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In an appeal decision against the Receiving Section’s decision holding that an EP application was not to be treated as a divisional application, where the joint applicants were not identical to those of the parent EP application, the Board of Appeal confirmed that Rule 22(3) EPC is not applicable in case of universal succession.

Background

On the basis of an EP application filed by five joint applicants, a divisional application was filed in the name of four of the same five applicants (applicants 1, 3, 4 and 5) and a newly named applicant 2. A day after the divisional application was filed, the parent application was actively withdrawn. Due to the discrepancy in identity of applicant 2, the Receiving Section considered that the requirements of Rule 36(1) EPC were not met, and so decided that the application was not to be treated as a divisional application. Although the applicants filed proof by means of documents of merger showing that the original applicant 2 had merged into the newly named applicant before the filing date of the divisional application, the Receiving Section maintained that a divisional application could only be filed by the registered applicants of the parent application. Since the withdrawal of the parent application had already become effective, a transfer of rights of applicants of the parent application could no longer be registered. This decision of the Receiving Section was appealed by the applicants.

Reasons

In the reasons for the decision, the Board of Appeal acknowledged that the evidence on file showed that the newly named applicant is the universal successor of applicant 2. Regarding universal succession, they confirmed three prior Technical Board of Appeal decisions which held that universal succession is not a transfer of rights, such that universal succession can be considered as an exception to Rule 22(3) EPC (see T 15/01, T 6/05 and T 2357/12).

For a systematic assessment on the requirement of identity of applicants for divisional applications, the Board of Appeal established the meaning of “transfer” in the context of Rule 22 EPC as follows (point 4.4 of the reasons):

“Under Article 71 [EPC] a patent application is an object whose property can be transferred, or over which rights can be constituted and transferred. … Therefore, the transfer of a European patent application has the effect of making a patent application the property of another person.

The only provision relating to the conditions under which the transfer of a patent application may take place is Article 72 EPC, which states that “[a]n assignment of a European patent application shall be made in writing and shall require the signature of the parties to the contract”. Although Article 72 EPC governs formal requirements, the only reference made in the EPC to the transfer of a patent application is in the form of an assignment contract.” … Moreover, Rule 143(1)(w) EPC states that the European Patent Register must contain entries concerning the rights and transfer of such rights relating to an application or a European patent where the Implementing Regulations provide that they are to be recorded. Hence, it can be inferred from that provision that not all kind of transfers of rights need to be registered, but only those explicitly mentioned in the Implementing Regulations. In so far as Rules 22 to 24 EPC provide that transfers, licences and other rights in a patent application must be registered, the provisions of Rule 143(1) EPC can only be understood if the term “transfer” in Rule 22 EPC does not include all means of acquiring ownership of a patent application.”

An interpretation of Rule 22 EPC in view of its purpose, led the Board of Appeal to reach the same conclusion. In point 4.5 of the reasons, the Board held that:

“The intention of Rule 22 EPC is to ensure the informational role of the European Patent Register and to avoid any ambiguity as to who owns a patent application during proceedings before the EPO. … [These requirements] are justified when transferring a patent application by assignment, since only a specifically designated right is transferred to a third party and the former patent proprietor, i.e. the assignor, continues to exist. There are therefore two legal entities that still exist, and it is important to be able to determine, by consulting the Register, the extent of the rights whose ownership has been transferred and the identity of the owner.

However, in the case of universal succession, the entirety of the assets are transferred automatically as a result of the disappearance of the legal personality of the patent application’s owner. Consequently, there is no risk of confusion between two legal entities that could be considered owners of the patent application, nor regarding the extent of the rights transferred, since all assets remain united.”

The Board of Appeal concluded by stating explicitly that the notion of “transfer” in Rule 22 EPC should be interpreted as not covering universal succession, such that none of the requirements laid down in Rule 22 EPC is applicable to such cases. The Board thus set aside the decision of the Receiving Section to refuse to consider the application in suit as being a divisional application.

Comments and takeaways

Decision J 7/21 provides a welcome confirmation from a legal Board of Appeal that universal succession is considered an exception to the requirements under Rule 22(3) EPC. However, Rule 22(3) EPC is to be applied in cases of a transfer of rights where the former owner continues to exist.

