Unwrapping the IP in Christmas Jumpers

As the Christmas season sparkles with festive lights, the Christmas jumper takes centre stage on 7th December – Save the Children’s ‘Christmas Jumper Day’. Beyond the (often naff) designs and cozy knits, there’s a fascinating intersection between creativity and the law. We take a look at how copyright and trade marks play a crucial role in the designs of these jolly jumpers.

Copyright in Christmas Jumpers

Christmas jumpers are more than just seasonal fashion; they are canvases for creativity. Patterns, illustrations, and whimsical slogans are all expressions of artistic ingenuity, and are protected by copyright. This protection, however, doesn’t cover how the jumper is made but rather focuses on preserving the original and expressive elements that make the festive design special.

For creators, understanding the boundaries of copyright is important, and ensuring that your Christmas jumper design is original is essential – using someone else’s work on your jumper isn’t just lacking in Christmas spirit, it infringes that person’s copyright.

Trade Marks and Christmas Jumpers

Moving on from the traditional designs, in the realm of Christmas jumpers, trademarks now play a role beyond merely identifying the retailer that you buy the jumper from. Last year saw the launch of the Primark x Greggs Christmas jumper, replete with the Greggs logo and their iconic sausage rolls. This year, Primark has a Christmas jumper collaboration with Subway (the sandwich people) and, of course, the 2023 Christmas jumper scene wouldn’t be complete without a pink one from Barbie (in both Adult and mini-me sizing!).

Trademark protection isn’t limited to brand logos though. It can also extend to the distinctive look and feel of a Christmas jumper line, provided it has become synonymous with a specific brand. This legal safeguard not only preserves market share but also adds an extra layer of protection to a brand’s identity in the ever-evolving landscape of festive fashion.

So what is Christmas Jumper Day?

Christmas Jumper Day is an annual event by Save the Children, which raises funds for children in need. Launched in 2012, it has now become a Christmas tradition. Each December, countless individuals don their most festive sweaters, donate £2 to Save the Children, and contribute to creating a brighter future for children in the UK and worldwide.

Last year it raised a staggering £5 million, which included £2 million in matched funding from the UK government. Over 2 million school children and 24,000 workplaces took place, wearing their Christmas jumpers and raising money. This collective effort has made a significant impact on improving the lives of children. You can sign up here.

Merry Christmas, one and all!

As we eagerly anticipate the arrival of Christmas, the story behind Christmas jumpers unveils a captivating narrative of IP protection, fun and fundraising. Copyright and trademarks not only preserve the creative spirit behind each jumper but also contribute to a rich and diverse market. Beyond the legalities, they serve as guardians of the magic woven into every festive stitch, reminding us that the joy of the season is not just in the garments we wear but also in the creative minds that bring them to life, and the lives we can improve by wearing one.

Navigating the complexities of IP is not just for Christmas so if you need trademark or patent advice, get in touch here to speak with one of our experienced attorneys.

Offshore Wind Energy patent trends give insights into sector evolution

The Offshore Wind Energy sector continues to grow, driven by ongoing innovation and a focus on sustainability. The European Patent Office (EPO) and the International Renewable Energy Agency (IRENA) have just released a comprehensive report on the sector, looking at patent trends and analysing what they can tell us about market dynamics and technological advancements, and considering policy implications.
So, given the importance of Wind Energy to the World’s fight against climate change, what does the report tell us about how the technology – and the sector – is evolving?

The report analyzes global patent filings from 2002 to 2022 in offshore wind energy technologies. Patent filings are good indicators for innovation, commercialization, and knowledge transfer trends across international markets. They can offer insights into technology shifts and identify emerging players or consolidation efforts.

The report looks at how recent patent activity is addressing key technological challenges in the offshore wind energy sector. It is based on an assessment of approximately 17,000 patents related to offshore wind energy, covering inventions in fixed and floating foundations, towers, mechanical power transmission, blades and rotors, hybrid systems, energy storage, and grids and submarine cables.

Key findings from the report include a surge in global patent filings from 2006 to 2012, with floating foundations, transportation, and mechanical transmission being prominent areas of invention. The report also provides important policy insights, such as the dominance of European, Asian, and U.S. markets in offshore wind invention, with Germany and Denmark leading the way. Interestingly, China is seen to have more focus on domestic patents than international filings, indicating a reliance on a strong domestic market.

The report also found increasing innovation in floating foundations, logistics, and green hydrogen production. Notably, it has identified rising interest in combining offshore wind with electrolysers, indicating expectations of a substantial green hydrogen economy.

Other trends discussed in the report include: the expansion of offshore wind markets through floating foundations; alternative designs for towers and blades to enhance sustainability; increased use of rare earth materials in drive trains; on-site energy storage coupled with hydrogen production; and the uptake of submarine electrical infrastructure.

