T 2314/16 helps to clarify the European Patent Office (EPO)’s approach to business methods. The Technical Board of Appeal 3.5.01 made a favourable decision on patentability of an invention relating to influencer reward distribution for an online marketing scheme. This decision is likely to be helpful for applicants innovating in commercial, financial and service industries, which are often difficult to protect at the EPO.
Subject matter solely relating to methods of doing business or to present information has long been excluded from patentability under European patent law (Art. 52(2)(c) EPC). For example, European patents cannot be obtained for methods of accounting, advertising, or task scheduling as such.
However, for business methods which involve a mixture of non-technical business features and some technical features, patents may be obtained if the technical features (or their interaction with the business features) produce a technical effect and are inventive over the prior art. For example, features such as using a smartphone connected to a server to gather financial data, as well as storing and processing the data to make a decision (such as how much to charge a customer) may be considered technical and therefore, escape the exclusion of Art. 52(2)(c) EPC, despite being business-related.
Nonetheless, the EPO has historically taken a strict approach when determining which features of these mixed type inventions provide a technical effect. For instance, in T 1147/05, Board 3.5.01 rejected arguments that collecting and processing real world data for providing environmental impact information achieved a technical effect.
In the absence of a statutory positive definition of the term ‘technical’ against which to measure features of an invention, as part of their assessment of the inventive step, the EPO considers whether the features lie within the competence of a notional technically skilled person or of a notional businessperson. Those features lying within the competence of a technically skilled person are considered to contribute to the technical character of an invention, and only those features may be considered for inventive step. It follows that if all features are within the remit of the businessperson, there is no ‘invention’ in the legal sense.
However, in reality, the expertise of technically skilled people and businesspeople often overlap, so artificially separating the two for the sake of this legal test can produce grey areas when determining the patentability of subject matter.
Board 3.5.01 attempted to clarify matters in T 1463/11 and T 144/11 by indicating that inventions which simply solve the problem of implementing a business requirement are rarely patentable, again upholding a relatively strict interpretation of the law.
In June 2016, Rakuten Inc. filed an appeal against a decision from the Examining Division to refuse their patent application for lack of an inventive step.
The application related to distribution of rewards to users of an affiliate marketing scheme, such as social media influencers who endorse products or services. In this scheme, each influencer is allocated an area of an advertisement banner displayed on a website. When a website visitor clicks on the banner, the influencer whose area is clicked on receives a reward. Over time, rewards are collected and then distributed according to the area sizes: an influencer with a larger share of the banner will typically be clicked on more often and therefore receive greater reward. The relative sizes of the areas can be adjusted to match the amount each influencer contributes to the advertising; if one influencer attracts many clicks, their area of the banner may be increased.
The claims refused by the Examining Division essentially specified a web server that provides a web page with the advertisement banner, acquires coordinates of clicked locations on the banner, matches those clicked locations to influencers, and stores associated reward information. The Examining Division found a lack of inventiveness on the basis that the invention’s distinguishing features, when compared to known HTML server-side image maps (which allow web browsers to send click coordinates to web servers), “did not go beyond a mere automation of the business-related aspects”. However, the Examining Division provided no reasoning as to why certain features were deemed non-technical.
In their decision of December 2020, Board 3.5.01 deemed the technical problem solved by the invention to be the implementation of a business method, namely reward distribution. Importantly, they also clarified which features were part of the business requirements and which were part of the technical implementation of those requirements.
In this regard, the Board held that the “specification of the business method ended with how to determine the reward distribution ratio”, and that devising an approach that involved dividing an advertisement display area into sections and allocating each area to an influencer required an understanding of “how a website is built, and in particular how an image map works”. Thus, these features were considered to be within the competence of the technically skilled person, and therefore were part of the technical solution and should be evaluated for obviousness.
The Board went on to state that, when tasked with implementing reward distribution to a number of users and starting from known HTML server-side image maps, the allocation of users to partial image areas would not be obvious to the technically skilled person. Consequently, Rakuten’s application was granted.
Essentially, this decision builds on previous case law by confirming that the remit of the notional businessperson may end with the statement of the business requirements. The features that arise after this in the process of devising the invention may be attributable to a technically skilled person, and thus may be capable of conferring an inventive step.
However, this decision is key: it clearly defines the boundary between the domains of the technically skilled person and the businessperson, and it does so generously to maximise the range of subject matter that may be considered technical. The decision shows that the EPO is willing to grant inventions for business-related methods, as long as the technical solution is non-obvious.
