In recent European Patent Office (EPO) Decision T 116/18, the Board of Appeal has referred important questions to the Enlarged Board of Appeal (EBA) regarding the issue of to what extent an invention must be plausible from the application as filed. A decision on this issue by the EBA would have important ramifications for how much experimental data is required to be included in a patent application, especially in the chemical and pharmaceutical sectors.
The issue of whether a technical effect is plausible from the original disclosure of a patent application is a controversial one in European patent law and is subject to much debate. There is no statutory requirement for plausibility in the European Patent Convention (EPC), but the criterion has been found necessary for patentability in many Board of Appeal decisions. According to established EPO case law, where a technical effect is recited in a claim (for example in medical use claims), its plausibility from the application as filed is a requirement for whether an invention is sufficiently disclosed (Article 83 EPC). On the other hand, where a claim does not recite a technical effect (such as a claim to a chemical composition per se), but the achievement of a technical effect is relied upon for inventive step, the plausibility of the technical effect from the application as filed has been found in certain decisions to be an important requirement for inventive step (Article 56 EPC). The case from which the present referral originates deals with the issue of plausibility under inventive step and the use of post-filed evidence to demonstrate the existence of a technical effect.
In many cases, a claimed invention (such as a pharmaceutical or chemical composition) is only inventive because it achieves some unexpected technical effect that it would not be obvious from the prior art would be associated with the claimed composition. In such cases, data to demonstrate the technical effect is often included in the application as filed. However, in others, data is not included in the application as filed, and the application merely contains an assertion that said technical effect is achievable. In other cases, the application as filed does not even contain a reference to the achievement of the effect. In the latter two scenarios, post-filed evidence is often filed during prosecution of a patent application or during opposition proceedings to demonstrate the existence of the technical effect. Post-filed evidence is very often filed where the problem underlying the invention must be reformulated in view of prior art that the patentee was not aware of when the application was filed. For example, data is often provided to demonstrate an unexpected improvement over said prior art.
The case from which the present referral originates concerned claims relating to an insecticide composition comprising a combination of known insecticidal compounds and an alleged synergistic effect associated therewith. The application as filed contained evidence of a synergistic effect against the insect pest species – S. litura and P. xylostella – at certain concentrations. During opposition proceedings, the opponent was able to demonstrate with data and argumentation that a synergistic effect against these above species was not credibly achieved across the scope of the claims for these species. However, using post-filed evidence, the patentee was able to demonstrate a synergistic effect against a different pest species, C. suppressalis. The problem underlying the invention could thus be reformulated as the provision of synergistic insecticidal activity against the species C. suppressalis. The opponent objected that whilst the post-filed data showed that this problem had been solved, it was not plausible from the application as filed that the claimed compositions solved such a problem due to the absence of data showing activity against C. suppressalis, and that as a result, the patentee’s post-filed data should not be taken into account when reformulating the problem underlying the invention. Without the patentee’s post-filed data, there was no evidence supporting a synergistic activity against C. suppressalis and the question of whether the patentee’s post-filed data could be taken into account would thus determine whether or not the claimed compositions were inventive.
The Board of Appeal decided to refer questions on plausibility to the EBA, as, in their view, there were three diverging lines of case law regarding to what extent post-filed data can be relied upon by patentees to demonstrate the existence of a technical effect. The Board considered the three lines of case law to be:
1) Ab initio plausibility cases;
2) Ab initio implausibility cases; and
3) No plausibility cases.
The Board considered a referral necessary to ensure uniform application of the law and because points of law of fundamental importance had arisen.
In the ‘ab initio plausibility’ line of case law, the Board identified a principle that the plausibility of a technical effect must be established in the originally filed application by direct evidence of the technical effect such as experimental data or scientific reasoning; only then could post-filed data be considered. In the ‘ab initio implausibility’ line of case law, post-published evidence could only be disregarded if the skilled person would have legitimate reasons to doubt that the purported technical effect had been achieved at the filing date. For example, if common general knowledge at the filing date indicated to the skilled person that the technical effect was not achievable. In the ‘no plausibility’ line of case law, the concept of using plausibility as a way to determine the admissibility of post-filed data was rejected altogether and found incompatible with the EPO’s problem and solution approach for assessing inventive step.
The Board of Appeal thus referred the following three questions to the EBA.