How important is Offshore Wind Energy in transitioning to clean energy?

Climate change is already affecting economies worldwide, so governments and stakeholders are aware of the need to take action to address the global climate emergency. The 2023 edition of the International Renewable Energy Agency’s (IRENA) World Energy Transitions Outlook concluded that a transition to renewable-based energy is crucial in the battle against climate change, but the current pace of transition is not fast enough.

To limit global warming to the target of 1.5°C above pre-industrial levels, a reduction of approximately 37 gigatonnes (Gt) of carbon dioxide (CO2) emissions from 2022 levels is necessary to reach net-zero scenario in the energy sector by 2050. This can only be achieved with a significant transformation of energy systems, including the extensive deployment of renewable generation capacity. Offshore wind is expected to play a significant role, reaching nearly 2,500 GW generating capacity by 2050 – a 40-fold increase from the 63 GW recorded in 2022. This positions offshore wind as a key technology in achieving global climate targets in the next three decades.

However, the deployment of offshore wind faces challenges – including the price of raw materials increasing, integration into energy systems through new interconnections, supply chain bottlenecks, and the need for larger turbines, with more robust foundations – which need to be addressed to accelerate the sector’s contribution to the energy transition. As the report highlights, innovation in many of these areas is underway.

The Cost-Competitiveness of Offshore Wind

Offshore wind stands out as a cost-effective solution for supplying electricity to densely populated coastal areas, given its offshore location, high energy output per square meter, and the ability to scale up quickly to gigawatt levels.

Technological advancements, particularly in larger turbines with extended blades, higher hub heights, and exploration in locations farther from shorelines, have contributed to higher generation capacity factors. The report highlights the potential for significant progress through ongoing research and development efforts, leading to continuous technological improvements.

Originally, offshore wind farms were positioned closer to shore and in shallower depths. However, advancements in wind energy technology have facilitated a shift to greater distances from the coast and into deeper waters. This shift has been made possible by stronger and more consistent wind further out from the coast, and presents opportunities for countries with substantial seabed drops, including the UK.

What do the Patent trends tell us about how Offshore Wind Energy is developing?

The number of granted patents serves as a strong metric for assessing quality of innovation in a sector, and its economic significance. Granted patents are particularly valuable indicators as they signify technology that the granting Patent Office considers to be new and inventive, and can be expected to relate to commercial products.

A growing number of granted patents indicates a commitment by patent owners to invest resources in safeguarding their market share, showcasing the potential for income generation from their inventions.

The report looks at patent trends in the number of applications filed, where they are being filed, which companies are filing and what areas of technology dominate.

The EPO, US, China and Denmark take the top four places by number of patent applications filed annually. The Danish firm Vestas stands out as the lead patent filer in offshore wind energy technologies, showing remarkable levels of patent activity. Patent applications are being filed in seven areas of technology associated with offshore wind energy. These are: 1) Fixed and floating foundations; 2) Towers; 3) Mechanical power transmission; 4) Blades and rotors; 5) Hybrid systems; 6) Energy storage; and 7) Grid, submarine cables, and protecting them.

You can read the full report here.

Interested in a bespoke report, to give you an overview of the patent landscape in your specific area of technology? Get in touch to start a conversation with one of our patent attorneys.

Do Autonomous Vessels float your boat?

With the prevalence of electric vehicles and the advancement of automonous vehicles, we are all now becoming more and more familiar with new technology and automation on our roads, but have you ever considered what goes on out at sea?
In our latest article, our patent attorney and technology expert Coreena Brinck tells us more about what excites her about Maritime Autonomous Surface Ships (MASS) and the mind-blowing capability of the technology which powers them.
So the question remains – do autonomous vessels float your boat?

They do for me, Dr Coreena Brinck, a consultant patent attorney here at Two IP.

From time to time, I like to reflect on tech areas I’ve particularly enjoyed working with and Maritime Autonomous Surface Ships (MASS) definitely makes my top five.

Patenting technology utilized at sea has its own challenges, but this is a typical area where we are likely to see significant increases in patent filings in the next few years as technology is developing at a terrific pace, and no doubt given the stakes, more patent litigation.

MASS Capabilities: past, present and future

MASS have been around for a long time as a concept, but even as recently as 2016, huge challenges for making true MASS a reality remained (see this collaborative study by Rolls-Royce here if you are interested). Move on just five years to 2021 and development was progressing at a pace where the International Maritime Association conducted a regulatory scoping exercise on how existing maritime regulation could apply to ships with some degree of automation and a goal-based MASS code is now on track for being rolled out in 2025.

So why do I find MASS technologies so interesting?

