How the law will change in 2021

How the law will change in 2021

The changes brought by the COVID-19 pandemic have had an impact across society, and courts and IP offices are no exception. As part of our series of articles looking at what to expect in 2021, Kilburn & Strode attorneys discuss some of the legal developments on the horizon.

It’s not just business meetings, webinars and Christmas quizzes that are suited to Zoom; court and IP office hearings are increasingly conducted virtually too.

At the EPO, oral proceedings in examination and oppositions will be held online unless there are exceptional circumstances until September 2021 (at least). Board of Appeal hearings are heading the same way. While some practitioners have been sceptical about these changes, at Kilburn & Strode we see video conferencing as a hugely powerful and accessible medium for getting to a good decision quickly.

“This is good news for SMEs, who may now be able to afford to fight cases they couldn’t otherwise,” says associate Rosie Carrie. But, she adds, the long-term implications are hard to predict: Will parties be more likely to be confrontational when not seeing each other in person? Will they pursue arguments more strongly? Will the opportunity to resolve issues in an informal setting be missed?

At the EUIPO, there may be changes too. A reform in 2019 – overlooked by many people at the time – means that the CJEU now accepts appeals from the EU General Court only where they raise an issue that is significant with respect to the unity, consistency or development of EU law. In practice, this means the General Court is now the final arbiter for most cases involving EU trade marks and registered Community designs. That may lead to the EUIPO Boards of Appeal holding more oral hearings between parties, something that until now has been extremely rare.

Patent priorities

With normal routines disrupted and the opportunity to reflect, the pandemic has led many people to consider their values and priorities – getting fit, learning new hobbies or their social and political values. Policy debates – about the balance between competition and innovation, between access and reward; or between control and free speech – have always been part of IP. In this new environment, will we see them become even more prominent?

In patents, for example, partner Nick Bassil says he increasingly sees morality issues being raised regarding patents for stem cells, gene therapy etc, arising from the ordre public (public policy) and morality exception in Article 53(a) of the EPC: “This will become more and more relevant with genetic medicine.” More generally, debates about access to medicine, the role of patents, pricing mechanisms and sourcing of drugs are gaining attention as the pandemic increases awareness (if not understanding) of the role of medicine (see our separate article on political and social trends).

On your marks

In trade marks, meanwhile, debates are continuing about the proper scope of protection and whether making broad and/or multiple related trade mark applications should be discouraged (including on the grounds of bad faith). These issues were not fully resolved in last year’s SkyKick decision from the CJEU, but should be addressed further in the MONOPOLY case pending before the EU General Court.

Trade mark partner Iain Stewart says: “These debates reflect wider concerns about the cluttering of trade mark registers”. One view is that unlike in the US where there are strict use requirements, in Europe there are too many marks that are registered but not used. “It means clearance searches in the EU are becoming a nightmare. Sometimes the results run to dozens of pages,” explains Iain. As well as being a practical challenge for those seeking to apply for trade marks, particularly internationally, cluttering raises questions about the accessibility of the trade mark system and its ability to serve all users, especially SMEs.

UPC or not UPC?

The end of 2020 saw Germany take important steps towards ratifying the Unified Patent Court (UPC) Agreement, raising the possibility that it could theoretically come into effect, though significant legal challenges remain (meaning ratification by Germany and implementation in 2021 is unlikely). Gwilym Roberts says: “The UPC was always a lofty ideal and the simplification it offers remains attractive. But with the continuing legal challenges it faces one wonders if it’s time to look at alternative multilateral arrangements bringing the same benefits.” Whatever comes out Kilburn & Strode will continue to be a part of it as we continue to expand our European presence.

Contact Gwilym if you would like to have a word him about his writing, IP or the Welsh country side.

 Read article three ►

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