Answers to these questions from the EBA may have important ramifications for the validity of patents and affect best practice regarding drafting and prosecuting patent applications at the EPO. For example, if the EBA answers ‘Yes’ to questions 1 and 2 but ‘No’ to question 3 (approving an ‘ab initio plausibility’ standard), this would mean that applicants only receive patents for subject-matter for which data or other substantiation is contained in the application as filed that makes plausible the technical effect relied upon for inventive step. This might have the greatest impact on practice in fields such as pharmaceuticals where, quite often, patent applications directed to broad novel classes of compounds are filed with limited data demonstrating the effect of said compounds. On the other hand, if the EBA approves a ‘no plausibility’ requirement, this could open the door to considerably more ‘speculative patenting’ where applicants are granted patents for merely theorising that an invention is possible.
In the referral decision, the Board expressed concern that the ‘ab initio plausibility’ standard would place a very high burden on applicants where a reformulation of the problem underlying the invention was required in view of prior art unknown at the filing date, since post-filed data would not be able to be provided in support of any technical effect that was not plausible from the originally filed application. This risks undermining decades of case law allowing the reformulation of the technical problem and relying on post-published evidence to show that the newly formulated problem is solved.
Interestingly, the Board questioned whether the ab initio plausibility and implausibility standards were compatible with the principle of free evaluation of evidence, and what the legal basis was for preventing a patentee from relying on fact evidence relevant to inventive step, and from preventing a Board from taking into account evidence that it finds decisive. The Board also raised the issue of whether Article 56 EPC indeed provides legal basis for plausibility, commenting that Article 56 EPC simply states that an invention must be not obvious in view of the prior art, whereas the rationale for plausibility is whether or not the invention had indeed been made at the filing date (a separate criterion). The Board also made references to other commentators who had made similar observations.
There is some chance that this EBA referral will not be admitted on the basis that the points of law are not of fundamental importance and that the three lines of case law discussed above are not truly divergent. However, in the event that the referral questions are admitted, the EBA’s answers to these questions have the potential to significantly change practice at the EPO and best practice for drafting strong patent applications to be prosecuted in Europe.
The Royal Society of Chemistry (RSC) has opted to hold its annual Chemistry Week this year on 1-12 November 2021, to coincide with the 26th UN Climate Change Conference of the Parties (COP26). To reflect and celebrate themes that span both COP26 and the RSC’s Chemistry, Sustainability and Circular Economy (CSCE) campaign, the society has chosen ‘sustainability’ as the focus of Chemistry Week 2021. With this in mind, we are marking the event with an article celebrating how chemists are driving forward sustainability in the automotive sector.
As announced by the government in November 2020, the UK will phase out the sale of new petrol and diesel-powered cars by 2030, with many other countries following similar roadmaps. Such efforts will put huge pressure on the electric vehicle (EV) market to provide alternative vehicles that are convenient, reliable and cost-effective. The engines leading these efforts are the chemists, harnessing all the expertise of their field to revolutionise the automotive industry.
As the world faces the climate change crisis, its historic reliance on fossil fuels in powering the approximately 1.4 billion vehicles in use globally (as of 2021) is becoming increasingly unsustainable. Alternate means of fuelling our vehicles must be found, and, having gained considerable momentum over the past few years, EVs are at the forefront of these efforts.
The classification of EVs encompasses a broad field, including vehicles powered by fuel cells, solar cells and batteries, but they are all united by the fundamental importance of chemistry in governing their efficacy. The most popular type of electric vehicle relies on its onboard battery to store chemical energy that can be transformed into electrical power. This battery is a crucial element in the operation of such EVs, and extensive research is being conducted globally to find compounds – and their combinations – with the most advantageous chemical properties that can bring about the next revolution in battery technology. According to a joint European Patent Office (EPO) and International Energy Agency (IEA) study, patenting activity of battery technologies grew at an average annual rate of 14% between 2005 and 2018. Currently, the most abundant type of battery is the one that helped kick-start fully electric vehicles: the lithium-ion (Li-ion) battery.
The first patent for a Li-ion battery in its modern form was filed in 1983, by Professor Akira Yoshino while working for the company Asahi Kasei. This helped them to control 17% of the global market share for Li-ion battery separators until 2016. Sony, alongside Asahi Kasei, later went on to commercialise the first Li-ion battery product in 1991, protected by the security afforded by their patents. By 2015, they had shipped over five billion cells and pioneered a revolution in modern battery technology.
While the Li-ion battery was a huge step forward in battery technology – providing much higher charge density and effective rechargeability – within the context of EVs, there are still many limitations to overcome, with capacity being a prominent example. The average range of a fully charged EV (across the spectrum of manufacturers) is around 300km, with many being significantly lower. However, an understanding of the chemical properties that give rise to this limitation – namely the storage density of lithium atoms within the electrode materials – has allowed researchers to develop promising alternatives.