Thus, where rights have passed by universal succession, recording a change in ownership of the parent application prior to filing of the divisional application is recommendable in case there is any question about the effectiveness of the change. In case of a transfer of rights by contract, e.g. by assignment, it seems to remain the case that the divisional application should be filed in the same name which is recorded against the parent application.

It should also be kept in mind in this context that transfers can only be registered for pending applications, i.e., where the withdrawal of an application is final, it can no longer be transferred (see, e.g. J 10/93). Particular care should therefore be taken when filing divisional applications where the parent application is intended to be withdrawn.

Commentary provided by Mathys & Squire has featured in an article by The Patent Lawyer, providing an update on the UPC and ‘patent trolls’.

An extended version of the press release is available below.

‘Patent trolls’, or ‘Non-practicing entities’ as they are generally now known, are companies that use patent rights to earn income from third parties, rather than producing their own goods or services under the patent rights. They often do this by litigating against businesses that they allege are infringing the patents owned.

Under the new laws of the Unified Patent Court, a company facing a patent infringement claim will have as little as two months to prepare their defence. Such a short period of time may be too little for a company to build a proper, robust defence in a complex case.

At present in national litigation, defendants normally have between four to six months to prepare their arguments, including usually an extensive search for prior art (i.e. evidence that the invention is already known or is obvious).

‘Patent trolls’ are expected to deliberately refrain from notifying the alleged patent infringer of the pending litigation until the very last minute, leaving them at a considerable disadvantage.

Chris Hamer, Partner at Mathys & Squire, says the narrow timeframe could make it significantly more difficult for defendants to prepare an effective defence.

Chris Hamer explains: “Some businesses may not even be aware that they are infringing a patent. Eight weeks is very little time for a business to review a summons, instruct legal counsel and come up with a successful defence. Patentees will be only too willing to exploit this advantage for them.”

Even if a patent troll is unsuccessful in enforcing their patent rights, they may only have to pay a small proportion of the other party’s legal costs in cases heard in the UPC. This could act as an incentive to pursue litigation.

Recoverable costs under the UPC are capped at €2m (for a case valued at more than €50m). The UPC also has the discretion to lower the cap if the amount threatens the economic viability of the company. In the UK (which is not under the remit of the UPC), recoverable costs are uncapped and the losing party could typically expect to pay 60-80% of the victor’s costs.

Andreas Wietzke, Partner at Mathys & Squire says: “For patent trolls, pursuing a case in the UPC could be a gamble worth making. If they are successful in blocking use of a patent, the injunction will apply to all selected jurisdictions within the UPC. Even if they lose the case, the potential for cost recovery is considerably lower than in countries such as the UK and US.”

“There has been concerns that the problem that the US has with patent trolls could spread to Europe. The UPC rules do seem to make the environment much more inviting to them.”

“If you are a corporate what you will need to do is set up internal systems so that as soon as a claim comes in you can respond quickly and prepare your case. If you don’t respond quickly you’ll not only be on the back foot, you could just lose by default.”

Data and commentary provided by Mathys & Squire has featured in articles by World IP Review and The Patent Lawyer, providing an update on the rapid growth in design applications.

An extended version of the press release is available below.

The number of applications made to the Intellectual Property Office to protect product design rights jumped to a record high 67,034 in the past year* up from 65,248 the previous year, says leading intellectual property law firm, Mathys & Squire.

In the past year, an average of 5,586 design applications were filed each month. In the year leading up to Brexit**, the average number of monthly applications was 2,480.

Brexit has prompted a rush for businesses to file new applications in both the UK and the EU to protect product designs. Since the end of the Brexit ‘transition period’ on January 1st 2021, the UK no longer falls under the scope of EU registered designs, which offer protection across all member countries of the EU. As a result, businesses now have to register a product design in both the UK and in the EU to obtain the protection that they would have once obtained via a single EU registered design application.

Design rights protect the appearance of a product such as its lines, contours, shape, colour, texture or the ornamentation of the product. Design rights can extend to include digital media products, such as computer game characters or graphic designs.