This case demonstrates a more lenient attitude to business-related inventions, which will be welcome news for applicants seeking to protect such concepts. Whether this signifies a shift in the general position of the EPO on business methods remains to be seen, but T 2314/16 looks set to become important case law at least for implementations of business requirements. The decision has been included in the latest update to the Case Law of the Boards of Appeal, so a general awareness of its findings can be expected at appeal and perhaps even at other divisions across the EPO.
Further to the announcement of the National Artificial Intelligence (AI) Strategy in September 2021, the UK Government has now launched a pilot initiative, known as the AI Standards Hub, intended to increase UK contribution to the development of global AI technical standards. The new Hub is currently being trialled by The Alan Turing Institute, supported by the British Standards Institution (BSI) and National Physical Laboratory (NPL).
The Hub aims to:
The announcement comes as new research by the Department for Digital, Culture, Media & Sport and the Office for Artificial Intelligence projects that more than 1.3 million UK businesses will use AI by 2040, and spending on AI by UK businesses is expected to reach more than £200 billion by the same date, up from £63 billion in 2020.
The Government has also already launched a consultation on intellectual property (IP) and AI as part of the National AI strategy. The consultation period has now closed, and we await the publication of a formal response from the Government in due course.
You can read the full UK Government announcement about the AI Standards Hub here.
The UK Government, via the Medicines and Healthcare products Regulatory Agency (MHRA), recently announced a call for views on new proposals to improve and strengthen UK clinical trial legislation.
In brief, the consultation is designed to seek opinions on proposals to update clinical trial legislation with a view to increasing patient and public involvement, improving diversity of trial participants, streamlining approvals and enhancing transparency.
The responses will help the UK Government assess whether changes to the legislation can help make the UK a hotspot for the research and development of new healthcare products, with the aim of promoting innovation whilst protecting patients and trial participants.
The Medicines and Medical Devices Act 2021 provides the powers to update the legislation for clinical trials. Since the UK left the European Union in 2020, the Government is seeking to position the UK as a go-to sovereign regulatory environment for clinical trials. The Government also intends to support the development of innovative medicines and ensure that the UK retains and grows its reputation as world leading life sciences base, generating opportunities for skilled jobs.
This consultation supports a wider programme of work in relation to developing and optimising the UK’s clinical research environment as part of the UK Government’s Saving and Improving Lives: The Future of UK Clinical Research Delivery and its implementation initiative, as well as its Life Sciences Vision.
The call for views focuses on a number of specific areas:
The call for views will run until 11pm on 14 March 2022 – respondents must submit a completed response form (available online). The form sets out a number of questions further breaking down the key areas described above.
After the deadline, the UK Government will consider the responses and we can expect the publication of a formal report summary in due course. The call for views states that the information obtained will inform the Government’s decision on any potential changes to the clinical trials legislation and to support the clinical research ecosystem.
We are pleased to see the attention the UK Government is dedicating to promoting innovation and creativity within the UK using IP frameworks. If any clients or contacts have views on any of the questions the consultation seeks answers on, we would be happy to hear their thoughts.
In this article for The Patent Lawyer Magazine, Partner Andreas Wietzke discusses Blackberry’s announcement on selling its non-core patent portfolio to Catapult IP Innovations Inc. and discusses the implications of this decision.
Earlier this month, software company Blackberry announced it was selling its non-core (those relating to mobile devices and wireless networking) patent portfolio to Catapult IP Innovations Inc. for $600 million. While the patents included in the portfolio don’t relate to Blackberry’s current core business, they operate in the mobile communications sector, which is likely the most litigation-intensive technology area in the patent system in the last few years. It can therefore be assumed that there will be a corresponding increase in exploitation through licensing efforts and related patent infringement proceedings.
As in previous years, extensive patent pools of mobile phone companies in particular offer investment opportunities for large fund companies. This allows companies to generate returns from their research & development (R&D) investments even after the products in question are no longer available on the market or a product area is completely abandoned, as in the case for Blackberry. However, this form of exploitation is not without controversy.
Potential users of patents sold and exploited in this way are particularly critical of the fact that they now see themselves exposed to a change in risk and a potential increased likelihood of legal action. While in a patent dispute between competitors there are usually extensive negotiation options due to mutual dependencies, pure patent investors have an exclusive interest in the economic exploitation of the acquired property rights through licensing income. Although this may significantly reduce the negotiation options in an infringement dispute, it does not fundamentally contradict the core idea of the patent system. Rather, an IP right exploited in this way is also based on an R&D investment originally made by a company and a developed technological innovation. As a result of its innovative strength, at least part of the exploitation success also flows back to this company in the form of the sales price of its patents.