Well, it is not just that it is kind of clever. A MASS may have capabilities ranging from simple automated processes and decision support to taking fully autonomous decisions and actions, A MASS involves advanced hardware (think control systems for the operation of the ship, navigation systems, control over (un)loading equipment etc.) as well as advanced software. Sailing in tidal waters, whether in a small boat or a gigantic container ship, involves understanding currents, wind, weather, and tides for autonomous navigation, hazard management, and manoeuvres such as docking and undocking, which are all pretty challenging for an AI system to safely control. I will admit all of this makes the tech pretty interesting to my nerdy brain.

Nor is it that working on this sort of technology reminds me how I used to really enjoy getting out on the water. These days it’s more likely to be on a SUP, but I’ve enjoyed sailing on small boats and have even hazarded a passage crossing the English Channel in the past! And I confess I still look forward to going out again on a sailboat at some blurry point in future on a fine day with a stiff breeze.

I also enjoy this sort of technology as it offers a greener future. Norway in particular sees MASS as helping to take freight traffic off roads. Here in the UK, it could also make a big difference if there was more coastal freight, although I can’t help but also think of our inland waterways and the benefits autonomous vessel technology could bring if more use could be made of our historic canal networks. Alas, in the UK so many of these have been neglected that it is unlikely autonomous vessel technology on canals could transform the UK freight industry.

Why is regulation in this area so important?

Well, similar to the way that regulations and standards operate in the autonomous vehicle space, compliance with regulation ensures a higher degree of safety. Different MASS operators can be more confident that MASS made by different compliant manufacturers will behave in a safer and more predictable way, which is vital for MASS AI systems to operate optimally and ensure safety of life at sea, safety of cargo, and of the MASS itself.

Where is the future of MASS heading?

There are four stages of autonomous vessel technology, and we are already teetering on stage 3:

  • Degree one: Ship with automated processes and decision support. Seafarers are on board to operate and control shipboard systems and functions. Some operations may be automated and at times be unsupervised but with seafarers on board ready to take control.
  • Degree two: Remotely controlled ship with seafarers on board. The ship is controlled and operated from another location. Seafarers are available on board to take control and to operate the shipboard systems and functions.
  • Degree three: Remotely controlled ship without seafarers on board: The ship is controlled and operated from another location. There are no seafarers on board.
  • Degree four: Fully autonomous ship: The operating system of the ship is able to make decisions and determine actions by itself.

If you want to find out more about IMO regulation for autonomous vessels, click on this useful link here.

Exciting times loom ahead and I’d love to work again on this type of tech going forwards.

If you want more advice on patenting an invention which relates to MASS, then contact Dr Coreena Brinck via our website here or by emailing her at hello@two-ip.com.

How to significantly increase your chances of getting VC startup funding

The European Patent Office (EPO) and European IP Office (EUIPO) have recently released a study looking at the finance and exit performance of European startups – it found that innovative startups with patent and trade mark applications are 6 times more likely to get VC funding and more than twice as likely to make a successful exit for investors and founders.
We take a look at the study’s findings and discuss why, if you are a startup, protecting your Intellectual Property (IP) might give you so much advantage.

What did the study find?

Filing patent and trade mark applications in the seed or early growth stages is associated with a higher likelihood of obtaining VC funding. The effect of applying for IP protection in the early stage is particularly noticeable. Startups that have filed trade mark applications are 4.3 times more likely to get seed funding, and for those that have filed patent applications the effect is even more significant – they are 6.4 times more likely to receive seed funding.

The positive effect of IP protection is even stronger in the early growth stage. Startups with an EU trade mark application have a 6.1 times higher likelihood of obtaining early-stage funding and those that have filed a national trade mark application are 2.8 times more likely to obtain funding, compared to startups with no trade mark protection. European patents/applications are associated with a 5.3 times higher likelihood of obtaining early-stage funding, and startups that have filed national patent applications are 3.8 times more likely to be successful in early-stage funding rounds, compared to startups with no patent applications or patents.

And the effect continues at exit. Companies that have filed patent and/or trade mark applications are more than twice as likely to result in successful exit for investors, with a higher likelihood being observed for companies that have obtained European patents and/or trade marks than for those that only have national patents and/or trade marks.

On average, across all areas of technology, 29% of European (including the UK) startups have applied for national or European patents and trade marks. Biotechnology is by far the most IP  intensive sector, with nearly half of startups obtaining patents or registered trade marks. Other IP-intensive sectors include science and engineering (25% file patent applications and 38% file trade mark applications), healthcare (20% obtain patents and 40% trade marks) and manufacturing (20% obtain patents and 36% obtain trade marks).

You can find out more by listening to the EPO Podcast episode about the study, its methodology and its findings here.

Why does IP protection have such a positive effect?

For many VC investors, reviewing a startup’s IP portfolio is one of the key assessments that they make when deciding whether or not to invest, and on what terms. So why does IP protection matter to VCs?