Mathys & Squire says design is a crucial aspect of product differentiation and it is becoming increasingly important for businesses to protect this often hotly-contested area of IP. Failure to take adequate protection could make it more difficult for them to scale up. Investors may decide that without protections for design, a business is not a safe investment prospect and withdraw financing.

Max Thoma, Managing Associate at Mathys & Squire says: “Design applications have seen a sharp spike in the last year and these figures are likely to remain high, as businesses will continue to have to register designs in both the UK and Europe.”

“Not having adequate protections in place for designs could have significant ramifications for businesses. Investors are increasingly keen to see that design rights and other IP is properly protected before they invest. That means failure to protect rights could see businesses miss out on crucial opportunities to grow.”

In addition to securing vital investment, registering designs is vital to ensure your IP is legally enforceable and competitors cannot enter the market with similar products.

Companies that have taken legal action over design rights include:

Number of design applications hit record high last year

*Year-end September 30th 2022
**2019-20

The Unified Patent Court (UPC) – which is expected to launch in April 2023 – will have jurisdiction not only for patent litigation, but also for litigation involving supplementary protection certificates (SPCs) issued for medicinal products and plant protection products. The types of patents for which the UPC will have jurisdiction are well-defined, but analysis by Mathys & Squire’s SPC team has identified some areas of uncertainty when it comes to SPCs.

These uncertainties relate particularly to SPCs which are in force at the launch date of the UPC, and potentially also to SPCs which were previously granted but which are no longer in force by that date. As such, these uncertainties are likely to be especially relevant during the early years of the UPC’s operation, and should be taken into account by SPC holders when deciding whether to opt their SPCs out of the UPC’s jurisdiction.

A brief summary of the problems is set out below. For those who are interested in the legal position, a more detailed analysis of the problematic provisions in the UPC Agreement and Rules can be accessed here.

The problems in brief

Due to a discrepancy in how the UPC Agreement (UPCA) defines the jurisdiction of the UPC with respect to patents vs. its jurisdiction with respect to SPCs, there is a lack of clarity over whether the UPC will have jurisdiction over SPCs which are in force on the date when the UPC officially opens its doors, i.e. where the underlying ‘basic patent’ has expired; and whether the UPC will have jurisdiction over SPCs which have ceased to have effect prior to that date (e.g. for retroactive assertion of those SPCs against historical infringements and/or for retroactive invalidation of those SPCs, subject to any applicable limitation periods).

In brief, European patents which have ‘lapsed’ prior to entry of the UPCA into force are excluded from the UPC’s jurisdiction (Article 3(c) UPCA). However, when it comes to SPCs, the wording of the UPCA seems to give the UPC jurisdiction over any SPC “issued for a product protected by a [European] patent” (Article 3(b) UPC) without explicit limitation as to the status of the SPC or its underlying patent. Thus, in essence, Article 3(b) might be interpreted as meaning that an SPC could fall under the UPC’s jurisdiction even if the patent forming the basis for that SPC is excluded from the UPC’s jurisdiction by operation of Article 3(c) – and potentially even if the SPC itself is no longer in force.

If the UPC does have jurisdiction over SPCs in such circumstances, there is also a potential discrepancy between the UPCA and the Rules of Procedure of the Unified Patent Court which renders it unclear whether, using the mechanism provided under the current Rules, such SPCs can be opted out of the UPC’s jurisdiction during the ‘sunrise period’ of three months before the UPCA enters into force or during the ‘transitional period’ of at least seven years which will follow (Articles 83(1) and 83(3) UPCA). In essence, it is unclear whether the Rules as currently constituted are appropriate to implement the opt-out procedure in respect of such SPCs.

In brief, this is because under Rule 5.2 the route to opt out an SPC is to opt out the underlying patent. Although Rule 5.1permits opt-outs to be registered for “expired” patents, it is not clear whether this rule can be applied to patents which expired prior to the entry of the UPCA into force. One interpretation suggests that Rule 5.1 can only apply to patents which would otherwise have been within the UPC’s jurisdiction before their expiry, i.e., patents which expire after the date on which the UPCA enters into force. Under this interpretation, a situation potentially then arises in which the UPC has jurisdiction via Article 3(b) over SPCs based on patents which expired prior to entry into force of the UPCA, but those SPCs cannot be opted out using the mechanism provided under the current rules.