While this development could be viewed critically by potential users of the protected technology, such investments can also be seen as a further strengthening of the patent system. From the point of view of a selling company, investments in development and innovation can contribute economically even if market success is not achievable in other areas, such as manufacturing effort, market share, marketing effort, etc. In other words, by adopting a proactive protection strategy at an early stage of development work, a company can create economic security for its investments. In fact, one of the original purposes of the patent system was to provide such protection for research investments. For this economic protection, it is now possible to make use of the ‘exploitation service’ of the investment companies, so to speak, without having to take legal action of one’s own.
The general concept of patent protection is based on an exchange between the state and the company. In return for publishing a technical solution as part of the patent application, the company receives a time-limited monopoly for commercial exploitation. Access to this monopoly is limited by the grant requirements, and automatic publication serves to accelerate technical development by spurring other companies to develop better solutions. The use of sold patents by patent exploiters does not change this core concept. Rather, it similarly encourages all market participants to actively invest in innovation themselves, thereby advancing the technology.
It can even be argued that the possibility of selling a patent to an investor means that other companies must in principle take its protective effect more seriously than before, since soft factors – such as mutual dependencies or a strong imbalance in the economic power of the two parties – no longer play a role as a result of the possibility of sale. With this view, the development of the exploitation opportunity through asset deals (such as the recent Blackberry example) can also be considered a positive addition to the patent system, as it secures the investments of companies to a further extent.
Following the preceding argument, the fact that company patents are considered as independent assets actually strengthens the value of the patent system and the individual property rights. This applies in particular to small and medium-sized enterprises, which have so far been exposed to a vast imbalance of power as patent owners against large corporations in patent disputes. If the current high volume patent sales, which receive much media attention, are still in the majority, this concept also seems to be transferable to smaller scopes without causing significant issues. Purchases of small patent bundles, individual patents or even the pure investment in an infringement dispute, are also conceivable.
One could therefore summarise that for innovation-driven companies, particularly startups and scaleups, the current development can be viewed positively. However, to the same extent, especially in large companies, an adjustment of the risk assessment for potential infringements of third-party intellectual property rights may be necessary, which includes the possibility of exploitation by sale. The trend towards more active use of the patent system, however, does not seem to contradict the basic idea of increasing the strength of innovation and the speed of its development.
In the interest of balance, a potential problem area from a business and a societal perspective, remains fairness in negotiating the cost of the licence. The much-discussed relationship between user risk (automatic injunction) and patent holder risk (defeat in infringement proceedings/loss of property right) has in fact already led to an adjustment of the law in Germany. I for one am excited to see how patent owners, patent users, the courts and the legislature will respond to future IP asset deals.
The big-bang date for implementation of the new WIPO sequence listing standard ST.26 is fast approaching. All new PCT and national/regional applications filed on or after 1 July 2022 will need to be ST.26-compliant. Ahead of the upcoming changes, we summarise the key considerations and things to watch out for.
In the life sciences and biotechnology fields, many patent offices require a formal sequence listing to be filed with any patent application disclosing nucleic acid or amino acid sequences. The sequence listing includes all the disclosed sequences in a standardised electronic format that allows for easier processing and analysis by patent offices around the world.
The current standard format for these sequence listings – ST.25 – was established by the World Intellectual Property Organization (WIPO) in 1998, but will no longer be accepted for PCT and national/regional applications with a filing date on or after 1 July 2022. From then, all new filings must comply with the new WIPO standard ST.26.
As there will be no transition period, it is important to be aware of the changes from ST.25 to ST.26 well in advance of 1 July 2022.
One of the major changes in ST.26 is that sequence listings must be in electronic XML format, rather than TXT format. The XML format is designed to improve data compatibility with public searchable databases (including NCBI GenBank and EMBL-EBI) and should therefore make analysis of the sequences by patent offices simpler. As a result of this change, many features must be represented differently under ST.26, compared with ST.25, including:
To reflect modern developments in biotechnology, it will now be mandatory to include and annotate:
In addition, sequence listings must no longer include:
Full details of the ST.26 standard can be found here.
First and foremost, for any upcoming filings expected to contain nucleic acid or amino acid sequences, it is important to be clear on whether the sequence listing will need to comply with the ST.25 or ST.26 standard.
If a PCT application filed before 1 July 2022 enters the EP or GB phase after that date, ST.25 will continue to apply to the EP or GB application. However, other new filings from 1 July 2022 must comply with ST.26, including new applications claiming priority from an application filed before 1 July 2022, and new European divisional applications.