One such example is a prototype lithium-sulfur battery with the potential to more than double the specific energy (energy per unit mass) of Li-ion batteries. This innovation is based on replacing the cobalt-based cathode material with one comprised of S8 sulfur. As Li-ions and electrons converge at this cathode during discharge, a series of sequential reactions eventually reduce the octatomic S8 to eight individual sulfur atoms each bonded to two lithium atoms. In this way, each sulfur atom within the cathode can accommodate two Li-ions, in comparison with the roughly 0.6 Li per host atoms that conventional Li-ion batteries achieve. However, many other alternative solutions are being explored, such as the use of nickel, phosphates, and manganese, hinting that there is still space for innovation in this field.
The speed at which an EV can be charged is also a crucial limitation, with serious consequences for public adoption of fully electric vehicles if not suitably resolved; who wants to spend seven+ hours recharging their car when they forgot to charge it overnight, or take half an hour for a ‘quick’ top up just to get them home? While there are certainly vast infrastructure improvements to be made to alleviate some of this concern, chemistry still has plenty to offer on this front too. This research is primarily focused on the anode and electrolyte, as these are where the rate-limiting steps in the charging process occur. Regarding the anode, the theoretically superior properties of silicon (such as its 10-fold higher specific capacity) have made it a widely studied material. For example, it is the basis of an upcoming EV battery that claims to achieve five-minute charging times.
The chemistry of electrolytes is also making significant contributions towards resolving these issues. While conventional Li-ion batteries make use of liquid electrolytes, consisting of lithium salts in various organic solvents, many are turning their attention to the benefits solid-state electrolytes could provide (such as greater energy density and improved safety). Examples such as certain lithium metal oxides exist as a crystalline lattice that can possess extremely high ionic conductivity, permitting the rapid movement of lithium ions between the electrodes. Efforts being made towards the successful development of these solid-state batteries can be demonstrated by the fact that automotive manufacturer Toyota reportedly holds over 1,000 patents in the field. Nonetheless, there undoubtedly remains a wealth of opportunity across the entire field of battery development for the discovery of the next transformative breakthrough.
New technologies, even those as groundbreaking as the Li-ion battery, can take upwards of 20 years to successfully commercialise, so ensuring that you are able to exploit your invention to fully reap the rewards of your work and investment is important. Patents are an invaluable tool in protecting your intellectual property, giving you control over how your ideas are used.
With Halloween only two days away, we are bringing you some of the scariest scenarios our patent and trade mark attorneys face! Here, we are ‘creeping’ it real and sharing our first-hand intellectual property (IP) horror stories.
A classic nightmare in the world of trade marks is investing time and money in a brand, only to discover you cannot use it. It is not uncommon for businesses to adopt a trade mark without first conducting appropriate due diligence to establish if said trade mark is free from third party encumbrances. Should they commence the use of the brand and invest resources establishing it, business owners run a significant risk of developing a brand that they don’t truly own. It is often the case that as your hard work starts paying off, aggrieved third parties take notice and begin issuing Cease & Desist Letters. For the most unfortunate, the only way out is to surrender the brand and start from scratch under a different name!
Some brand owners will opt to run their own searches on the Trade Marks Registers, however, to think this will all run smoothly is often ‘witchful’ thinking. Infringement of IP rights goes beyond identical names, products, or trade marks. Earlier owners may enforce a range of rights, from similar trade marks protecting identical/similar goods and services, to trade marks with reputation and even non-registered trade marks. Problems may therefore ‘creep’ up on business owners from multiple directions, and so the only way to identify potential obstacles and assess the risk, is to run a full clearance search.
Another mistake that could haunt you is omitting to carefully consider future plans outside the UK when adopting a new brand. There are many aspects to take into consideration, especially if there are plans to use the brand in several territories. In order to ensure brand consistency across different markets, the searches discussed above would have to cover all jurisdictions. Trade mark protection is territorial and whilst it may appear free to use in the UK, this may not be the case in other countries.
Yet another factor to consider when expanding internationally is the local language and culture. Brands may be refused protection if their meaning has derogatory connotations, and such situations may not be obvious without translation and feedback from local professionals. Entering a market under a brand with negative undertones can easily escalate into a horror story, not only from an IP perspective, but also when it comes to your business’ PR.