In this context it may perhaps be relevant that Article 3(c) employs the term “lapsed” to refer to patents which are not in force, whereas Rule 5.1 employs the term “expired”. If these terms are intended to differ in scope, this could potentially offer a solution to the opt-out problem identified above – but with possible ramifications for the UPC’s jurisdiction over lapsed or expired patents, which are explored further in our detailed analysis.

As a further point of uncertainty, if the UPC does have jurisdiction over SPCs which are no longer in force when the UPCA enters into force, it is unclear how far back that jurisdiction might extend. This is due to a lack of harmonisation of limitation periods in the national laws of participating states, and the lack of a uniform statute of limitations in the UPC legal texts. This creates uncertainty surrounding the possibility of retroactive UPC litigation concerning such SPCs.

Summary and recommendations

As there are several possible ways of interpreting the provisions of the UPCA and Rules relating to SPCs, it seems quite possible that the UPC itself will be asked to decide on the correct interpretation if a suitable case is brought before it in its early years.

Although it is unclear whether expired SPCs and/or those which are in force when the UPCA enters into force will as a matter of fact fall under the UPC’s jurisdiction, the factors which we have identified above may play an important role when considering whether or not to seek to opt such SPCs out of the UPC’s jurisdiction.

SPC holders who are averse to the prospect of centralised revocation through the UPC may wish to take a precautionary approach, despite the uncertainties above, and attempt to lodge opt-outs in respect of the patents underlying such SPCs using the mechanism presently provided by the Rules, in order to opt the SPCs out of the UPC’s jurisdiction.

Download the full legal analysis here.

To discuss any of the issues raised above in more detail, please feel free to contact our experienced life sciences & chemistry team.

Following reports in October that the Administrative Council of the European Patent Office (EPO) had passed “a new package of rule changes intended to adapt the rules of the EPO to the digital age”, the EPO Administrative Council has now published official confirmation of this update.

The decision of the Administrative Council of 13 October 2022 amends a number of Rules under the Implementing Regulations of the European Patent Convention (EPC). These amendments confirm, amongst other changes, the abolition of the ‘10-day rule’ for notification of documents; instead, documents will be deemed to be delivered on the date that they bear.

A safeguard is provided by amended Rules 126 and 127 in the event that documents fail to reach the addressee, in which case the EPO bears the burden of proof to establish that documents were delivered and to establish the date on which they were delivered. If a document is received more than seven days after the date shown on the document, the period for response will be extended at its end by the number of days exceeding seven. This brings EPO practice more closely into alignment with similar provisions under the Patent Cooperation Treaty (PCT) for international patent applications.

The EPO’s decision confirms that this change will enter into force on 1 November 2023 and apply to documents notified by the EPO on or after the same date.

Other rule changes approved by the Administrative Council, which come into force on 1 February 2023, relate to the requirements for the formatting of the application documents. At present, the Rules contain prescriptive requirements relating to (for instance) page margins, the presentation of drawings, and text size and spacing. In recent years, many of these rules have not been strictly enforced, especially with the decline of paper-based filing. The amended rules no longer contain these detailed provisions, but instead grant the EPO President a wide discretionary power to determine suitable requirements. This seems to be intended to allow greater flexibility to adapt the EPO’s practices for electronically-filed documents.

A further rule change as of 1 February 2023 relates to the provision of search results. At present, when a European search report is drawn up, the EPO is required to transmit this to the applicant together with copies of any cited documents. An amendment to Rule 65 now removes the requirement for the EPO to ‘transmit’ copies of the cited documents, and instead specifies that the EPO should “make available” copies of those documents. It remains to be seen how this will be implemented, but one possibility mentioned in the EPO’s detailed proposal document is that the EPO will make citations available in a digital repository rather than sending them directly to applicants. Among other things, this rule change is intended to allow for easier citation of ‘non-traditional’ references such as videos and other multimedia presentations.