In some cases, it will be necessary to convert an existing ST.25 sequence listing into the new ST.26 format for use in a new application. For example, the EPO has confirmed that for divisional applications filed from 1 July 2022, which derive from a parent application filed before 1 July 2022, conversion of the parent ST.25 sequence listing into an ST.26-compliant listing will be necessary, along with a declaration that the new sequence listing does not add subject matter beyond the parent application. In contrast, the UKIPO requires sequence listings accompanying new GB divisional applications to be supplied in the same format as the parent application.
Applicants should be aware that additional time may be required to prepare ST.26-compliant listings, or to convert an existing ST.25 listing into the ST.26 format, particularly those which contain sequences affected by the changes, such as:
Moreover, great care should be taken to avoid adding or deleting subject matter when transforming ST.25 sequence listings to ST.26-compliant listings for applications claiming an earlier priority date or European divisional applications. This could be a particular issue if the converted ST.26 sequence listing may be filed at the European Patent Office (EPO), in view of the strict approach taken by the EPO on both added subject matter and priority entitlement.
WIPO suggests that the potential impact of ST.25 to ST.26 conversion should be taken into account when drafting an original (ST.25) sequence listing and application. Of course, in most cases where conversion of an ST.25 sequence listing to ST.26 will be needed, it is too late for that because the ST.25 listing has already been filed. However, if applicants are planning to file a first application before 1 July 2022, they can take steps to avoid future added matter and priority issues in converting that sequence listing to ST.26. For example, features that will become mandatory under ST.26, but which are not covered by ST.25, can be included in the application body as a pre-emptive measure.
Finally, if a sequence listing is filed in the incorrect format, the applicant will probably be invited to file a new listing in the correct format. At least at the EPO, such late filing of the correct listing will incur an official fee. Additionally, only sequence listings filed in the correct format are exempt from official page fees at the EPO. Therefore, an ST.25 sequence listing which is filed as part of an application which is subject to the new ST.26 standard may incur significant official fees (due to the considerable length of most sequence listings). It is worth taking the time to ensure that the correct sequence listing format is used when the application is filed.
The above is not intended to provide legal advice: if you have any questions about how these changes may affect your applications, please get in touch.
As a result of the Covid-19 pandemic and spending increased time at home, many of us have taken a greater interest in what we eat, which has continued even beyond the banana bread craze of 2020. Consumers have become ever more scrupulous when considering what benefits and harms the food we eat can have, not only to ourselves, but also our planet. It is therefore unsurprising that the biggest food trends we see emerging in 2022 are focused around health benefits and reducing damage to our environment.
If coffee is not only your drink of choice, but also an essential to get you through the working day, you are not alone! In the UK, around 2.5 billion coffees in disposable cups are sold each year. However, only 0.25% of these cups are recycled. Such low levels of recycling are mainly due to the fact that most disposable cups cannot be disposed of in mixed or paper recycling bins. Specialist equipment is required to remove the thin plastic or wax layer present in many cups (providing a waterproof/temperature controlling barrier) before recycling is possible. This process is both costly and time-consuming, meaning that the vast majority of disposable cups end up in landfill sites.
Given the amount of disposable coffee cups used each year and the length of time each cup requires to decompose – for example coffee cups containing polyethylene can take around 30 years to fully decompose – a solution to this problem is urgently needed if we are to continue to enjoy our morning beverage (and for some of us, continue to function like a normal human being!). We anticipate developments in the structure and manufacturing of coffee cups, as well as their recycling, in 2022 as the problem only becomes more pressing.
Cleantech companies are seeking to tackle this problem by developing biodegradable plastics which degrade in a much shorter timeframe than traditionally used materials. One company looking to provide such a solution is London-based Polymateria Ltd, through the development of a ‘drop-in’ additive containing catalysts and co-catalysts which can be included during the plastic manufacturing process. Following a specified dormant period, the catalysts act to break down both the crystalline and amorphous regions of the plastic, such that the material will degrade to form a wax-like substance without any harmful microplastics being produced. Fungi and bacteria can then fully consume the wax-like material.
Ploymateria Ltd states that its long service life plastic degrades in six months to three years, whereas the short life service plastic will degrade in less than six months – a significant improvement on the materials currently being used.
As an alternative, rather than looking at ways of reducing the degradation time of materials for containers, some companies have focused on developing containers that produce zero waste following their use: enter the edible container. Many startup companies are developing edible packaging and containers from foodstuffs such as rice flour, wheat, potato starch and milk proteins.