Trick or treat is never fun when playing with your brand – beware of trade mark squatters. There are not many things scarier than attempting to use or protect your mark in a new market, only to find that third parties have already registered it, hoping to seek financial gain. Emma Raducanu’s success and novelty attracted attention not only from all tennis fans, but also trade mark squatters, who filed to register her name as a trade mark.
The process of recovering a brand name from squatters can be very expensive and time-consuming, therefore, it is advisable to file for protection sooner rather than later, including in ‘terror-tories’ that may become of interest in the future.
Ghosts, goblins and zombies might be scary, but those pale into insignificance for attorneys who face a conversation with a potential patent applicant who proceeds to tell a chilling tale about how their new invention has already been made public on social media or in a published paper, prior to them filing an official application! Under UK and European law, publicly disclosing an invention (in a manner that enables the notional ‘skilled person’ to recreate it) before submitting the patent application, usually means the chances of obtaining protection are minimal. IP rights can only be granted for inventions that are novel, and therefore, any previous disclosures have a detrimental effect on the possibility of receiving IP protection.
Although the news that no patent protection can be obtained is disappointing, some relief can be found in the registered design system, which – unlike patents – protects the appearance of products, rather than the way they work. Despite the same ‘novelty’ requirement also applying to design applications, the UK and EU (and several other jurisdictions) offer a 12 month ‘grace period’. Any previous product disclosures that took place within 12 months of filing date are not considered when assessing novelty. Discouraged applicants seeking IP protection for an already disclosed product should explore the creative utilisation of the registered design system – an alternative but commercially useful protection that can still be obtained, even for products which are not purely focused on aesthetics.
So what do all these horror stories have in common (other than bad puns)? They could have been easily avoided! The golden rule in IP is: the sooner, the better – so don’t wait! If you are working on an invention or building a brand, make sure you carry out your due diligence and help your future self by contacting a ‘fangtastic’ attorney to help protect your business.
Chancellor Rishi Sunak has delivered the Autumn budget 2021 statement, with a target of building a stronger post-pandemic economy for the UK. Of particular interest to us is the government’s focus on science and technology through research & development (R&D) and its recognition of innovation in supporting sustainability to combat climate change:
Reinforcing the sentiment set out in the Queen’s Speech in December 2019, Sunak commented that a boost in R&D investment will help to “secure the UK’s future as a global science superpower”. A 33% increase (£5bn) to the current research budget of £15bn a year has been announced, and with the majority of this funding planned to come into effect in 2023, this highlights the government’s emphasis on the importance of innovative science and technology businesses in recovering the UK’s economy. £2bn of this £5bn increase has been allocated to the UK’s membership of ‘Horizon Europe’, an EU collaborative research programme which brings together researchers from industry and academic research institutions.
An increased investment in UK R&D to £20bn per year by 2024, as well as a reform of R&D tax relief to support modern research methods on domestic activities, were also announced, but this £20bn sum falls short of the previously proposed (in March 2020) commitment of £22bn per year – a target that has now been pushed to 2026. In addition to supporting UK businesses carrying out research within the UK, a new ‘Scaleup visa’ has been introduced in an attempt to attract highly skilled people from abroad to growing UK businesses. With this new visa scheme, the chancellor announced the launch of a ‘Global Talent Network’ to attract “the best global talent in key science and tech sectors”.
Overall, the total investment in R&D investment will increase from 0.7% of GDP (in 2018) to 1.1% of GDP in 2024, which puts the UK ahead of Germany, France and the US; which once again confirms this government’s emphasis on the importance of adequately supporting science and innovation through funding.
Private R&D investment has also been prioritised, with an increase to £1bn per year by 2024 for core Innovate UK programmes (£300m more per year than in 2021). Sunak has further confirmed the new £800m government funding for the Advanced Research and Invention Agency (ARIA), as proposed in the March 2020 budget.
The subject of sustainability and the UK’s impact on climate change remains prominent in this year’s budget announcement, which comes just days before the start of the COP26 summit. The chancellor has confirmed that more than £11.4bn will be invested into a new fund for the government’s net zero strategy in support of “new green industries of the future”, bringing the total invested in the UK’s ‘green industrial revolution’ to £30bn since March 2021. A further £6.6bn will be spent on international climate finance, and the UK Infrastructure Bank (UKIB) will invest £107m in offshore wind in an effort to meet its target of all electricity coming from renewable sources by 2035. A £1.4bn package – the Global Britain Investment Fund – has been designed to encourage investment in the UK’s innovative green and renewable tech sectors, with over £800m of this reserved for the production of electric vehicles.