The full details of the changes, including their context within the EPO’s Strategic Plan 2023, are now available through the published proposal document.

Semiconductor shortage continues to be an issue worldwide for the tech sector. Even the introduction of economic packages, such as the US CHIPS and Science Act, which aims to invest $280 billion to bolster their national semiconductor capacity, have done little to boost confidence in global semiconductor reserves. Now, new policies coming out of Washington could have major implications on global semiconductor trade.

Last month, the US government released a regulatory filing that went relatively unnoticed, particularly when considering its context in terms of the global ramifications that could proceed. The US government has announced the implementation of additional export controls on their semiconductor manufacturing items, implementing trade barriers to 28 entities, all located in China.

Whilst finished semiconductors are seldom made in the US itself, manufacturing entities within China rely on US imports of resources for their chip production. This is yet another blow in the semiconductor trade war ongoing between these two global tech giants, one which may be seen as a US attempt to hinder China’s technological ambitions, as highlighted in their latest five-year plan.

As trade negotiations continue, Europe has been significantly impacted by these global changes to semiconductor trade. In the immediate fallout of these export controls, there is considerable uncertainty for European chip firms when considering trade with their US and Chinese clients. There is also great concern amongst private companies across Europe, as to the unintended consequences the US government’s actions will have on international supply chains, and more pressingly, how the Chinese government will respond to these serious trade regulations.

The implications on trade within the EU can already be seen. As the US went ahead with these restrictions without any public consultation or conference with international allies, nations have been caught off guard, and confidence in future chip supplies has slipped. It is vital governments and their representatives communicate that the new trade restrictions will have no impact on European technology competitiveness, whilst also ensuring that the US-EU Trade and Technology Council (TTC) keeps its legitimacy as a body responsible for the discussion of transatlantic trade controls.

Where the US CHIPS act saw massive amounts of investment funnelled into semiconductor research and development, a more inclusive STEM workforce, and bolstered semiconductor capacity, the European CHIPS act is still a moot point with no concrete legislation. Now more than ever, a regional European semiconductor investment policy is needed to combat some of this global uncertainty. The semiconductor industry has now become a complex economic environment, one which Europe needs to ensure it can navigate if it wants to maintain its standing within the worldwide tech sector.

Although a cemented legislative CHIPS act for Europe appears to be some way off, it is clear that Europe is attempting to develop a more independent tech manufacturing sector. In April of this year, the European Commission put forward the possibility of a European CHIPS act equivalent, with aims to boost Europe’s share of global chip manufacturing from 10% to 20% in the coming years. This act aims to boost investment for technological capability and capacity, as well as to provide some levels of strategic autonomy for Europe moving forward. If this investment package becomes a solid reality, European governments can feel more comfortable when considering the trade regulative activities of the likes of China and the US.

The 27th United Nations Climate Change Convention (COP27) concluded on the 20th of November 2022, two days after the scheduled end of the conference. A total of 14 days of discussions were held in Sharm el-Sheikh, with the climate change issues tackled ranging from a review of current targets for net zero carbon emissions to agreement for a global fund to tackle ‘loss and damage’ incurred as a result of the climate crisis.

The participants consisted of representatives from over 190 countries with backgrounds in politics, activism, and enterprise, to name a few. Following the conference’s conclusion, the ‘Sharm el-Sheikh Implementation Plan’ was released, which provides an overview of the key outcomes from the conference and lays out a climate action plan for the years to come. The decisions made within the plan will have implications for many industries by driving technology trends and corresponding changes in the intellectual property (IP) landscape. 

Loss and damage

The primary takeaway from COP27 was the ‘breakthrough’ agreement regarding the ‘loss and damage’ fund for vulnerable countries. ‘Loss and damage’ refers to the costs that are being incurred by communities, largely in developing countries, due to the effects of climate change, including rising sea levels from which they lack the resources to recover. These countries are taking the brunt of the climate change damage, while contributing to it the least.

By 2030, developed nations could be forced to pay anywhere between US$160 and US$340 billion yearly to help developing nations adapt to climate change by funding disaster relief, constructing sea walls or breeding crops that can better withstand drought. All of these adaptation methods will require fast paced innovation to help keep up with the implications of climate change. We might therefore expect to see an increase in inventions and patent applications relating to climate adaptation technologies in the years to come.