London-based startup Notpla has created Ooho, a liquid encapsulated in a waterproof and edible film made from seaweed. Users can eat the film if they wish, or – if that doesn’t appeal – the film will simply biodegrade in four to six weeks.
Notpla’s patent application (WO 2018/172781) states that these edible membranes are formed from alginate, a water soluble biopolymer extracted from seaweed. In particular, alginate is blended with a thickening material, such as starch or cellulose, to form a paste. The paste can then be extruded to form a membrane and a calcium rich ion solution is then added to produce a cross-linked matrix suitable for storing liquids. Of course, multiple layers of the edible membrane can be produced, allowing the consumer to simply remove the outermost layer before consumption, thereby overcoming the need for additional storage containers for hygiene reasons.
Whilst this invention represents an exciting step forward, for such containers to become fully integrated into everyday life, it may be necessary to develop resealable containers which can store greater quantities of fluids.
One particular product which has been immediately integrated into our everyday life is the edible coffee cup. Many startup companies are developing such products, including Scottish startup Biobite, Bulgarian based Cupffee, Ukrainian company Lekorna and Moldova-based Wayris. These edible coffee cups typically comprise a wafer or biscuit based cup which has been developed to prevent the immediate absorption of the liquid they contain. Depending on the brand selected, the edible cups reportedly stay crispy for between 20 and 60 minutes and can remain leakproof for up to 12 hours.
It has been estimated by a transparency market research company that the demand for edible packaging could increase on average by 6.9% yearly until 2024, at which time the edible packaging market would be worth almost $2 billion worldwide. On this basis, and the fact it is always nice to have an extra snack, we are expecting to see many more edible containers emerging over the next year.
Over the last few years, there has been a sustained increase in the number of people turning to vegetarian and vegan diets, or simply reducing the amount of animal-based products they consume. The main drivers for these lifestyle changes include health, environmental and economic reasons. Food and drink manufactures have responded to the increased demand by developing a range of exciting plant-based products. Amongst these are the plant-based alternatives to milk, including rice, oat, almond, soya and pea. However, there have been some reports suggesting that these plant-based alternatives may still be damaging to the environment. For example, almond production requires high water consumption which can lead to droughting effects, as well as carbon emissions resulting from the need to transport these drupes from the countries in which they are grown. Similarly, rice production requires large volumes of water and can be associated with the production of greenhouse gases due to the presence of methane-producing bacteria, which grows in the waterlogged soil of rice paddies. In addition, some of the dairy-free milk products produced are not suitable for those with allergies.
To address some of these issues, a new plant-based milk is expected to gain momentum in 2022: potato milk. Considered to be more environmentally friendly as it requires less land to grow the product, potato milk also produces less CO2 (thanks to the ability to grow these vegetables locally), and requires significantly less water than some other milk alternatives. Potato milk does not contain any added sugar, gluten, lactose or soya and can provide health benefits in the form of vitamin D, B12 and folic acid.
In February 2022, Waitrose is set to begin selling the potato milk brand ‘Dug’, owned by Swedish company Veg of Lund. According to a patent application of Veg of Lund (WO 2020/112009), the milk alterative is a potato emulsion comprising of (unsurprisingly) potatoes, sugar, a vegetable emulsifier, oil, vegetable protein and water. Whilst we always encourage the development of new food and drink products, only time will tell if this new product will take a significant share of a market which has been reported to be worth nearly £400 million a year in the UK alone.
The demand for CBD-based products has been growing in recent years as a result of a change in consumer perception (cannabidiol, a non-psychoactive compound found in the flower of the cannabis plant). This compound has now become associated with numerous health benefits including treating medical aliments, such as Alzheimer’s, epilepsy, pain, stress and anxiety. This shift in consumer perception of CBD-based products is due, at least in part, to the increasing amounts of medical research on the effects of CBD and the rising publicity of the health benefits associated with the compound.
In the UK alone, the CBD market is estimated as being worth £300 million and is expected to increase up to as much as £1 billion by 2025. As a result, companies in the food and drink industry have been quick to provide a variety of CBD-infused products in order to meet this new demand. The latest product to emerge from this trend is CBD-infused wine, which is expected to be popular with consumers this year. CBD wines typically have a lower alcohol content, meaning that consumers generally intake lower amounts of alcohol, providing further health benefits.
Although not strictly within the food and drink category, chewable toothpaste is set to be a big trend in the next year. As it turns out, recycling toothpaste tubes is actually quite tricky due to the fact that the tubes are often made out of different types of plastic and contain a metal liner to keep the toothpaste fresh. These waste containers are therefore often too complex to recycle at present. A further concern related to the currently manufactured toothpaste tubes is that they form microplastics during degradation, which can be damaging to the environment. Due to growing awareness of the pressures on landfill sites, consumers are now looking to alternative containers or products that will enable them to reduce the amount of plastic waste produced.