A strong IP portfolio can give a startup a significant competitive advantage, with patent protection in particular offering potential market dominance and higher revenue potential. The ability to prevent others making or selling competing products also protects the VC investors’ funds – a strong patent portfolio can create a significant barrier to entry into a new technology area, discouraging both established competitors and those looking to move into the sector from attempting to copy your technology.

A strong IP strategy is also critical to a startup achieving its business goals and growth potential. All companies have a business strategy and technology led companies have an R&D strategy that supports the business strategy. The most successful technology led companies also have an IP strategy. You can read more about what to include in your IP strategy in our blog article here.

Ownership of patents, trade marks and designs is associated with better performance in terms of job creation and productivity (revenue per employee). And companies are active in obtaining IP rights are more likely than other companies to experience high growth in subsequent years. VC investors are looking for both.

IP rights can also be valuable business assets in and of themselves, which can also influence the funding amount that a VC is willing to offer in return for an equity holding in the company. It is also worth remembering that IP can be licensed, or used as the basis for strategic partnerships, both of which can generate income. VCs are looking for a plan to monetize the IP rights in a startup as both can potentially result in higher returns on their investment.

And finally, like everyone, VC investors want to avoid pain. Investing in startups can be a risky business, and VCs generally aim to mitigate those risks as much as possible. Strong patent and trade mark protection, as well as a good understanding of the IP landscape and Freedom to Operate (FTO) within it, mitigates those risks. Expect any VC worth their money to take a long, hard look at your portfolio and to ask difficult questions about FTO.

How can we help?

For startups, both IP protection and funding are critical – we can help you with getting appropriate IP protection. For VC investors, there is a need to be able to screen and evaluate startups that are developing original products – we can assess IP portfolio’s and advise on how strong they are.

Are you in the early stages of a start up business or a VC investor looking for expert help?

For guidance, support and advice from our team, contact us by email here or visit our website www.two-ip.com.

Priority Claiming: changes from the EPO

In our latest article, Two IP patent attorney Dr Coreena Brinck brings us up to date with latest changes at the EPO following a recent decision related to Priority Claiming.

The European Patent Office Enlarged Board of Appeal (“EboA”) recently handed down a joint decision on two cases, G1/22 and G2/22, that could make challenging the right to claim priority much harder at the EPO. It may also have a similar effect on priority claim challenges at the Unified Patent Court for proceedings involving unitary patents obtained via the EPO and for proceedings involving nationally validated EP patents brought before the UPC or national courts.

A priority right allows a patent application to benefit from an earlier patent application’s filing date when assessments are made regarding what prior art is relevant for novelty and inventiveness. If a document is found which was published within the priority year, the maximum time period for which priority can be claimed, attacking the priority right can mean the difference in a patent dispute between winning and losing.

The legal right to claim priority is, however, separably assignable from any rights to a patent for an invention. It is not unusual to file a patent application and later confirm the assignment of the right to an invention (including the right to claim priority) with a confirmatory agreement between the inventor(s) and the patent applicant(s). If there are changes in the inventor(s) or applicant(s) during the priority year, the right to the invention and to claim priority should be assigned to the new applicant(s) before any subsequent applications needing to claim priority are filed.

Handling issues like this is bread and butter work for patent attorneys providing, of course, they are made aware of any changes in sufficient time so that the right to claim priority is executed before the end of the priority year. The EPO decisions on G1/22 and G2/22 do not change how important it is to keep your patent attorney informed of any change of ownership or company structure so all necessary assignments are executed within the priority year. This ensures that the right to claim priority has been assigned in good time and can be validly claimed.

The specific circumstances around G1/22 and G2/22 address some of the problems with priority which may arise where the applicants change during the priority year and an international PCT patent application is filed with different applicants for different states. The appeals to the EboA which resulted in the decisions set out in G1/22 and G2/22 were requested by two EPO technical BoAs hearing cases T1513/17 and T2719/19 (OJ EPO 2022/A92). In these two cases, the EPO Opposition and Examining Divisions had to decide if the priority claim for the disputed patents was invalid. The inventors were named as applicants in a US patent application. In a subsequent PCT application, as was common at the time it was filed, the inventors were also named as applicants but only for the US, with the European applicants being separately designated. As there was intermediate prior art being used to attack the validity of the patents, making the priority claim vital, the European applicants sought to imply there was an assumption of an assignment of the priority right by virtue of the inventors being named as applicants for the US in the PCT patent application from which the EP patent application was derived. If successful, this could allowed them to benefit from the EPO approach when there are co-applicants designated in a subsequent EP filing application claiming priority from an earlier application that there is an assumed agreement between the applications to jointly claim priority.

The EP technical divisions hearing the oppositions referred to the Enlarged Board of Appeal on the following questions:

I. Does the EPC confer jurisdiction on the EPO to determine whether a party validly claims to be a successor in title as referred to in Article 87(1)(b) EPC?