Energy

Energy was again a key focal point of the COP implementation plan. Commitments were reiterated regarding the urgent need for parties to reduce global greenhouse gas emissions immediately, deeply, and sustainably across all applicable sectors. This includes increasing the use of low emission and renewable energy, energy transition partnerships, and other cooperative initiatives aimed at reducing our dependence on fossil fuels.

An enhanced commitment was made underlining the urgency to accelerate the transition to clean renewable energy between now and 2030 and to make energy systems more secure, dependable, and resilient. This, accompanied by a commitment to a transitional clean energy mix, point towards further growth in the cleantech sector, which is likely to be accompanied by an increase in the protection of resultant inventions and other IP.

Technology deployment

A new technology executive committee has been established alongside other commitments, in order to more efficiently deploy climate mitigating and adapting technology worldwide. The function of the committee is to support joint work programme activities, including technology needs assessments, action plans and roadmaps for nations worldwide. The plan also highlights the importance of cooperation on technology transfer when it comes to implementing new technologies. Firms and countries are encouraged to engage in cooperative activities in order to spread key innovations worldwide, particularly to those countries requiring most adaptation to climate change. The IP implications from this will likely be seen in an increase in collaborative invention efforts, leading to more joint technology developments and joint patent applications.

Mitigation

At COP27, a new mitigation work programme was launched, aimed at urgently scaling up mitigation ambition and implementation, with governments being asked to revisit and strengthen current targets in their national climate plans by the end of 2023 and accelerate efforts to phase down coal power and phase out fossil fuel subsidies.

The work programme will start immediately and continue until 2030, with at least two global dialogues held each year. This work programme should drive new policies and technologies that will hasten the transition to low emission energy systems, including accelerating the deployment of clean power generation and energy efficiency measures, and we therefore expect to see an increase in innovation in this area.

Conclusions for IP

As COP27 draws to a close and we look ahead to the future, it is clear to see the technology trends that might emerge from the decisions that have been taken, and the impact these trends will have on the IP landscape. Cleantech and emission mitigation technologies will likely see a growth, accompanied by a corresponding increase in the protection of inventions and other IP arising from innovations in this area. As countries adapt to climate change, expect to see more and more innovations aimed at reducing the impact of climate disasters, with a particular focus in countries most affected by it. The increase in financial support for innovation will only encourage further growth and innovation across these sectors and a corresponding increase in the protection of associated IP rights. 

The unitary effect and the Unified Patent Court (UPC) system comes with a wider aspect as to validity against national prior rights (national applications with an earlier priority date but a publication after the priority date of the European patent (EP)).

Such national prior rights are not relevant as to the grant of an EP but can lead to national validity issues (e.g. a German prior right might restrict validity for the German validation). For national validations, this can be addressed by either directly filing an adapted claim set for the respective country (e.g. Germany) or amend the claim set during a national procedure (nullity or restriction).

In case the respective country is a UPC member state (e.g. Germany) and the patentee selects unitary effect, no national limitation is available any longer. Thus, to limit the Unitary Patent (UP) against the national (e.g. German) prior right, the full UP needs to be limited with effect for all UP countries. Therefore, additional care should be taken while considering a UP when national prior rights are involved.

In a helpful move to assist applicants in this regard, the EPO is now providing, as a non-binding service, additional information on national prior rights with the Rule 71(3) EPC ‘notice of allowance’ communication. In summary, the EPO will now perform ‘top-up’ searches whilst gearing up to issue a notice of allowance, toward identifying any national prior rights, while providing an indication as to their prima facie relevance. Any researched relevant national prior rights will then be flagged to the applicant, as a courtesy, with the notice of allowance communication. This search will be performed at no additional cost (and without any need to specifically request it) and will be carried out for all EP applications where the notice of allowance communication was ‘triggered’ on or after 1 September 2022.

Thus, this additional top-up search effectively provides an additional layer of quality control. It will remain the applicant’s responsibility to perform a careful assessment of any national prior rights, and take any action considered necessary. The need to act will be particularly important where the UP and the UPC are concerned.