Alongside these promising steps to reaching a greener economy, Sunak also announced changes to air passenger duty and slashed taxes on domestic flights. The Office for Budget Responsibility predicts a 3.5% increase in passenger journeys a year as a direct consequence of this latest initiative; which has sparked concerns regarding our carbon footprint, especially in the run up to the COP26 summit.
In an effort to encourage smaller businesses struggling to prioritise sustainability, the chancellor announced an investment relief to encourage businesses to adopt green technology, e.g. solar panels and wind energy. Sustainability and a green economy are only achievable if change is implemented at every level of society – starting with legislation and governmental funding, through to individual households; the Autumn Budget is a step in that direction.
Through the Autumn budget, the government is highlighting its trust in innovation and R&D as building blocks to becoming a ‘global science superpower’ and rebuilding the UK economy. We look forward to seeing the outcome of such investment and how this will impact the science and technology space.
The European Patent Office (EPO) has a notoriously strict approach to assessing added matter according to Article 123(2) EPC. In the recent decision T 2842/18, the EPO’s Technical Board of Appeal 3.3.04 scrutinised the basis for a therapeutic effect in a second medical use claim. The decision demonstrates that speculative language can undermine a verbatim statement of a therapeutic effect in the application as filed.
According to Article 123(2) EPC, a European patent application or European patent may not be amended in such a way that it contains subject matter which extends beyond the content of the application as filed. Established case law sets out the ‘gold standard’ for assessing added subject matter according to Article 123(2) EPC: the claimed subject matter must be directly and unambiguously derivable from the application as filed. After the amendment, the skilled person may not be presented with new technical information.
In T 2842/18, the claim in question had been amended to include the medical use “for preventing or slowing down the progression in structural joint damage and erosion caused by rheumatoid arthritis”. The question was whether this effect could be directly and unambiguously derived from the application as filed.
The Opposition Division had previously held that the requirements of Article 123(2) EPC were met because the therapeutic effect was disclosed verbatim in Example 3 of the application as filed: “It is expected that re-treatment under the protocol herein […] will be effective in preventing or slowing down the progression in structural joint damage and erosion caused by RA”.
However, the Board took a more stringent approach, and considered whether the skilled person could directly and unambiguously determine that the effect of “preventing or slowing down the progression in structural joint damage and erosion” would be achieved when carrying out the claimed treatment. In view of the speculative language “it is expected”, the Board held that the skilled person would only derive from the statement that the “effect might or might not be achieved. The skilled person would not conclude that the effect was definitely achieved” (see point 48 of the Reasons).
The Board went on to consider the teaching conveyed by Example 3 as a whole. It was deemed that Example 3 contained further uncertainties as to whether the claimed therapeutic effect was achievable, which only confirmed that the above statement was merely expressing a speculation. The uncertainties pointed to by the Board (in points 48-49 of the Reasons) included Example 3 being a protocol for a proposed clinical study that had yet to be carried out, and the objective of the study being to “evaluate the efficacy” to “potentially prevent disease progression“.
On this basis, the Board concluded that the effect could not be derived from the application as filed, and so the claim extended beyond the content of the application as filed.
It is important to the note that the Board emphasised that this was not a question of enablement, noting that the “criteria for the assessment of direct and unambiguous disclosure of a claimed therapeutic effect are independent of, for example, the presence of data or the assessment of plausibility of the claimed effect”. Instead, the question was whether the effect could be derived from the application as filed in view of the phrase “it is expected” (see points 54-57 of the Reasons).
A significant parallel can be drawn with the case law, noted in our recent article, on the novelty of medical use claims over prior art indicating that a clinical trial for a candidate treatment is underway but results are not yet reported. Such disclosures are deemed not to anticipate a medical use claim directed to the candidate treatment because the skilled person is not able to discern from the prior art whether the therapeutic effect can actually be achieved. For example, in T 715/03, the Board stated:
“The fact that phase II studies are running also means that phase I studies are concluded. However, from this information the skilled person can only conclude that the results on safety and tolerability in humans, as well as the pharmacokinetics studies, were positive. However, there is no information about a possible beneficial effect on TS patients.”
More recently, T 1859/08 confirmed that “a mere statement that a […] therapy is being explored does not amount to a novelty-destroying disclosure” of a medical use claim.
