05 January 2023
From developments in the world of artificial intelligence (AI) and machine learning (ML), to the exploration of space, there have been numerous advancements and trends in the fields of science and technology that have garnered attention. IP has played a crucial role and has allowed innovators to reach new horizons with the help of IP protection. In this article, we have focused on some of the most exciting and influential trends that have dominated throughout 2022.
AI and ML have gone from strength to strength in the last couple of years – and the development of these technologies shows no sign of slowing down. Moving forward, it is clear – as it has been for a while – that AI will play a considerable role in our everyday lives. With these types of technology becoming progressively more commercialised, and with an increasing number of AI/ML patent applications making their way through the various patent offices, there is an escalating amount of consideration of the patentability of these technologies. For example, the UK Intellectual Property Office has recently released a guidance note on the protection of AI inventions. While this guidance note is far from perfect, it is an indication of the desire for patent offices to provide more concrete guidance for an uncertain area. As AI/ML patent applications become increasingly commercialised, we might expect to see a commensurate number of court decisions that provide further guidance for applicants.
The market for free-from products, which include non-dairy milk, low or no-alcohol beverages, and meat alternatives, has seen significant growth throughout 2022 due to a variety of factors. This includes health concerns, increasing awareness of food sensitivities, and concerns about the environmental impact of traditional meat and dairy products. This market is now predicted to be worth $1 trillion by 2026. Leading companies, like Unilever, are looking to significantly expand their offerings in this space in order to compete for some of this ballooning market share. As a result, there is expected to be intense competition among established free-from brands, new entrants, and traditional food and drink companies hoping to enter the market. However, as the cost of living rises, innovation relating to more cost effective methods of producing these products may come to the forefront.
Brands in this growing market are becoming more aware of the effectiveness of IP in safeguarding their market share. For example, on 9 March 2022, Impossible Foods Inc started infringement proceedings against Motif FoodWorks. Impossible Foods considers Motif’s sale of HEMAMITM – a bovine myoglobin composition which “tastes and smells like meat because it uses the same naturally occurring heme protein”, along with burgers produced containing the HEMAMITM molecule, to infringe the claims of their patent. In response, Motif FoodWorks has requested a review of the validity of Impossible Food’s patent. In addition to the legal risks, brands must also consider the potential impact on their reputation when pursuing litigation, as exemplified by Oatly’s unsuccessful suit against Glebe Farm Foods, which led to negative publicity and social media backlash. As the free-from market continues to expand, the potential for intellectual property disputes will also increase. While legal action may be necessary in some cases, the cost of litigation is a factor to be taken into consideration. Depending on the facts of the case, alternative methods for resolving disputes may be worth exploring.
Publicly traded cryptocurrencies have suffered huge losses in the past few months, and several prominent exchanges have collapsed, so at first glance blockchain might seem to be a doomed technology. However, blockchain continues to be an area of interest across many industries and a substantial number of patent applications are still being filed for this technology. While the days of rampant speculation and valuations built on hype alone seem likely to be at an end, there does still seem to be potential for blockchain technologies to make it to market.
While cryptocurrencies and blockchain are synonymous to much of the population, many blockchain innovations – and patent applications – are not directed towards cryptocurrencies, so even if the cryptocurrency markets do not recover there is no reason to think the recent troubles are a death knell for all blockchain technologies. And from an IP point of view, the increased scrutiny of blockchains might well increase the relevance of patent protection. With hype and good marketing no longer being sufficient to gain the attention of investors, evidence of innovation is likely to become an ever more important factor in bringing blockchains to market.
2022 has been another exciting year for personalised cell immunotherapies. These take immune cells and modify them so that they can kill cells in the body associated with a disease. To date, they have normally used the patient’s own cells, but this year saw important steps in the development of treatments based on donor cells. These have long been sought after, as they remove the need to tailor an individual’s own cells, and allow treatments to be made available faster, and potentially for a larger number of patients.
Two stories of particular interest occurred at the end of the year. Base editing was successfully used for the first time to create modified T-cells that provided a therapy for a patient with otherwise untreatable T-cell leukaemia. The complex approach was needed to allow the modified cells to kill cancerous T-cells, but not damage each other. The treatment proved a great success, and appeared to completely eradicate the cancer. In other exciting news, the European Commission issued the world’s first marketing authorisation for an ‘off the shelf’ T-cell immunotherapy based on modified cells obtained from healthy donors.
In 2022, we have seen the continued growth of clean tech, with particular developments in clean energy generation and technologies to adapt to the impact of climate change. One of the most notable technological developments has been the recent announcement that scientists at the National Ignition Facility have achieved nuclear fusion ignition, producing a hydrogen fusion reaction that released more energy than was required to initiate the reaction. This is a significant milestone towards building the first nuclear fusion power plant which – if achieved – could produce energy without releasing greenhouse gases and without generating the radioactive by-products associated with nuclear fission power.
Technological trends in clean tech are also likely to be influenced by the outcomes of the COP27 conference, especially the agreement regarding a ‘loss and damage’ fund for vulnerable countries. The fund will help developing nations adapt to climate change by financing innovation in areas such as sea defences or breeding crops that can better withstand drought. All these adaptations will require fast paced innovation to help keep up with the implications of climate change, leading to an increase in inventions and patent applications relating to climate adaptation technologies.
Following a series of setbacks and delays in previous years, 2022 was a year in which the long-awaited Unitary Patent (UP) and Unified Patent Court (UPC) finally began to pick up momentum.
The year began with Austria becoming the thirteenth country to formally ratify the Protocol on Provisional Application, a necessary move to allow the final stages of preparatory work for the UPC to commence. These included the official recruitment and appointment of judges and court staff, and the finalisation of the Court’s IT systems. Selection and appointment of judges took place, with the final list (barring two remaining vacancies) being made public in October. However, some questions remain as to how conflicts of interest will be managed given the fact that the judicial appointments include a number of practitioners working in-house or in private practice, who will be permitted to act as UPC judges on a part-time basis.
Another significant development took place when the Netherlands pulled out of the race to host the section of the UPC’s Central Division which had originally been destined for London. This leaves Italy – specifically, Milan – as the only publicly-declared candidate to host the “London” section, which will deal with life sciences and pharma cases, with Paris and Munich hosting the other sections of the Central Division. With five months to go before the UPC is expected to open its doors, might we expect an official announcement on the final arrangements for the Central Division in the in the next couple of months?
Amid all this progress, it was expected that Germany would complete its ratification of the UPC Agreement in December 2022, paving the way for an April launch date. However, problems with finalising the electronic case management system gave rise to a last-minute delay. It’s now expected that Germany will complete its ratification in February 2023, with the start of the ‘sunrise period’ (allowing early registration of opt-outs) scheduled for 1 March 2023 and the opening of the UPC on 1 June 2023.
Although predictions of launch dates have come and gone in the past, it really looks like 2023 will be the year of the UPC and the UP system. Now is the time to make decisions whether to leave existing patent portfolios within the UPC’s jurisdiction or to opt out, as well as whether to use the UPC for infringement/revocation actions, and to decide on whether to validate European patents as UPs once the possibility becomes available.
The future is always uncertain and there are many possibilities for what could happen in the world of science and technology. One question that remains is whether cryptocurrencies will regain popularity and whether plant-based diets will continue to be a trend. However, there is one development that is certain to bring significant change to the field of intellectual property: the implementation of the UPC. With the biggest change to European patent law in decades now just months away, the Mathys & Squire team will be there to provide advice at every step of the way.
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