II. If question I is answered to the affirmative:

Can a party B validly rely on the priority right claimed in a PCT-application for the purpose of claiming priority rights under Article 87(1) EPC in the case where

    1. a PCT-application designates party A as applicant for the US only and party B as applicant for other designated States, including regional European patent protection and
    2. the PCT-application claims priority from an earlier patent application that designates party A as the applicant and
    3. the priority claimed in the PCT-application is in compliance with Article 4 of the Paris Convention?

These were answered as follows:

I). European Patent Office is competent to assess whether a party is entitled to claim priority under Article 87(1) EPC.

There is a rebuttable presumption under the autonomous law of the EPC that the applicant claiming priority in accordance with Article 88(1) EPC and the corresponding Implementing regulations is entitled to claim priority.

II). The rebuttable presumption also applies in situations where the European patent application derives from a PCT application and/or where the priority applicant(s) are not identical with the subsequent applicant(s).
In a situation where a PCT application is jointly filed by parties A and B, (i) designating party A for one or more designated States and party B for one or more other designated States, and (ii) claiming priority from an earlier patent application designating party A as the applicant, the joint filing implies an agreement between parties A and B allowing party B to rely on the priority, unless there are substantial factual indications to the contrary.

What does this mean in practice?

These decisions raise the bar for providing evidence challenging that the right to claim priority was not effectively assigned in quite specific circumstances. Good practice remains executing all necessary assignments to the invention and of the priority right as soon as possible in the priority year.

If you would like support from our experienced patent attorneys to understand how this change could affect you, contact us via our website here.

EPO ends the ‘10 day rule’

The EPO ‘10 day rule’ on letter delivery ends on 1st November 2023.

Historically, the EPO sent out letters to applicants and their representatives by registered post. To make sure that nobody was disadvantaged by the differing lengths of time postal delivery took from the EPO to the various member countries of the European Patent Convention (EPC), Rule 126 EPC set out that letters were deemed to be delivered on the tenth day following it being handed over to the postal service (i.e. the date on the letter).

This is important because many time limits on European patent applications and patents are calculated from the deemed date of delivery.

Now that approximately 99% of communications from the European Patent Office (EPO) are sent electronically, the EPO is ending application of the ’10 day rule’, on the basis that it’s just not needed any more.

From 1st November 2023, all documents (decisions, summonses, notices and communications) sent by the EPO will be deemed to be delivered on the date given on the document. All time limits for any document dated on or after 1st November 2023 will be calculated from the date on the document – NOT 10 days later.

For any documents dated before 1st November 2023, the 10 day rule continues to apply for calculation of time limits.

The EPO has provided a handy illustration of this change, and how it affects time limit calculation, which you can see here: OJ EPO 2023, A29 – Notice from the European Patent Office dated 6 March 2023 concerning amended Rules 126, 127 and 131 EPC

Many attorney firms have routinely used the 10 day rule when docketing deadlines for responding to EPO communications, so will need to change their docketing systems to reflect the new regime. At Two IP we have always preferred to keep the 10 days in our back pocket as an emergency bit of extra time in the case of receiving very late instructions from a client or overseas attorney firm, so our systems are already fully compliant.

The rule change will make the calculation of time limits much simpler – if you add the 10 days at the end rather than the start, you can quite easily get the time limit wrong.

To ensure you stay up to date with any future procedural changes, join our mailing list to receive our monthly newsletter directly to your inbox.  Click here to sign up.

Enforcing patents in EU coastal waters

Two IP patent attorney Coreena Brinck recently spoke at the FICPI 21st Open Forum. In this article, Coreena shares some key points from her presentation ‘Enforcing patents at sea’, looking at how protection for shipping technology in EU coastal waters has been strengthen by the introduction of the Unitary Patent (UP).

Patent holders may not realise this but patent protection in the EU for technology which is essential onboard vessels gains hugely if they opt for the Unitary Effect when their European patent is granted. Not only does a Unitary Patent (UP) provide protection in 17+ EU member states but it also benefits from a more limited exclusion for vessels which are accidentally or temporarily within that territory.

Individual EU member states (as well as the U.K. which is no longer part of the EU) with coastal waters include exemptions from patent infringement for visiting vessels which are not registered in that specific state. For the UP however, the exemption applies only to vessels not registered in any of the EU member states where the UP has legal effect.

This means that legal action could be taken by a UP rights owner or a suitably authorised licensee in, say, France against a vessel flying a Maltese flag (Malta being one of the major shipping registers) even if that vessel was only temporarily or accidentally docked in France. If instead the European patent had been validated individually in Malta and France, then legal action could only be taken when the vessel was in Malta, as it would be flying a foreign flag in France and so entitled to the exemption if it had to temporarily or accidentally dock there.