An emerging alternative to traditional toothpaste tubes are chewable toothpaste tablets. These solid tablets can be chewed into a paste before the user brushes their teeth with a damp toothbrush in a similar manner to that of traditional toothpaste. According to some reports, the global toothpaste tablet market could be worth US$152.3 million by 2026. The main selling point of these products is that they can be provided in glass or recyclable plastic bottles, and therefore are more environmentally friendly. Chewable toothpaste tablets typically comprise common ingredients found in toothpaste, such as xylitol, calcium carbonate, sodium bicarbonate, tartaric acid derivatives and fluoride.
The world’s attention remains, rightfully, focused on the goal of innovating its way to carbon neutrality – the pledges of the recent COP26 summit are just the most recent in decades of reforms. Accordingly, the past 20 years have seen dramatic changes in the patent landscape of clean technology.
Since 2017, there has been an average of 3.3% annual growth in low-carbon energy patents, rising faster than all other technology areas. Despite this, a 2020 IEA report concluded that the energy sector will only reach net-zero emissions if there is a significant and concerted global push to accelerate innovation. From a life sciences and chemistry perspective, some trends to keep an eye on in 2022 are: advancements in battery technology; sustained progress in hydrogen development; solar photovoltaic (PV) cells; and progress in recycling technology.
The compact but accessible chemical energy storage of fossil fuels is the property that has underpinned their dominance in the energy landscape over the past century. However, with the global shift towards renewables, providing effective ways of storing electrical energy is becoming increasingly important. As such, battery technology has been one of the frontrunners in patent activity growth during the past two decades. Between 2000-2018, the annual number of international patent families (IPFs) in all technologies increased by 213%, compared to a 704% rise in electricity storage related IPFs. Of this, 9/10 patents related to battery technologies.
Even with this remarkable growth in the sector, in recent years there have been additional efforts to encourage further development, the results of which we expect to start noticing in the next year or two. Notably, the BATT4EU partnership (between the European Commission and the BEPA) was announced in June 2021, aiming to boost European battery research and innovation with a budget of €925 million. The UK also continues to dedicate resources to this area – in March 2021, the government-backed Faraday Institution committed to a £22.6 million programme that aims to develop battery safety, including its reliability and sustainability, across a number of fields.
Li-ion batteries have emerged as the dominant system around which innovation is largely focused, accounting for 45% of patenting activity relating to battery cells in 2018. However, as their development matures (with an increasing proportion of IPFs being related to manufacturing or engineering), space is being created for emerging technologies. For instance, patenting activity in solid-state batteries, where solid electrolytes are used, has been increasing by an average of 25% annually since 2010 and we expect this trend to continue in 2022. The exploration of new electrode materials is also an area of steady growth, with plenty of potential for discoveries to supplant existing compositions – lithium cobalt oxide was the prevailing cathode material in 2005, which was then overtaken by lithium nickel cobalt manganese oxide by 2011, with lithium nickel cobalt aluminium now showing great promise. Clearly, there is still room for considerable progress in battery technology.
Following the most significant surge in global activity in hydrogen-related technologies in the early 2000s, where the number of IPFs grew from 517 in 2000 to over 2,000 by 2008, patenting activity has sustained an upward trend, albeit showing slower growth than, for example, battery technology.
A significant roadblock in the wider utilisation of hydrogen is the slower growth of the end market for its applications, when compared to other clean energy sources such as solar or wind. However, it’s becoming increasingly clear that wider incentivisation and adoption of hydrogen is needed, with many countries recently announcing national hydrogen strategies – for instance, the UK Hydrogen Strategy of August 2021 (including a £240m ‘Net Zero Hydrogen Fund’), Germany’s H2 Global programme (June 2021), and the wider framework of the EU’s Hydrogen Strategy (July 2020).
Consequently, it seems likely that the growing investment in the hydrogen sector will lead not only to the scaling-up of existing technologies, but the accelerated development of new and emerging ones; anion exchange membrane systems show great promise in improving the efficiency of traditional alkaline cells and overcoming the platinum requirements of proton exchange systems, while solid-oxide electrolyser cells with ceramic electrolytes can utilise steam at impressive conversion efficiencies. The increasing focus on hydrogen in cleantech is reflected in the awarding of the ‘Fix Our Climate’ Earthshot Prize to Enapter – leading developers of AEM electrolyser technology – in late 2021.