As many practitioners in the field will be aware, the rapid pace in the deployment and use of standardised wireless technologies, such as 3G, 4G and 5G cellular technologies, has seen wider interest in the use of standards and the licensing of patents essential to those standards – so called standards essential patents (SEPs).

In December last year, the UKIPO published a call for views on SEPs and innovation, in the context of challenges faced by industry. The UKIPO has recently published the response, in which six key themes were identified by respondents, namely:

The UK Government intends to use the evidence received to date, and to engage further with businesses, to determine what actions it takes next including whether any government intervention is required. It will be particularly interesting to note if the UK Government decides to take any active intervention in the SEP arena, particularly in view of the landmark Unwired Planet decision, which confirmed that English courts are suitable as forums for SEP disputes at a global level.

It is understood that any significant policy interventions will be subject to public consultation, and that further updates are expected in 2023.

The World Intellectual Property Organisation (WIPO) has officially released the 2022 Global Innovation Index (GII). The GII evaluates 132 countries, aiming to capture the position of their innovation ecosystems, looking at factors such as science and technology, labour productivity, industry diversification and creative goods exports.

For the twelfth year in a row, Switzerland has topped the index, followed by the United States, Sweden, the United Kingdom and the Netherlands. When looking at the countries improving their GII placement, China is quickly approaching the top ten, whilst India has entered the top 40 for the first time.

Figure 1. Global Innovation Index 2022 rankings (top ten).

Global innovation hubs and China’s race to the top of indicator rankings

The GII also looks at the biggest technology innovation clusters for 2022. These ‘science and technology hubs’ look at the innovation centres in the world with the highest density of scientific authors and inventors. For the year 2022, the top science and tech hub is Tokyo–Yokohama, followed by Shenzhen–Hong Kong–Guangzhou (China and Hong Kong), Beijing (China) and Seoul (Republic of Korea). These clusters represent innovation output at a local level, rather than the global scale of the broad GII, and recognise that technology innovation can indeed be a localised phenomenon, shedding light on the communities of innovators worldwide.

It is also of note that Cambridge in the United Kingdom has risen to the global no.1 position in respect of science and technology intensity, that is the sum of patent and scientific publication shares divided by the area’s population. Mathys & Squire’s Cambridge office is proud to support the innovative companies and entrepreneurs that have contributed to this world-leading innovation ranking.

Furthermore, China’s growth within the GII has not gone unnoticed. Climbing to eleventh place in the global ranking indicates China’s recent intentions to foster a more innovative environment for their domestic inventors. When looking more granularly at the specific indicators used to determine the index, China officially ranks first for nine of out of around 80 indicators. These include key innovation areas such as patent by origin, labour productivity growth and PISA scales in reading, maths and science.

Future innovation trends – supercomputing and biotechnologies

China’s recent growth is not the only key takeaway from the GII. The WIPO also produced a list of future innovation trends to look out for, which are referred to as ‘innovation waves.’

The first of two developments is the digital age innovation wave, built around growth in supercomputing and artificial intelligence. The developments within this industry, particularly when considering intellectual property (IP), have already been seen recently in UKIPO’s guidance on inventions created by AI and their patentability. Increasingly, people are considering the future of IP through the lens of AI creations.

The second growth and innovation wave is built around breakthroughs in biotechnologies, nanotechnologies, new materials and other sciences. This trend surrounds the world of hybrid science, whereby the natural environment and modern technology interweave to generate technologically advanced, green solutions. The implications of the growth of nanotechnology stretch far beyond green tech; they possess the capability to expand to engineering and medical device innovations, with future potential to turn science fiction into reality.

It is apparent these two waves indicated by the WIPO will face some serious hurdles when it comes to their diffusion and adoption by sectors worldwide. These innovation waves, alongside growth trends highlighted in the 2022 results, are sure to make for an interesting year when it comes to analysing global development, prior to the 2023 GII. The role of IP during this time will be to ensure inventors have the security necessary to continue working on their new innovations, in order to foster a more fruitful environment for knowledge transfer, creativity and invention.