What does this mean for ferry crossings in Europe? A recent U.K. case addressed the meaning of ‘temporarily’ in this context and found ferry crossings using vessels registered in a WTO member state or a state signatory to the Paris convention were also entitled to the exclusion if that state was not the state where the vessel was temporarily visiting. So for example a vessel registered in Ireland used for a ferry crossing to the U.K. is entitled to claim the exemption from infringing a U.K. patent. A U.K. registered vessel which is only temporarily docked in the U.K. and sat used on the same ferry service however would not be entitled to claim the exemption.

So for example, ferry crossings between say France and Italy by a vessel registered in Malta are now likely to infringe a UP when they are temporarily docked in either country whereas previously they would not be considered to have infringed either an Italian patent or a French patent!

If you are interested in finding out more on this subject, you can contact Two IP patent attorney Coreena Brinck here.

Recent EPO Boards of Appeal decisions & referrals

Two IP founder and patent attorney Anna Molony shares her notes from a recent EPO case law review session that she led for one of her clients. If you would like Anna to present this as a case law review session for your team, get in touch with Anna here.

As the EPO continues to tie itself up in knots over the description amendment requirements introduced in the 2021 Guidelines for Examination, I thought it would be interesting to have at look at some recent decisions in this area – and a possible referral to the Enlarged Board of Appeal. ViCo oral proceedings aren’t going away, so you may be interested in the EPO’s thoughts on witness credibility in them. And we have our first referral to the Enlarged Board for 2023, so let’s have a quick look at that too.

DESCRIPTION AMENDMENTS

T2391/18: When is it necessary to amend the description of a patent post-grant?

EP1872074  – Relates to equipment for processing scrap metal   Tenova S.p.A.

The decision in T 2391/18 related to the decision of the Opposition Division to maintain EP 1872074 as granted. During the opposition appeal the Patentee filed amended claims and an adapted description.

Amendments in Opposition should be occasioned by a ground of Opposition (Rule 80 EPC). A lack of clarity under Article 84 EPC is not a ground for Opposition, except in cases where the lack of clarity arises solely as a result of a post-grant amendment (G 3/14). Adaption of the description in opposition is not appropriate unless a new discrepancy between the description and the claims had arisen as a result of a post-grant amendment.

T 2391/18 confirms that a granted patent cannot be invalidated solely on the grounds that the claims are unclear because the description was not adequately adapted before grant (Article 84 EPC). However, it would also appear from T 2391/18 that any amended claims submitted during opposition that include limitations not present in the granted claims should always be accompanied by a corresponding amended description.

T450/20: The risk of pre-grant description amendments

EP2254485 – Relates to a stent for unblocking blood vessels.

The decision held that the description of a patent could not be mined for a definition limiting the meaning of the claims. However, the Board of Appeal did find it permissible to use functional language from the description to construe the claims.

The Board also ruled out any role for the description of the patent application in claim interpretation. Instead, according to the Board of Appeal, only the description of the granted patent may be used for claim interpretation under Article 69(1) EPC, regardless of whether the description was adapted prior to grant.

T56/21: Board of Appeal poised on the brink of a referral to EBA on description amendments

EP3094648 “FC-REGION VARIANTS WITH IMPROVED PROTEIN A-BINDING” F. Hoffmann-La Roche AG (Representative Roche Diagnostics GmbH)

Both the Board of Appeal (3.3.04) and the appellant (Roche) in the case are the same as in T 1989/18, the first Board of Appeal decision to find a lack of legal basis for the description amendment requirement.

The Board of Appeal in T56/21 is poised on the point of a referral to the EBA on the issue of description amendments and claim interpretation.

VICO ORAL PROCEEDINGS

T423/22: Assessing witness credibility during ViCo opposition oral proceedings

EP2202099 “RFID enabled tire control system and method” The Goodyear Tire & Rubber Company

Opponent: MICHELIN Recherche et Technique S.A.

Board of Appeal considered whether a witness’s credibility can be properly assessed during ViCo oral proceedings.

Catchword: Hearing a witness in first instance proceedings by videoconference allowed sufficient interaction between the deciding body, the parties and the witness. Albeit a part of the witness’ body language was not visible to the participants, this did not amount to an infringement of the parties’ right to be heard since the judgement on the witness’ credibility was mainly based on the conclusiveness of his/her testimony and the absence of contradictions within the witness’ own testimony, between the testimonies of several witnesses and/or contradictions between the witness’ testimony and information derivable from supporting documents

PRIOR USE

G1/23: When is prior use of a product excluded from the prior art for lack of enablement?

This first referral to the EBA of 2023 seeks clarification on the enablement test for prior use of a product.

Relates to T0438/19 [EP 2626911, for Polymers for coating and protecting solar cells in solar panels]

The referral asks whether the non-enabling prior use of a product excludes the composition of the product from the prior art or whether it also excludes the product per se (i.e. so that it cannot be used as a starting point for inventive step).

