A piece by Partner Nicholas Fox and Technical Assistants Daniel Johnston and Grace Heredge Thomas has been featured in The Law Society Gazette, giving an insight into the challenges that the Unified Patent Court (UPC) presents to English patent litigators.

An extended version of the press release is available below.

The UPC is a new court which has been established to provide a forum for hearing disputes over unitary patents which provide patent protection extending over 17 EU member states. In addition, the UPC has jurisdiction to enforce and revoke patents granted by the European patent office in force in those member states. Prior to the establishment of the UPC, enforcement of such patents could only take place on a country-by country basis and one of the main rationales for the new court was to remove duplication of enforcement proceedings.

In the first few months of its existence, filing figures at the UPC have been robust with over 100 already having been filed at the court. In contrast, the volume of patent litigation in the English courts has been falling in recent years, whereas 85 cases were filed with the English Patents Court in 2017, that number fell to only 35 last year with a similar number of cases expected to be filed this year.

This puts English patent solicitors in a quandary. The English Patents court was a forum of choice for settling high profile international patent disputes, with the highly competent patent judges and rigorous testing of expert evidence through cross-examination making the English courts a preferred venue for challenging the validity of granted patents. The initial signs of success for the UPC indicate that this position is likely to be challenged. The rules of procedure for the UPC were designed by cherry-picking the best aspects of English and European court litigation with a view to making the court as suitable as possible for hearing patent disputes. Through greater emphasis on documentary evidence and a more targeted approach to cross-examination, the costs of litigation in the UPC are expected to be significantly lower than in the English Patents Court. At the same time, the rules do provide for a much stronger role for the presentation and challenge of expert evidence than in the case in main continental court systems.

Further, one of the attractions of the UPC is that it is expected that a significant proportion of the litigation conducted in the new court will be in English. Actions to revoke a patent are required to be brought in the language in which a patent was prosecuted which in around 80% of cases is English. Litigants normally have a choice of languages to use when enforcing a patent in the UPC, but in almost all cases litigating in English will be an option and in a recent case brought in the Dutch division of the UPC, the court acceded to a defendant’s request to change the language of proceedings from Dutch to English on the grounds that would be of assistance to a defendant based in Spain.

Unfortunately, most English patent solicitors will be locked out from this new court system. The UPC only permits lawyers qualified in the EU to litigate before the court and requires such lawyers to hold EU nationality. Following Brexit and the UK’s departure from the EU, only a handful of English lawyers have the right to litigate in the new court, typically through a fortuitous combination of ancestry and cross-qualification as lawyers in Ireland.

The situation of English solicitors is in marked contrast to that of UK patent attorneys. Virtually all UK patent attorneys are qualified to act before the European Patent Office – a patent granting organization based in Munich and the Hague which as it was established under a treaty which was separate from the founding treaties of the European Union has been unaffected by Brexit. Over 970 UK patent attorneys, representing about a third of patent attorneys based in the UK have registered to act before the UPC on the basis rights to conduct litigation acquired pre-Brexit. Unlike lawyers appearing before the court, there are no restrictions that attorneys must have EU nationality.

In the face of dwindling numbers of patent disputes being heard in the English Patents Court, this cadre of patent attorneys presents English patent solicitors with an opportunity. Historically, patent attorneys have only had a supporting role in English patent litigation with almost all English based litigation being overseen by solicitors specialising in patent law. Patent attorneys have, however, long represented clients in opposition proceedings before the European patent office which enable third parties to challenge the grant of patents. Such opposition proceedings are heavily influenced by civil law approaches to litigation in Europe and share many similarities with revocation proceeding before the UPC. The challenge facing English patent litigators will be how to leverage this cadre of patent attorneys qualified to litigate in the UPC in order to capture a share of UPC litigation market.

The United Nations’ 28th Framework Convention on Climate Change (UNFCCC) Conference of the Parties (COP28) will run from 30 November – 12 December 2023 at Expo City, Dubai, United Arab Emirates (UAE). The conference brings together politicians, activists, citizens, and business representatives from over 190 countries to set the course for the future of the green economy.

According to the United Nations (UN), “climate change is the defining crisis of our time and it is happening even more quickly than we feared.” Therefore, it is no surprise that COP28 is set to be one of the largest and most important international gatherings of 2023, with over 70,000 delegates expected to attend, including heads of state and leaders from 197 countries around the world.

Since the inception of the Paris Agreement at COP21 in 2015, UN member countries have been committed to keeping average global temperature rises around 1.5°C compared to pre-industrial levels and strengthening the world’s ability to adapt to the effects of climate change.

COP28 will present an opportunity to achieve further progress towards the goals of the Paris Agreement. The COP28 agenda will also be focused on four additional ‘paradigm shifts.’

1) Fast tracking the energy transition and slashing emissions before 2030

COP28 aims to significantly reduces emissions and builds on the progress made during previous summits. In particular, COP28 aims to accelerate mitigation efforts to develop decarbonisation strategies aligned with the Paris Agreement, implement carbon market and non-market approaches to attract investments, ensuring a faster transition towards a fossil-free energy system.