Global solar PV generation increased by 156 TWh (23%) in 2020 to reach 821 TWh, representing the second-highest absolute generation growth of all renewables. This is due in no small part to the relatively early market consolidation of inorganic photovoltaic cell technology, and the associated fall in prices over the following years.
Despite these advances, significant progress still needs to be made to hit the numerous national and global targets for renewable energy. For example, to reach the EU’s goal of achieving 40% renewables by 2030, it is estimated that solar capacity would need to increase from 137 GW (as of 2020) to around 660 GW. Fulfilling that requirement may involve, or even necessitate, further innovation in solar PV cell technology.
Such developments are potentially already in the pipeline: since 2010 there has been a steady rise in IPFs concerning organic PV cells, overtaking the number of other PV cell patents in 2015. Compared to the prevailing silicon-based inorganic PV cells, those that utilise light-absorbing organic small molecules/polymers have the potential to provide a much cheaper, more environmentally friendly and customisable alternative that could be produced on a massive scale. We expect to see more of this technology emerging in the coming year.
Waste has long been an inevitable consequence of the economic and manufacturing processes that have become fundamental to most elements of modern life. However, the benefits of recovering waste materials are becoming harder to ignore; in addition to reducing emissions from extensive mining operations, slowing the depletion of natural resources and limiting ecotoxicity, it can alleviate costly fluctuations in price and/or supply of key materials. As examples of this approach, alternative materials and recyclable plastics have been in the spotlight for a while and are still an important focus for development, but progress in other areas has often been slower.
For instance, the ever-increasing demand for Li-ion batteries, with the progress of electrification, has been in stark contrast to recycling activity once they reach end-of-life stages: in 2019, the recycling rate for Li-ion batteries in the US was less than 5%. Considering the estimation that the electric cars sold in 2019 alone would result in 500,000 tonnes of battery pack waste, it’s clear that considerable improvement is needed. There is therefore plenty of room for innovation in the coming years for scalable, efficient and clean battery recycling processes.
As mentioned earlier, plastics are another major focus of recycling technology. Quite often this means developing processes to enable effective separation and reuse of existing plastics, but the design of new polymers focused on inherent recyclability is an area of growing activity – IPFs in the field doubled between 2015 and 2019. Within this category are several promising avenues for further development, including vitrimers, which consist of a specific type of dynamic polymer network able to change its topology without fluctuations in overall connectivity.
More generally across areas related to recycling, patent filing activity has maintained its upward trend in recent years. With initiatives such as the EU’s Circular Economy Action Plan, adopted in March 2020, it seems likely that patenting activity in recycling technologies will continue to grow solidly in the years to come.
Personalised medicine has been a strong focus of pharmaceutical research and development (R&D) in recent years, and we expect this to continue in 2022 and beyond, with the global personalised medicine market forecasted to grow to $717 billion by 2025. Personalised medicine encompasses technologies enabling cancer prognosis, as well as specific treatments targeting certain cancers associated with specific gene mutation. It also facilitates preventative medicine, allowing the identification of patients with a genetic predisposition for a particular disease to enable pre-emptive treatment.
Personalised medicines cover a wide range of actives, from more traditional small molecules to advanced therapy medicinal products (ATMPs) such as stem cells and CAR-T cells. ATMPs are also a hot trend, with these products expected to increase markedly from the current level of around a third of pharmaceutical pipelines over the next decade. In view of the complexity of ATMPs compared with traditional pharmaceuticals, the IP landscape around ATMPs is also more complex, which may give rise to an increase in collaborations as companies work to get these products developed, approved and on the market. There is also the potential for an increased number of contentious proceedings, as companies struggle to find freedom to operate in a complex and crowded IP market.
The climate crisis and global food crisis are likely to drive the use of biotech to look for alternatives to conventional agricultural products and methods. Increased awareness of the problems caused by chemical pesticides is stimulating research into, and take up of, alternatives which reduce pesticide use and runoff, leading to an increased focus on biopesticides, with the global market projected to grow at a compound annual growth rate of 14.7% through to at least 2025. Whilst the public has historically been wary of genetically modified crops, genetically modified organisms have the potential to provide significant advances in sustainable agriculture, by improving crop yield and resilience, as well as through engineering crops with increased nutritional value or other desirable properties. As well as innovation to support a sustainable future, biotech can also be used to create crops that can actively remove existing pollutants through a process called phytoremediation. The growth in artificial meat was a significant trend in 2021, and the appetite (excuse the pun!) for such products shows no sign of slowing down.