Thus, even when a candidate treatment is deemed to be so promising that it is revealed to be undergoing clinical evaluation, that per se does not disclose the medical use of the relevant substance in treating the relevant patients. Vital information is missing – i.e. whether or not the treatment is actually effective.
Indeed, in T 1437/07, the Board explained that the teaching in the prior art “was considered as speculative or hypothetical because it was not clearly and unambiguously derivable” that a particular therapeutic effect had been achieved. Again, this was not a question of enablement, but rather a question of information content. In the absence of a concrete statement of “treatment”, the prior art could not be interpreted as disclosing the claimed subject matter.
Significantly, however, the Board held in T 1437/07 that a hypothetical embodiment could provide basis for an amendment. It was not relevant to Article 123(2) EPC whether the disclosure had in fact been carried out it, but rather whether it was possible to derive, directly and unambiguously, the effect from the written disclosure as a whole.
Therefore, the Board’s judgment in T 2842/18 aligns the standards of disclosure for added matter and novelty of medical use claims.
In summary, T 2842/18 highlights that hypothetical or conditional language, reflecting a more cautious approach commonly used in scientific literature, can risk reducing a disclosure of a therapeutic effect to a mere suggestion. If such language is present in the examples, it appears necessary to include more concrete statements in the description or claims on filing to ensure adequate basis for the therapeutic effect is provided.
The Royal Swedish Academy of Sciences awarded the 2021 Nobel Prize in the field of Chemistry to both Benjamin List of the Max-Planck Institute and David W.C. MacMillan of Princeton University, who independently developed asymmetric organic catalysts (organocatalysis) in 2000.
Prior to this discovery, it was believed that just two types of catalysts were available: namely metal complexes and enzymes. Organic catalysts provide a precise, more cost-effective, and environmentally friendly alternative and are formed from a stable framework of carbon atoms, to which one or more active chemical groups, typically comprising oxygen, nitrogen, sulphur, or phosphorus, can be attached.
List and MacMillan both followed different pathways in the discovery of this new field of chemistry.
After completing his postgraduate doctorate, David MacMillan set his sights on finding a simple, cost-effective, and more stable alternative to the moisture- and air-sensitive transition metal catalysts he had previously used in his research. As discussed in J. Am. Chem. Soc. 200, 122, 4243-4244, MacMillan’s research focused on the use of iminium ions from α,β-unsaturated aldehydes and amines to mimic the equilibrium dynamics and π-orbital electronics inherent in Lewis acid catalysts. To support this hypothesis, MacMillan demonstrated the use of chiral amines as enantioselective catalysts in Diels-Alder reactions between α,β-unsaturated aldehydes and various dienes.
In contrast, Benjamin List worked with X-ray diffraction scientists during this postdoctoral research, to determine how aldolase antibodies function. It was discovered that an amino group and an acid group were essential to the reactivity of the enzyme. As part of his research, List looked into the possibility of a simplified catalyst based on the identified essential functional groups rather than the use of a large and complex enzyme structure. The Hajos–Parrish–Eder–Sauer–Wiechert reaction (discovered in the 1970s), which uses the amino acid proline as a catalyst for asymmetric adol reactions, formed the basis of his research. Benjamin List’s paper, J. Am. Chem. Soc. 2000, 122,2395-2395, successfully demonstrates the use of proline as an effective asymmetric catalyst for a direct adol reaction between unmodified acetone and a variety of different aldehydes.
The discoveries by List and MacMillan offer an alternative method of producing organic compounds which does not rely on the traditional transition metal catalysts and enzymes.
Of this research, Johan Åqvist, chair of the Nobel Committee for Chemistry, explained: “This concept for catalysis is as simple as it is ingenious, and the fact is that many people have wondered why we didn’t think of it earlier.”
The discovery seems to be of particular importance to the field of pharmaceuticals. Many pharmaceutical compounds are produced as enantiomers – i.e. compounds formed having structures that are mirror images of one another. The individual enantiomeric structures can produce very different, and sometimes harmful, pharmacological effects within the body, and so only one of these mirror image structures is generally required for a specific drug. The organic catalysts developed by List and MacMillan can selectively produce one desired structure of a drug molecule.
Since the publication of this significant research, organic catalysts have already shown promising effects in methods of drug discovery and fine chemicals production.
Mathys & Squire has featured in an exclusive article published by The Telegraph, covering the introduction of so-called ‘security bonds’ of at least £50,000 for UK businesses seeking to litigate in the EU post-Brexit.
