New dawns in IP: stories from the frontier of innovation
In the Intellectual Property (IP) world, time and space are defined by the speed of litigation rather than the speed of light. But when change does arrive, often it explodes onto the scene. This month's IP headlines capture the wonder, curiosity and trepidation of exploring these new horizons in technology and legal procedure. We chart the coming revolution of patenting in Europe and the inescapable presence of artificial intelligence (AI), but still find time to pause for a tasty trademark tale.
The sun also rises over the European patent system
June 1, 2023, marks the official launch of the Unitary Patent and Unified Patent Court (UPC) across much of the European Union. With the closure of the three-month "sunrise period," innovators and patent owners will be able to avail themselves of a consolidated system for prosecuting and defending their IP rights. Day one will see operations commence in the 17 EU member states which have ratified the Agreement on a Unified Patent Court (UPCA), including the three most popular patenting locations Germany, France and Italy. A further seven countries have signed the Agreement and have only to deposit their ratifications for it to enter into force in their territory.
The Unitary Patent aims to simplify procedures for attaining widespread patent protection throughout the EU while ensuring the associated cost remains reasonable and accessible. To this end, a European Patent with unitary effect is immediately enforceable in all participating jurisdictions upon grant by the European Patent Office (EPO). Unlike a "classic" European Patent from the EPO, a Unitary Patent does not need to be validated in individual countries, thereby streamlining the process for holders and avoiding further administrative fees for translations and handling.
In parallel, the UPC is exclusively competent to hear all cases relating to Unitary Patents and can be elected for suits involving classic European Patents during the transition period, lasting seven or 14 years.
However, no matter how well-intentioned or beneficial a shakeup is, there will likely be drawbacks, and the UPC is the most significant shakeup to the European patenting framework for decades. For one, a unitarily enforceable patent is also unitarily revokable. This means that the loss of patent rights in the event of a successful opposition action is universal across the UPC's jurisdiction. Hence, opting existing patents out of the UPC system is a valid strategy for business owners and researchers since once a case is brought before the UPC, it cannot be transferred to a national court.
After the end of the transition period in 2030 or 2037, the UPC will have sole jurisdiction over all classic European Patents in participating countries in addition to all Unitary Patents. This is to say, European Patents validated in countries that are not party to the UPCA, such as the United Kingdom, will not be subject to the Court's authority. Similarly, national patent filings and grants will be unaffected by this "third route" to exclusive IP rights.
So ready the Champagne; after much blood, sweat and Brexit, this milestone has been a long time in the making.
Taco Tuesday turns into a trademark food fight
Proponents of Mexican cuisine might argue that there is such a thing as a superabundance of tacos, but fast-food retailer Taco Bell begs to differ, at least on one day of the week. On May 16, the restaurant chain's IP holding company filed petitions with the United States Patent and Trademark Office (USPTO), calling for the cancellation of multiple "Taco Tuesday" trademarks held by two smaller rivals, Taco John's and Gregory's Restaurant & Bar.
Simple, trochaic, alliterative, the phrase rolls off the tongue as easily as a wayward black bean, and so, according to Taco Bell, "should belong to everyone." Of course, beneath all the flour-y language and the hyperbolic assertions that maintaining the trademarks "is like depriving the world of sunshine itself," there rest specific IP grounds for opposition. Namely, the claim that the trademarks have become generic and are thus abandoned.
"Genericide" occurs when a trademark becomes so commonplace as to no longer be associated with a particular business or when it becomes synonymous with a certain product or service. Classic examples of former trademarks that have fallen victim to this strange death include escalator, hovercraft, trampoline and even videotape. In essence, Taco Bell is arguing that the marks for "Taco Tuesday" have become irreplaceable descriptors of weekly promotions held by businesses that do not own the IP in contention.
Taco John's, a Wyoming-based chain, holds the trademark in 49 U.S. states, while Gregory's Restaurant & Bar owns a registration in New Jersey. Though between them they monopolize the IP rights for "Taco Tuesday," both are hugely overshadowed by the worldwide giant Taco Bell, which last year operated 8,218 restaurants in 32 countries.
Will Taco Bell succeed in taking a bite out of the competition? It is telling that the USPTO has already ruled the phrase generic for other registration classes. In 2019, basketball star Lebron James attempted to trademark "Taco Tuesday," primarily for electrical goods. His filing was denied on the grounds the mark "is a commonplace term, message, or expression widely used by a variety of sources that merely conveys an ordinary, familiar, well-recognized concept or sentiment." James' legal team argued the decision was the slam dunk intended from the start, ruling out any future liability resulting from his use of the phrase.
This story demonstrates the ever-present necessity of protecting trademarks not only from infringement and counterfeiting but also dilution and genericization. Who says IP law is never spicy?
OpenAI and Pandora's chatbot
"My worst fears are that we cause significant – we, the field, the technology, the industry – cause significant harm to the world," confessed OpenAI CEO Sam Altman to a U.S. Senate Judiciary Committee hearing on artificial intelligence (AI). "I think if this technology goes wrong, it can go quite wrong."
ChatGPT from OpenAI has set the internet alight since its public release on November 30 last year, and now licks of those flames have made their way into the halls of legislative bodies. Speaking to U.S. senators on May 16, Altman called for urgency in rolling out government regulation of AI, suggesting measures such as the mandatory testing and licensing of new models above a certain capability threshold.
These capabilities could be defined by computing power or, as Altman opined, by their practical applications: the ability to "persuade, manipulate, influence" a person's behavior and beliefs or the capacity to create "novel biological agents."
Also testifying were Gary Marcus, Professor Emeritus at New York University and Christina Montgomery, Chief Privacy and Trust Officer at IBM, who contributed their thoughts on the grave risks to employment, information transparency, elections and copyrights. Marcus and Altman argued that an international body of a scale and purview similar to that of the International Atomic Energy Association (IAEA) would be needed to implement the proper safeguards on the global stage, though the details were naturally left to the imagination (or AI prompts) of diplomats.
On the subject of copyrights in particular, Altman assured Senator Blackburn from Tennessee that content creators, that is to say, originators of copyrights, deserve to receive "significant upside benefit" from the generative technologies while retaining control over how their assets and data are used. However, no agreed-upon economic model for compensating copyright owners exists and will likely not take form in the immediate future.
Curiously, in an interview with CNBC the same day, Tesla CEO and Twitter owner Elon Musk railed against the AI company he helped to establish. Labeling himself a "speciesist" who is "pro human consciousness," Musk expressed skepticism of what he deems OpenAI's shift away from open-source technology and of Microsoft's growing influence over ChatGPT's underlying systems.
Unquestionably, bespoke or revised legislation is needed in jurisdictions worldwide to account for AI-generated content while protecting the IP rights of authors and artists. And for those working in the creative and legal fields, that certainty cannot come soon enough.
Watch this space for future developments!
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