Deep tech in general is seen as a massive growth opportunity (as covered in another of our IP trends articles), and it is estimated that deep tech investments will grow to about $140 billion by 2025. Specifically, in the context of biotech, artificial intelligence (AI) and synthetic biology are particular focuses. Synthetic biology is particularly exciting, as it has potential applications in multiple sectors, including cell engineering, biofabrication and drug discovery. The use of AI and machine learning based on large datasets can help accelerate early drug development, facilitating accurate prediction of drug-human interactions and reducing reliance on human trials at every development stage.
The COVID-19 pandemic has resulted in an unprecedented effort to accelerate drug discovery, testing and approval. Whereas in the past it would typically take up to 10 years for a new drug to be approved, the COVID-19 vaccines were developed and approved in under a year. These changes in approach will have knock-on benefits for drug development and approval far beyond COVID-19. Machine learning, AI and big data can further accelerate the drug development pathway. This technical acceleration will require commercial strategies to adapt. For example, funding for human trials may be required sooner if the early development and testing phases are completed more quickly, increasing pressure for smaller companies to find partners or investors to help bear the costs. There is also likely to be an effect on pipelines and on IP as nonviable projects may be identified and dropped sooner, leading to more focused R&D and a tighter IP estate.
After years in the making, it is expected that the new Unitary Patent system and associated Unified Patent Court (a pan-European form of protection and associated court) will come into force in late 2022. All innovators, regardless of their technical focus, will need to evaluate their patent strategies in light of the new system. Some European countries are not part of this system (including the UK, Spain and Switzerland), and so there are also factors to consider regarding the participating/non-participating countries. There are potential pros and cons to opting newly granted patents into this unitary system, which patentees will need to consider on a case-by-case basis to ensure the right decision is made for each of their patents.
The third article in our ‘IP trends for 2022’ series on innovation and technology focuses on cleantech innovations ranging from electric vehicles (EVs), renewable energy to net-negative emission developments.
During the COP26 summit held in October – November 2021, hundreds of governments, cities and businesses signed a declaration to work towards making all new vehicles release zero emissions by 2040 at the latest. In 2022, we can therefore expect to see a focus on innovation in battery technology, particularly energy storage solutions and fast charging inventions, to make EVs practical and affordable for all consumers. This technological shift is illustrated by the fact that global patent filings for EVs are currently rising, while those for petrol and diesel vehicles are falling rapidly, as we recently reported.
During the climate change conference, there was also a renewed emphasis on the goal of limiting global warming to 1.5 degrees Celsius. With power generation making up a significant proportion of total greenhouse gas emissions, we can expect to see further inventions and innovative developments in renewable energy technologies in 2022, particularly those that reduce the costs of renewable energy implementation to enable developing countries to phase out fossil fuels. For example, we expect to see improvements in the modularisation of onshore and offshore wind turbines, which is key to achieving cost effective wind power by simplifying servicing and upgrades, thus reducing lifecycle costs. We also expect to see developments in the manufacturing of polysilicon for solar photovoltaic cells in 2022, given that shortages of polysilicon in 2021 caused prices of new solar panels to rise for the first time in years.
As well as a spotlight on EV technologies and renewable energy developments, we also expect 2022 to bring innovations in net-negative emission technologies, such as BECCS (biomass energy with carbon capture and storage) – which involves recovering CO2 from the combustion products resulting from burning biomass – and DACCS (direct air carbon capture and storage) – which involves capturing CO2 directly from the air.
The second article in our ‘IP trends for 2022’ series on innovation and technology focuses on blockchain, its patentability and an increasing interest in non-fungible tokens.
Blockchain has been a growing area for a few years now – from both an IP perspective and a commercial perspective. With this, an increasing number of patent applications for blockchain related inventions have been filed around the world. Despite the large number of patent filings in this area, there is still a dearth of blockchain-specific case law and some lack of clarity over exactly what is patentable when it comes to blockchain technology, and to what degree.
As filings progress through the various international patent offices, it is inevitable that specific case law will appear and we might well see some important decisions in the next year. Indeed, as we reported recently, the Australian Patent Office has been one of the first to tackle this technology and has seemingly decided that blockchain is a patentable technology. Moreover, this amenability to blockchain, as we reported here, seems to be shared by a number of other patent offices, and therefore, similar decisions might reasonably be expected elsewhere. If such affirmatory decisions are issued by other offices, we might expect the number of blockchain filings to keep increasing over the coming years.
Patent applications of course go hand in hand with developments in technology and in commercial focus. In this regard, we expect that a particular area of interest in the coming year will be non-fungible tokens, which have moved into the spotlight in the past year.