Partner Andreas Wietzke, from the Mathys & Squire Munich office, commented: “For British businesses, defending your intellectual property (IP) in the EU has become a much more costly affair since Brexit. This could have a chilling effect on actions by UK litigants in Europe, particularly for startups and SMEs with limited funding.
“For those in the UK with valuable patents or trade marks that are being infringed by businesses in Europe, the decision whether to pursue litigation is not quite so simple as it was before Brexit. Having to put up £50,000 or £100,000 to have your case heard in Germany, France or the Netherlands will give some of them pause for thought.”
Despite these expensive ‘bonds’, with the help of a patent attorney – e.g. through creating inter-EU IP entities, moving IP, or setting up internal licence agreements – businesses still have options when it comes to protecting their intangible assets through litigation.
For more information regarding IP litigation, wherever you are based, get in touch with a member of our team.
A version of this article has also been published by City A.M. – click here to read in full.
The United Nations’ 26th Framework Convention on Climate Change (UNFCCC) Conference of the Parties (COP26) will run from 31 October – 12 November 2021 in Glasgow. The Conference brings together politicians, activists, citizens and business representatives from over 190 countries to discuss tackling climate change through net zero carbon emissions targets review, clean energy initiatives to protect habitats, and raising $100 billion per year.
This year’s conference is particularly significant, given it is the first one since the pandemic and since the UK left the EU; and, most importantly, the first one of these conferences to review the net zero promise under the Paris Agreement. In Paris in 2015, all members of the COP21 have signed the Paris Agreement, pledging to limit global warming to 1.5 degrees celsius. All signatories agreed to come back with updated nationally determined contributions (NDCs) every five years, meaning this year’s 12-day summit will provide important updates on individual countries’ progress.
Aside from reviewing the Paris Agreement’s progress, COP26’s agenda anticipates discussions revolving the following four goals:
All representatives are asked to come forward with their 2030 emission reduction targets that put them on track to reaching net zero by 2050. All eyes will be on developed countries and the largest emitters, as their NDCs are likely to have the biggest impact on the success of the overall goal.
Those experiencing the direct effects of climate change and global warming are also those that have done the least to cause it. The international community must work together to deliver change involving building resilient infrastructure, warning systems, and restoring biodiversity – all targets that COP26 will aim to produce measurable goals and action plans to address.
Developed countries must raise at least $100 billion every year in climate finance to support developing countries. The UK is increasing its International Climate Finance commitment to £11.6 billion between 2021 and 2025, and intends to motivate as many other countries as possible to follow suit.
Working together is the only way to reach all of the above three targets and to move closer to a net zero economy. A focus for the negotiations during COP26 is finalising the rules needed to implement the Paris Agreement, called the ‘Paris Rulebook’.
With all member states attempting to decarbonise their economies, COP26 will shape policies and trade-offs that will have a direct effect on future for decades. The UK has already passed laws to end its global warming contribution by 2050 and to stop sales of new petrol and diesel cars from 2030 onwards. The results and outcomes of the summit will directly influence regulations put in place, to which businesses and individuals need to comply to. The conference has the power to shape trends in the upcoming years in terms of technology development, household items production, and consumption patterns. We expect new industries to form as the green economy continues to expand and is increasingly introduced in developing countries.
COP26 also poses a massive opportunity in that it is set to encourage member states to raise $100 billion every year to invest in ‘green projects’ to accomplish all goals by 2050. Capital will flow towards greener initiatives, putting polluting business models at risk, as investors anticipate a much higher return on investment in green companies. In recent years there has been an increase in financial help for innovators who are working on environmentally-friendly solutions, such as the Young Inventors Prize and the Earthshot Prize.
On top of this, the growing awareness of the climate crisis has shifted customer consumption patterns, with consumers willing to pay premium for a more sustainable alternative. It is therefore expected that the green economy will grow exponentially, and entrepreneurs will put the environment at the forefront of their decision making. These opportunities are likely to drive innovation and create new business models going forward.
It is evident that the future is green: there are not only more sustainable and carbon neutral products on the market, but also increasingly more solutions that proactively tackle climate change. Such new inventions and innovative concepts need to be protected and the best way to do so is in obtaining intellectual property rights.
Mathys & Squire works with numerous clean-tech clients on their green technology developments and sustainable solutions. We are proud to represent inventors and businesses who are working to combat climate change, and whose actions support the goals outlined by COP26.
We wait with anticipation to see how the outcome of the upcoming COP26 will shape decades of clean technologies and green solutions.
Mathys & Squire is pleased to congratulate its client, Enapter, on winning the ‘Fix Our Climate’ category at The Earthshot Prize ceremony in London on Sunday 17 October 2021.
The initiative was launched in 2020 by Prince William, Duke of Cambridge, and Sir David Attenborough, with an aim of rewarding organisations dedicated to climate action through project funding, covering five ‘earthshot’ goals for the planet: ‘Protect and Restore Nature’, ‘Clean Our Air’, ‘Revive Our Oceans’, ‘Build a Waste-Free World’ and ‘Fix Our Climate’.
Enapter has developed leading AEM Electrolyser technology to turn renewable electricity into emission-free hydrogen gas that can fuel cars, planes and heat homes. The £1 million prize will enable them to mass produce their technology, expand their team, and invest more in research and development, in a bid to provide 10% of world’s hydrogen generation by 2050. The company, which has a global presence in Italy, Germany, Thailand and Russia, has also recently broken ground on the construction of its new mass production site in Saerbeck, Germany.
Mathys & Squire and Mathys & Squire Consulting have worked very closely with Enapter for a number of years, supporting them in the growth and valuation of their intellectual property portfolio, as they expand and revolutionise the world of renewable energy. We are extremely pleased to hear the news and wish the Enapter team continued success!
The UK government released its National Artificial Intelligence (AI) Strategy on 22 September 2021, following guidance from the AI Council’s 2021 AI Roadmap and other related plans – the Innovation Strategy and National Data Strategy. Among other topics, the National AI Strategy (the strategy) will involve a consultation on AI and intellectual property (IP) with the UK Intellectual Property Office (UKIPO).
Since the AI Roadmap was published in March 2021, the UK government has been encouraged by the AI Council to produce an official strategy. Six months on, the strategy outlines how the UK aims to boost AI capabilities over the next 10 years, with the culminating goal to ‘make Britain a global AI superpower’.
The plan is broken down into three main ‘pillars’:
(i) investing in long-term needs of the AI ecosystem;
(ii) supporting the transition to an AI-enabled economy, while making sure all sectors can benefit from it; and
(iii) ensuring the UK gets the governance of AI technologies right.
Each of these pillars has associated short-, medium- and long-term key actions, along with a promise of a more detailed and measurable plan being released later this year.
One of the short-term plans is to complete a consultation on copyright and patents for AI in collaboration with the UKIPO. The strategy acknowledges that IP plays a significant role in building a successful business by rewarding people for inventiveness, creativity and enabling innovation. IP is noted for supporting business growth by incentivising investment, safe-guarding assets and enabling the sharing of know-how. The strategy further recognises that AI researchers and developers need the right support to commercialise their IP and help them to understand and identify their intellectual assets, providing them with the skills to protect, exploit and enforce their rights to improve their chances of survival and growth.
The strategy also recognises that for the UK to become a ‘science superpower’ and ‘the best place for researchers to innovate’, it needs an IP framework that gives British entrepreneurs, innovators and businesses a competitive edge. Among other things, the strategy promises to evaluate patentability of AI inventions, and to conduct an economic study to enhance understanding of the role the IP framework plays in incentivising AI investment.
The remaining short-term goals focus on supporting the Department of Education in developing AI skills and publishing subsequent AI strategies – the Defence AI Strategy and National Strategy for AI-Driven Technologies in Health and Social Care. Overall, the first three months are focused on data gathering and setting out the foundations for the framework to be implemented.
After the initial three months, the medium-term stage will involve the government looking to analyse all collected data and begin acting on it. The agenda includes a roll-out of new visa regimes to attract the world’s best AI talent and investing in AI programmes for schools, as well as encouraging a wider range of people to enter AI-related jobs. All these measures will ensure the UK has enough qualified workers now, and in the future, to sustain the UK’s new AI-driven economy. In addition, the government plans to publish a white paper on a pro-innovation position on regulating AI, in an effort to govern AI correctly. The strategy realises that AI is not currently unregulated, but it also recognises there are areas for improvement.
The long-term strategy will involve launching a new National AI Research and Innovation Programme to align funding initiatives: updating guidance on AI ethics and safety, as well as considering which machine-readable government datasets can be published for AI models. The government also intends to take on larger challenges, such as encouraging diversity in AI and including trade deal provisions in AI.
A more detailed and measurable plan for the execution of the initial stages of the strategy is expected towards the end of the year.
We will follow with interest the government’s progress in tackling the outlined action plans as part of its strategy to make the UK an AI superpower, and are pleased to see that IP has been identified as an important tool in achieving this goal.
