Posts Tagged: "European Union"

On March 4, the European Commission announced that it had levied a fine of more than €1.8 billion ($1.95 billion USD) against American consumer tech giant Apple over app restrictions employed by Apple’s App Store. The massive fine, which the Commission increased to ensure it was sufficiently deterrent to Apple’s anti-competitive practices, is the latest in a series of legal actions within the European Union (EU) to target dominant Internet platforms under competition law.

The most significant development in IP in Europe in 2023—indeed arguably the most significant in nearly 30 years—was the launch of the Unitary Patent and Unified Patent Court on June 1. The full implications of this are explored here. Beyond the UP and UPC, however, there were a number of. important developments in Europe affecting all the main IP rights.

Previously, we wrote about how alleged concerns of “hold-up” and a lack of “transparency”, two non-legal terms without accepted definitions, are being used to advocate for special rules applicable to patents subject to declarations regarding Fair, Reasonable and Non-Discriminatory (FRAND) licensing. These vague concepts are specifically chosen to obfuscate the real issues impacting FRAND licensing and used in an effort to shift traditional burdens of proof, regulate behavior previously found not to violate antitrust / competition law, and rewrite the express language of the commitment made by patent owners to the European Telecommunications Standards Institute (ETSI). The European Commission (EC) is the latest bull to enter the FRAND licensing China shop.

The Unified Patent Court (UPC) is only a fortnight away; it will go live on June 1, 2023. No doubt, the UPC will become a game changer requiring diligent planning and preparation. In order to faciliate such preparation, we have been providing a series of articles that will deal with the most important aspects of the UPC. Whereas Part 1 focused on the designated UPC judges, Part 2 on the timelines and Part 3 on the remedies that are available at the UPC, this Part 4 will address the financial aspects of UPC infringement proceedings.

On April 27, a pair of legal measures were advanced within the European Union that promise to greatly impact the state of technological commercialization within Europe for both standardized and artificial intelligence (AI) technologies. While political leaders in the EU maintain that either proposal addresses consumer safety and competition concerns, multiple commentators have pointed out issues that could slow the rate of technological commercialization to the detriment of Europeans across the continent.

The United States Trade Representative (USTR) released its annual Special 301 Report on April 26, adding two countries to the “Watch List”: Bulgaria and Belarus. In total, there are now 29 countries on either the Priority Watch List or Watch List, up from 27 last year. Belarus was added because it passed a law that “legalized unlicensed use of certain copyrighted works if the right holder is from a foreign state ‘committing unfriendly actions.’” This includes the U.S. sanctions imposed on Belarus for its support of Russia’s invasion of Ukraine. “

In late March, news broke that the European Commission was drafting sweeping regulations on the licensing of standard essential patents (SEPs). Commentators predict the draft will be released in late April and, although this is an early draft that will likely evolve, below we offer the following initial observations. In its current form, the new regulatory framework would encourage increased transparency in SEP licensing through several new policies and procedures. In particular, the regulations would establish a “competence center” at the European Union Intellectual Property Office (EUIPO) to act as a sort of clearinghouse for SEP issues (both technical and economic). The EUIPO does not currently have patent expertise; EP patents are the purview of the European Patent Office (EPO), which is separate from the European Union and includes non-EU members.

The European Union Unified Patent Court (UPC) announced this week that the court’s Sunrise Period will be delayed by two months. The Sunrise Period has a new planned opening date of March 1, 2023, with the entry into force of the UPC Agreement (UPCA) pushed to June 1, 2023. In an official announcement, Klaus Grabinski, President of the UPC Court of Appeal, and Johannes Karcher, Acting Chairman of the Administrative Committee, said, “the additional time is intended to allow future users to prepare themselves for the strong authentication which will be required to access the Case Management System (CMS) and to sign documents.”

The International Trademark Association (INTA) on Friday filed an amicus brief with the European Union Intellectual Property Office’s (EUIPO’s) Grand Board of Appeal, arguing that “the terms ‘public policy’ and ‘principles of morality’ are inherently vague and therefore carry with them a risk of an inconsistent application and a danger of each examiner being tempted to follow personal preferences rather than clear legal guidance” with respect to a trademark on the term “COVIDIOT” not being “fully in line with public standards.” The case is Matthias Zirnsack vs. EUIPO, Case R-260/2021-G.

High-stakes artificial intelligence (AI) is becoming even higher risk in the European Union, where AI regulation efforts are underway that could cost your company up to 6% of its total worldwide revenues—more than the potential penalties for privacy violations under the EU’s General Data Protection Regulation (GDPR). On April 21, 2021, the European Commission proposed rules for regulating AI (the “AI Act” or “Act”), to which the European Parliament recently released proposed amendments on April 20, 2022. The Act may undergo a series of additional amendments, but a final text is nearing completion and European countries are starting to act in anticipation of the regulation. Companies should plan for the comprehensive act to become law and begin implementing best practices now to ensure a competitive advantage. Below is an overview of the AI Act’s key provisions that takes into account the Parliament’s recent changes.

A new study on trade in counterfeit goods that pose health, safety and environmental threats has found that China and Hong Kong account for some three-quarters of exports of dangerous counterfeits. It also found that online sales represent 60% of seizures of dangerous products destined for the EU. The 90-page study was published on March 17 and jointly conducted by the Organisation for Economic Co-operation and Development (OECD) and the European Union Intellectual Property Office (EUIPO). It is based on customs seizure data and other enforcement data from 2017 to 2019, as well as interviews with enforcement experts.

The International Trademark Association (INTA) has made an amicus submission before the EU Court of Justice (CJEU) in a case concerning parallel imports and EU trademark law. (Case C-175/21 Harman International Industries, Inc. v. AB SA.) In the case at hand, Harman, which makes audiovisual equipment, brought trademark infringement proceedings in Poland against AB, a distributor. AB had put on the market goods featuring Harman’s trademarks, which it had obtained from a third party. Europe operates a system of regional exhaustion, as set out in Article 15(1) of the EUTM Regulation, and in parallel imports cases national courts have referred to “goods which have not been put on the market within the European Economic Area (EEA) by the right holder or with his consent.” (Gender-neutral language has not yet become established in EU jurisprudence). In this case, Harman argued that the goods had been imported into Poland and had not been put on the market within the EEA by Harman or with its consent. AB claimed it had received assurances when it bought the goods that the trademark rights were exhausted.

A decade-long legal battle over the fragrant, long-grain Basmati rice is heating up between neighboring countries, India and Pakistan. Both countries are attempting to claim exclusive ownership over Basmati in the lucrative European market, and the battle is now coming to a boil. Geographical Indications (GIs) establish intellectual property rights (IPRs) for products that originate from specific regions and attribute qualities, reputation or other characteristics linked to the geographic area. GIs are covered under the Paris Convention for the Protection of Industrial Property, and is also governed by the World Trade Organization’s (WTO’s) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

On June 4, the European Commission submitted to the World Trade Organization (WTO) its proposal for improving access to COVID-19 vaccines and treatments in countries suffering from vaccine shortages. The plan was submitted as an alternative to other proposals that would eliminate international patent rights for COVID-19 vaccines and treatments under the premise that such action would improve vaccine access in poorer countries. While the EU alternative contemplates the possible use of compulsory licensing, it addresses supply chain issues that will help to inoculate the entire globe against COVID-19 much more quickly than any patent waiver could ever hope to accomplish.