The COP28 Presidency, in partnership with global state and industry collaborators, is advancing a comprehensive energy plan in alignment with scientific recommendations. This plan includes a focus on tripling renewable energy capacity, reducing oil and gas emissions, transitioning high-emission sectors to low-carbon technologies, promoting fossil-free transportation, and accelerating the phaseout of unabated coal power, while encouraging action, transparency, and accountability from companies and countries in line with global standards.

2) Deliver old promises and set the framework for a new deal on finance

According to the COP28 Presidency, finance is essential for climate action, especially in developing countries, but the current financial system is inadequate to achieve the Paris Agreement goals, as those will require over $2.4 trillion annually by 2030. COP28 will urge the leaders of the developed countries to fund the Green Climate Fund, double adaptation finance by 2025, and scaleup adaptation efforts.

COP28 will aim to establish a new financial architecture, promoting dialogue on finance principles and reforming international financial institutions. This approach also seeks innovative solutions to mobilise private capital through regulatory reforms and voluntary carbon markets, accelerating climate progress in developing nations.

3) Put nature, people, lives, and livelihoods at the heart of climate action

COP28 will focus on addressing the impacts of climate change by prioritising adaptation, enhancing adaptation finance and ensuring support for those facing severe climate impacts. The conference emphasises a Global Goal on Adaptation (GGA) framework, which aims to promote efforts on nature, food, health, water, and relief, and champions conservation and adaptation, highlighting the roles of women and indigenous peoples, while addressing climate-related humanitarian and security challenges through initiatives like Early Warnings for All and the Risk-informed Early Action Partnership.

4) Mobilise for the most inclusive COP

COP28 will prioritise inclusivity, collaborating with diverse groups for active participation, emphasising gender balance, and promoting indigenous peoples’ access to finance. The Youth Climate Champion, Minister Shamma Al Mazrui, strengthens youth engagement through initiatives like the International Youth Delegates program, calling for continued support. The COP28 program embraces innovation and inclusivity, addressing various topics, and urges commitment to multilevel partnerships.

COP28 will set the course for the future of the green economy, and the four paradigm shifts will serve as a blueprint for the immediate action that might expect from the leaders attending the conference. We also expect governments to continue to implement local policies to support innovation in cleantech. All solutions and innovative concepts helping to fulfil the green agenda and mitigate climate change should be protected, and the best way to do so is with help of intellectual property rights.

At Mathys & Squire, we work with many cleantech clients on green technology breakthroughs and sustainable solutions. We are pleased to partner with companies and inventors who are addressing climate change and whose initiatives further the objectives set forth by COP28.

We eagerly await the results of the COP28 summit to see how they will influence the future of the green economy.

Data and commentary provided by Mathys & Squire has featured in an article by The Trademark Lawyer and Solicitors Journal, giving an insight into the issues that companies face amidst the recent surge in AI legal cases.

An extended version of the press release is available below.

The surge in new artificial intelligence (AI) legal cases to decide if infringements arise when copyrighted data is used to train AI systems, suggests that intellectual property law will struggle to keep pace with the speed of AI developments, says leading intellectual property law firm, Mathys & Squire.

Companies are increasingly concerned about both the risks of intellectual property infringements and confidentiality issues when using AI. Companies are even urging their advisors, such as law firms and professional services firms, not to input any of their information into AI systems such as large language models (LLMs) amid fears of data leaks.

Lack of clarity on AI related copyright breaches

Mathys & Squire says that, as with the growth of the internet, AI is going to see both the courts and legislation struggle to provide businesses clear direction on rapidly developing law relating to AI.

Clear infringements occur if generative AI systems are directly reproducing copyrighted information. However, it is unclear whether copyright infringements arise when the AI system producing them has been trained on this copyrighted information.

AI LLMs are fed massive amounts of data so that the model can automatically return results, which could be copyrighted material. This is creating confusion for owners of copyrighted material who want to protect their intellectual property rights.

Andrew White, Partner at Mathys & Squire says, “AI is creating a multitude of new challenges and questions in relation to intellectual property. Many legal cases are ongoing as individuals seek clarification on what their rights and responsibilities are. Companies with copyrighted material and AI companies themselves are in urgent need of clarification.”

Recent legal cases regarding AI copyright disputes include:

Some tech firms themselves have already taken action to provide clarity on the issue. Microsoft said it will take legal responsibility if customers get sued for copyright breaches while using its AI Copilot platform. Google has also reassured users of its AI tools on Cloud and Workspace platforms that it will defend them from copyright claims.

Companies fearful of AI data leaks

AI also presents serious potential confidentiality risks to companies. As data is stored in the cloud, data leaks can occur even if companies use their own private AI systems to safeguard against information being shared outside of their organisation.   

Italy had previously banned ChatGPT over data protection concerns in April 2023 before reversing its ban later that month. Apple has restricted its employees from using AI tools over fears that confidential data could be leaked to outside sources.

Adds Andrew White, “It is important to have safeguards in place to ensure that confidential information is not input into these AI systems. Given the enormous risks, companies have made formal requests to their professional advisors like law firms and management consultants not to enter any of their information into AI systems.”

High-profile examples show that the entering confidential information into AI can have serious consequences. These include: