yet, pirates can evade PIPCU actions by migrating to different domains, free speech laws constrain action in many cases, and, most importantly, PIPCU is confined to Britain.

Therefore, effective action against ad-supported piracy can perhaps best arise from a privately ordered arrangement, involving discussions between copyright owners and other stakeholders.

Not necessarily a bad thing. No end-user targeted. No messy lawsuits.

No police. No adverse publicity.

Weatherley has called on to Google to “take the lead” and “maximise the prioritisation of sites with legitimate content” in IPPro The Internet

But why has badvertising on pirate websites and YouTube channels not triggered the same response? It could be that brands and advertisers see piracy as a much lesser evil than hate speech—an eminently justifiable position.

Adding to this are legal complications. Identifying and suing pirates overseas is extremely difficult, especially when many governments are not proactive in enforcing foreign copyrights.

success story of sorts. PIPCU maintains an Infringing Website List for online advertisers to be aware of.

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According to recent news reports, YouTube will impose stricter criteria for the types of videos that can earn money from it, to prevent racist and extremist YouTube channels from benefiting commercially.

This after a host of complaints to Google from reputed corporations, peeved at their ads showing up on hate channels.

Both Facebook and Shaadi cater to a young demographic, as does the pirate website. So why should these ads be a problem for either Facebook or Shaadi?

Bharat Dube, CEO, Strategic IP Information www.ipprotheinternet.com

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WIPO Cases In addition, and not surprisingly, as in 2016, the extension that was the most involved in last year’s proceedings was .com, with slightly more than 70 percent of the contentious domain names. The new extensions now represent 12 percent of domain names in UDRP cases.

If any proof were necessary, these statistics demonstrate the huge success of the UDRP proceedings—faster and less expensive than legal proceedings—which have been widely adopted by major firms around the world.

In 2017, WIPO published its new Jurisprudential Overview 3.0, an up-to-date summary of WIPO case law on UDRP principles, which cites around 1,000 decisions and covers hundreds of questions of substance and procedure. As the main global domain name resource, the WIPO overview consolidates the changes that have occurred in the case law since 2011.

Record Emmanuel Harrar of IPzen explains how brands should take responsive and preventive action against cybersquatting after WIPO cases reached record highs last year In recent years, the number of disputes related to cybersquatting has greatly increased. This fraudulent practice consists of registering a domain name that is identical to or imitates a trademark, with the sole purpose of taking undue advantage of it.

This phenomenon is symptomatic of the new challenges facing companies in the internet era. Massive speculation has grown up around domain names, the economic value of which can sometimes be considerable.

Cybersquatting issues are now settled through UDRP proceedings, which have also seen a recent increase.

When summing up the year 2016, the World Intellectual Property Organization (WIPO), the principal arbitration and mediation centre in charge of such proceedings, observed an exponential increase in these cases.

They reached a record high in 2016 with 3,036 cases handled, representing an increase of 10 percent over the previous year.

According to WIPO, the increase was caused by the creation of new generic top level domain names (gTLD), of which 340 were created in 2016. Cybersquatting proceedings related to these new gTLDs represented almost 16 percent of WIPO cases and concerned 5,374 domain names in total. Domain names .xyz, .top and .club were identified as the new gTLDs that generated the largest number of filings. In parallel, country code top level domains (ccTLD) represented some 14 percent of the cases filed with WIPO, with 74 percent of national domain directors having appointed WIPO to perform the service of settling disputes. Domain names ending in .com were 44

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identified as those being subject to the highest number of filings with a wide majority of 66 percent.

Francis Gurry, CEO of WIPO, responded to this increase in the number of filings by calling for continued vigilance from trademark owners and consumers alike, highlighting the fact that this is even more important as a considerable number of these disputes involve incidents of online counterfeiting.

Last year was no different with 3,074 cases. This only represents a 1.3 percent increase compared to the previous year, however it should be emphasised that this figure has in fact doubled since 2000, the year the proceedings entered into force.

WIPO has shed light on the three most active sectors in domain name disputes. The first position goes to the banking and finance sector, which saw 12 percent of cases; the fashion sector is in second position with 11 percent; and lastly, as would be expected, the internet and information technologies sector, with nine percent. It is not surprising that the cybersquatters prefer these sectors which are highly sensitive domains, or business sectors that are susceptible to infringement. In almost a third of the legal cases related to banking and finance filed in 2017, the plaintiffs also mentioned the practices of fraud, phishing or scams. In parallel, in more than a third of the cases related to fashion in 2017, the plaintiffs alleged acts of copyright infringement.

Concerning the geographic origin of the filings, the US takes the lead with 920 cases, followed by France and the UK with 462 and 276 cases, respectively.

The new WIPO summary also has sections dealing with the principles of consolidation of the cases faced with the allegations of counterfeiting and other illegal activities (such as identity theft) in relation to contentious domain names and their website contents.

In June last year, WIPO also began to provide dispute settlement services for .eu and .se domain names. From now on, the organisation will provide services for 76 country domains of this type.

Among the final recommendations, UDRP selected an administrative procedure that was “fast, effective, profitable” and “uniform for resolving disputes”.

Following a formal process for drawing up policies, reports from the personnel and public comments, UDRP was finally adopted as a consensual policy by the Internet Corporation for Assigned Names and Numbers (ICANN), and then implemented on 24 October 1999.

Since it was adopted, it has acquired and maintained a place as an online tool that is essential and effective for advice on brand protection all over the world. The success rates of the plaintiffs continue to increase year after year, reaching 85 percent This reminds us of the extent to which increased vigilance on the internet is indispensable for the perpetuation of a business. The domain name has become a veritable showcase for undertakings who wish to be visible on the web in order to attract customers, and so making sure none of the names registered by third parties with fraudulent intentions infringes IP rights is an essential reflex for safeguarding the company’s image. Businesses must therefore take both responsive and preventive action.

IPzen: a solution

The UDRP will be 19 years old in August, making it timely to say a few words about its origins and evolution.

By subscribing to one of IPzen’s range of services to defend your rights, you will be able to contemplate your IP rights serenely, without fear of potential misuse. As soon as IPzen detects misuse of your rights by a user, the results will be forwarded to you automatically.

IPzen enforcement is the service specially designed for the transfer or cancellation of a domain name that infringes your rights. IPzen will do the necessary to withdraw any contents that could compromise your commercial interests, and provide you with special support in resolving disputes. Thanks to IPzen, you can also detect and notify the legal services of the social networks of any misuse of user names.

The policy was developed at the end of the 1990s in response to the growth of the internet and to the generalised cybersquatting that followed. At the instigation of the US, WIPO summoned a vast international consultation to envisage solutions to the problem.

You can therefore take advantage of 24/7 monitoring set up in particular on Facebook, Twitter, MySpace, Instagram, YouTube, Dailymotion, LinkedIn, Viadeo, and many other social networking sites, to combat cybersquatting and username squatting. IPPro

Exponentially important proceedings UDRP continues to be an important tool for undertakings all over the world for combating cybersquatting, but also the rise of other types of malevolent behaviour, such as phishing, identity theft and infringement.

UDRP continues to be an important tool for undertakings all over the world for combating cybersquatting

Emmanuel Harrar, CEO and founder, IPzen www.ipprotheinternet.com

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Agricultural Technology � Data management and analytics: Focusing on using machine learning and big data analytics to manage and analyse data on farm and livestock, that can assist farmers to make informed decisions that can save energy, increase efficiency, optimise herbicide and pesticide application, and manage risk. Companies such as Strider, Cibo, Prospera, TL biolabs, Farmnote, Gamaya, CropZilla, and Agralogics are providing data management and analytics solutions. �

Smart irrigation: Systems for monitoring and automating water supply and usage for farms. Companies such as Flowius, cropX, Aquaspy, and Tevatronic are some examples of startups in this area.

Sowing the seeds

� Indoor farming: Indoor farming and hydroponics provide an alternative solution to the agricultural land shortage problem.

InFarm are currently working in this area.

Doris Spielthenner of Practice Insight discusses the recent developments and innovations in the agricultural technology area

Autonomous farming equipment and vehicles plus navigation technology is moving at a fast pace. In some cases, the development is perceived to be even faster than in the standard automobile industry, as these off-road farming vehicles don’t have to deal with standard road challenges such as changing lanes, pedestrians, and other drivers on the road.

There have been a number of interesting announcements recently about innovations in the agricultural technology area, such as precision or automation farming. Developments include:

consumers—the general population. It’s a catch 22 situation, as the population increases so does the demand for food. Yet at the same time, the available land and freshwater for agriculture decreases.

�

Walmart’s new patents on drones for farming automation, indicating a new player possibly planning to enter this space

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AgEagle Aerial Systems’, an automated farming drone innovator, merger with EnerJex Resources, an exploration company

The use of technology to try and overcome these issues is revolutionising the way farming is planned and executed. Because of this, the agricultural technology area continues to grow and so does the patenting activity and the emergence of start-ups.

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Soil sensor manufacturer, Teralytic, deploying LoRa technology from Semtech in their wireless sensors to detect nitrogen, phosphate and potassium levels in soil to reduce waste and improve crop yields

However, this is just a small snippet of the recent developments in this area, which contain business opportunities that law firms should not miss out on. In the second half of this article, I’ll share with you, how you may able to grow your footprint in this market.

The agtech sector in recent years has garnered a lot of attention, not only from the food and agriculture industry, but also the general public due to issues including food or a shortage thereof is an important consideration for the future of humanity as we face the growing effects of climate instability; shortage of farmers and people taking up farming as a profession; and the growing population and its impact on food and land requirements.

Agriculture can be a difficult industry to work in because of its land and freshwater requirements, which directly compete with its

From this we see the emergence of innovative solutions such as: � Robotics and drones: At the forefront of hardware innovation in agtech are the drone manufacturers and service providers that offer monitoring and automating capabilities to farmers. In addition, robots or intelligent farm equipment that can perform farming functions more efficiently is increasing. Examples of start-up companies working in these areas include, Terravion, Blue River Tech, Farmbot, and Mavrx. � Farming sensors: This area is at the heart of AgTech farming.

Collecting data on crop health, weather, soil quality and moisture levels with the help of farming sensors will increase farming efficiency. Centaur, Spensa, Phytech, and Sencrop are all examples of companies working in the farming sensors area. �

Farm management platforms: These platforms allow farmers to efficiently manage their resources, crop and yield production and livestock. Companies such as AEGRO, Farmlogs, Agriwebb, and Farmdok are producing new technology developments in this area.

Disclaimer: All this information is publicly available under registered sources for different jurisdictions. The screenshots and numbers in this article have been identified by using software, Filing Analytics, developed and managed by Practice Insight, which collects these information points from diverse sources and makes the data readily available and easily searchable, whilst also providing further data analytics.

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The agricultural technology field is filled with many business development opportunities for attorneys and law firms to obtain, as innovative start-ups produce new patents. Keeping in mind that there is the disadvantage of a low volume of work while they are in their infancy. While corporates may offer higher volumes, trying to establish a new business relationship with them can be a difficult and time consuming process.

Further, many corporates will do their filing in-house or have a preference for using an established group of law firms.

For example, Bayer CropScience AG is a fairly ‘captured’ client, as they regularly use the same law firms to represent them in various jurisdictions, but more importantly they self-file a large volume of their work.

What this means is that although the overall filing volume by Bayer CropScience is large, only a small portion of it is available for external law firms, and possibly none at all for any new law firms to try and obtain.

Another example of where a corporate already has many pre-existing business relationships with law firms is Monsanto. While Monsanto doesn’t have a large volume of self-filed applications, they appear to have very strong existing business relationships with external law firms, who get regular filings from them year by year. A snapshot of the PCT case flow for Monsanto LLC (US) from Filing Analytics displays this aspect clearly. Please note that law firm names have been replaced with generic titles such as “law firm A”.