The referral also seeks clarification over the definition of enablement with respect to the prior use of a product, and particularly whether “enablement” requires that the skilled person be able to fully analyse and reproduce the exact same product.

Audit the Intellectual Property in your business, with funding available through Innovate UK

Two IP consultant trade mark attorney Rachel Havard discusses the IP Audits Plus scheme for SMEs, and possible government funding available, for applications made through Innovate UK Edge.

As a trade mark attorney, it is fascinating for me to carry out a deep dive into the present and future interests of a business, to be able to offer well informed advice upon how to identify and protect valuable intellectual property (“IP”) rights, insofar as they might exist now, are able to be protected, or could be created for protection in the future.  Working closely with patent attorney colleagues, I have had the pleasure of conducting many IP audits over the years, for businesses in diverse and often rather unusual markets.  My blog below sets out available options, and how these could help your own business.

Possible government funding for IP audits

The IP Audits Plus scheme, available through Innovate UK Edge, enables qualifying SMEs to receive a £2500 (inc. VAT) contribution from the UK Intellectual Property Office (“UK IPO”) towards an IP audit to the value of £3000 (inc. VAT).  As such, for a payment on their part of only £500 (inc. VAT), the business can receive a thorough assessment of its position in relation to IP rights available to them, along with recommendations for optimising their protection.  

The IP Audits Plus scheme is a competitive grant-funding scheme, open to SMEs ranging from start-ups to already high turnover businesses, if they have witnessed, or are expecting, strong growth, and IP will be significant to the development and commercialisation of the product/service allowing the business to grow.

Should IP audit funding be granted, future costs for protection of identified IP will usually need to be incurred, but the audit process will result in a clear set of recommendations for efficient protection where it really matters, along with dos and don’ts to effectively maintain that protection, to avoid infringing third parties’ IP rights, and with a strong steer towards the most cost effective, tailored approach for the business concerned.

Applications and process for IP Audits Plus through Innovate UK Edge

The audit would need to be applied for with the assistance of a regional Innovation and Growth Specialist from the Innovate UK Edge network of such advisors.  Should the application for audit funding be granted, the recipient needs to appoint IP attorneys, such as Two IP, to carry out the audit. The audit report would require submission with the UK IPO by a specified date, usually within a couple of months, to enable their release of the government funding payable to the selected IP attorneys, with the audit recipient to pay the remainder.

The audit process will often begin with a fact finding meeting or visit of your business from the selected IP attorneys.  As part of the process, we would explore the following and related areas, and develop the audit report from the information gathered, adding our own strategic recommendations:

  • Scope of your business, both technical and geographic, looking at the present, but also future possible directions or expansion;
  • Existing IP in your ownership – which could include registered IP such as registered trade marks, design registrations or granted patents, or automatic rights not requiring registration, such as copyright or unregistered design rights;
  • Potential IP ownership issues or contractual considerations;
  • IP rights capable of protection, yet to be sought;
  • Potential threats to and opportunities for protecting, enforcing, and exploiting your IP;
  • Possible bars to use and/or registration of your IP;
  • Recommendations and cost estimates for bolstering and managing your IP, so placing you in the best position to benefit from it.

You would receive a detailed report upon the above, for discussion with your Innovation and Growth Specialist, ahead of sign off for release of the funding. The chosen IP attorneys will usually offer a follow up consultation to agree next steps, but you could likewise take your audit report away to other IP attorneys to progress in the future.

What next?

The IP Audits Plus scheme is offered as part of a much broader package from Innovate UK Edge, and they should be your first port of call if considering an application under this scheme.  See further details here.

As this is a competitive process, Innovate UK Edge will assess the capability of a particular business to benefit from an IP audit, with an eye to future possible returns and, particularly, high growth prospects.  They would look to match your business with one of their Innovation and Growth Specialists with relevant experience and expertise, who could offer advice on internationalisation, sales and marketing, and other business growth areas, including assisting in completion of the application for funding under IP Audits Plus, should they consider that appropriate.  

Should you be granted the funding for an IP audit, you could then appoint your preferred firm of IP attorneys, who would work with you and with your Innovation and Growth Specialist to see the audit through to the final report and recommendations, to ensure you can get the most out of your IP and the opportunities it can give you.

Even if you do not qualify for the IP Audits Plus scheme, Two IP could still help identify and protect the IP in your business, if you chose to approach us directly.  Should you be seeking focussed advice upon a specific innovation or branding project, we would likewise be delighted to help. 

Please do visit our website at www.two-ip.com, or get in touch with us at hello@two-ip.com with any questions you might have about identifying protectable IP and how best to protect it in your ownership.

Why AI is changing our world

Our new patent attorney and Artificial Intelligence (AI) expert, Coreena Brinck, reviews the basics of AI and summarises the differences between generative AI and Artificial General Intelligence.