However, startups have only a few patent filings due to their infancy and they usually work with one or at the most, a few law firms. Selffiling is rare, as startups tend to focus more on building their business rather than in-house legal capability. For example, the following agtech start-ups work solely with one law firm: Terravion works with Perkins Coie LLP; Strider Labs works with Kahler Käck Mollekopf, Infarm GmbH has worked with Reiniger und Partner for their EP and DE filings; and Centaur Inc is represented by Polsinelli Shugart in the US. It is quite possible that these startups will increase their patent filings and then widen their representation options in the future. It’s also possible that if the start-up doesn’t already have a law firm representation in your jurisdiction, then perhaps you can grab the opportunity to be their representing law firm.

As the field of agtech area continues to grow, law firms should weigh up the time and expenditure they would need to invest to break into the market of being a preferred law firm for an existing corporate, against obtaining work from agtech start-ups. Especially, as the start-up business for your law firm could increase significantly in a one- to five-year period.

The growth and pace of innovation in this field and the opportunities to work with many startups certainly makes it a clear case on why law firms already working in related areas (automotive, high tech and electronics, automation and robotics) should not overlook the ripe business development opportunities in agricultural technology. IPPro

As the field of agricultural technology area continues to grow, law firms should weigh up the time and expenditure they would need to invest to break into the market of being a preferred law firm for an existing corporate, against obtaining work from agtech start-ups Doris Spielthenner, general manager, Practice Insight www.ipprotheinternet.com

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Industry Events

The world’s premier IP directory

ECTA

IP Law Europe Summit

Athens

Montreux

June 2018

June 2018

13-16

21-22

ecta.org

events.marcusevans-events.com

IP Law Summit

Global IP UK Exchange

Irving, TX

London

June 2018

June 2018

24-26

events.marcusevans-events.com

26-18 globalipexchangeuk.iqpc.co.uk

www.ipproconnects.com 48

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www.ipproconnects.com

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Industry Appointments

Movers and shakers at Fish & Richardson, Foley & Lardner and more Fish & Richardson has added Elizabeth King to its Houston office as of counsel.

King, who has 20 years experience in domestic and international trademark law, joins the firm’s trademark and copyright group.

She is a skilled litigator with experience in handling trademark infringement cases in federal courts, before the US Court of Appeals for the Federal Circuit, and before the US Patent and Trademark Office (USPTO).

King previously served as principal partner at Sutton McAughan Deaver, as well as serving as examining attorney at the USPTO. Cynthia Walden, group leader of Fish & Richardson’s trademark and copyright practice, commented: “[Elizabeth King] is a top-notch attorney with impressive expertise developing global trademark protection strategies for large clients with complex issues. She will be a valuable resource for our clients and a great addition to our deep bench of seasoned trademark and copyright lawyers.”

Foley & Lardner has merged with Gardere Wynne Sewell.

The newly combined firm will have 1,100 lawyers in 24 offices across the US, Mexico, Asia and Europe.

As part of the merger, Foley will expand geographically in intellectual property to Texas, while deepening the practice to benefit the rugged business climate of the state.

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Holland O’Neil, chair of Gardere Wynne Sewell, commented: “Both Foley and Gardere have historically been recognised for a commitment to client service and an ability to counsel clients through their most multifaceted legal and business challenges.”

“By integrating our resources, we’ll have distinctive capabilities and channels to provide our clients with strategic and innovative counsel, ultimately continuing to enable our shared client-first culture.”

Jay Rothman, Finley & Lardner Chairman & CEO, added: “In short, Foley and Gardere are better together.”

Barnes & Thornburg has added Mark Nelson as partner to its intellectual property department in Dallas.

Nelson has more than 20 years experience in handling large multifaceted patent litigation cases. His practice covers a wide range of areas including telecommunications, gaming, semiconductors and more.

Nelson commented: “The firm places incredible emphasis on putting clients first by providing first-class legal work at a fair and reasonable price. I’m excited to be part of the growth of the Dallas office.”

Mark Bayer, managing partner of Barnes & Thornburg Dallas office, added: “Having someone with his reputation will help us grow the IP department in Dallas and will attract other practitioners that sync with our core practices, client base and firm culture.” IPPro