Over to you, Coreena….

As a patent attorney I’ve always enjoyed working with computer-implemented technology and AI systems are computer programs which I find particularly interesting. AI programs can allow insights into data to be found which might otherwise be missed completely and/or be found more quickly than if a different analytic approach is used instead.

I’ll keep the explanation from here on in as simple as possible to give a basic overview of AI technology as I’ll be writing more in-depth about the many forms and flavours of artificial intelligence as it permeates our lives in so many different ways in future blog articles.

AI – what is it good for?
AI is already being used for applications ranging from drug discovery and image diagnostics in the medical sector, and in control systems for everything from coffee makers to cooling systems, cars to entire factories, and transport networks to stock pickers. In 6G communication networks AI systems will be used in various contexts to maximise the utilisation of resources. AI language models, such as Chat-GPT and LLAMA, are increasingly being used in a range of applications. This type of AI model can be trained for things like screening job applicants to approving your mortgage application, as well as a whole host of text-based applications, including speeding up the process of writing patent applications! Pretty scary stuff. Which is why there is so much in the news about regulation, ethics and accountable AI.

So that is what AI can do – but what exactly is AI?
First of all, there are lots of different data analytics and/or decision-making computer programs which provide a form of AI but the term AI these days is used mostly to refer to a computer program comprising one or more neural networks, NNs. Data is input and then flows through the NN which comprises lots of nodes linked together. The nodes of AI NNs modify the data in a particular way, and the way they modify the data can also change with the data input.

To obtain useful output from most AI systems, the AI NN is trained by feeding into the AI NN examples of data which have known patterns or features. Eventually the nodes are modified sufficiently (in other words they “learn”) to process the data in such a way that the AI NN output becomes consistent whenever those patterns or features appear in the data input. How quickly and reliably the AI NN learns to do this depends on which AI NN model is used and also the quality and volume of training data used to train it.

So what is AGI?
Most existing AI systems are narrow AI systems dedicated to one task with a narrow focus of competence. They are set up to tackle a particular task and so are limited in what they can do, how they learn, and the pace they can learn, and do not adapt easily, or at all, if a task they are trained to do later changes.

Some AI models may be reconfigured to perform a different task, especially if they are retrained on new training data for that task, but quite often the only way to handle a completely different task is to build and train a completely new AI model. Developing, testing, and training a new AI model, however, all takes time and money.

Artificial General Intelligence, AGI, models could theoretically be built to tackle diverse tasks like ironing your clothes, ordering food, walking the dog, cutting your hair, driving a car, mowing the lawn. To do this, however, they need to process and learn a bit more about the way humans process and learn. We don’t need to swap out our driving brain and upload and train a new brain to mow the lawn, and then do the same when we want to walk the dog, for example.

This is why there so much excitement about Artificial General Intelligence – they are built slightly differently so they can be used for different types of tasks, as well as allow the tasks tackled by the AI system to change and even be reused for totally different applications. AGI though does not necessarily mean anything with human level sentience (never mind superhuman intelligence). AGI is not the same as Generative AI language models like ChatGPT or LLAMA 2 either – although these are very versatile when it comes to processing text for different applications but they would not be that great for example handling object recognition or allocating communications network spectrum.

This is the most basic and simple explanation I could think of for how AI and AGI differ. I’m sure there is an AI LLM system that could probably generate a more catchy description (possibly biased) but this is my own, human-generated, take. But in a nutshell: AGI models seek to be more adaptable than narrow, task-specific AI models can ever be. A key goal of AGI models is to be able to handle different tasks in different contexts and/or environments, ideally without needing retraining and/or specially curated training data sets. Developing such AGI models, which is hugely challenging, is ongoing and commercially viable systems are likely to emerge in the next few years.

Meanwhile, although AGI may be a game changer eventually, it does not mean that narrow focus AI models which are optimized for a particular type of task are no longer needed.

My recommendation is that it is always worth considering obtaining a patent if you are developing or using AI (or AGI) technology. If you do have any questions about whether you could patent your technology (regardless of whether it is an application which is using AI in a new and inventive way or a fundamentally new and inventive core-AI system) do reach out to me as I’d love to chat with you and find out if I can help you.

Meanwhile, I say “Vive la machine” – in the hope that some day in the not too distant future one will bring me a Martini before cooking my dinner.

Coreena will be taking part in the virtual FemTech Titans Panel on Aug 29th – FemTech Titans: The Women Leaders Trailblazing AI. Click here to book.

For another great introduction to the subject of AI, we have recently enjoyed listening to BBC Radio 4’s ‘Understand Tech and AI’ podcast and would thoroughly recommend – click here to listen.

If you would like to discuss protecting your AI with Coreena, you can get in touch here.