AWA IP Blog deals with all kinds of IP issues – from interesting legal cases and new international IP legislation to information about international IP conferences and other IP events. The IP news is conveyed and commented on by employees at Awapatent.
After more than ten years of effort from Danish IP and industry associations, the industry hopes to soon enjoy legal privilege for patent attorneys before Danish courts.
On 28 February, the Danish Minister for Justice proposed a number of changes to the Danish Administration of Justice Act (AJA), the most import of which relates to legal privilege for patent attorneys.
In the present legal situation in Denmark, a patent attorney may be called as witness, and advice from the attorney may be used as evidence, before Danish courts. The changes proposed by the Minister seek to resolve this issue.
Danish IP and industry associations have made several efforts for more than ten years to gain understanding for the industry’s needs in this context, and I warmly welcome the Minister’s initiative.
As the reader of this will likely know, the US courts apply the discovery procedure where the parties in a court case must present all relevant information to the court. Such information includes, e.g., correspondence with external or internal patent attorneys. However, if the information is under the client attorney privilege, the information is not taken into consideration in the court ruling.
In case of information and advice exchanged with foreign lawyers or advisers, US courts tend to investigate if the foreign jurisdiction applies a legal privilege corresponding to that applied in the US. If this is so, the US court will accept such information and advice as being client attorney privileged before the US court as well.
For many years, the AJA has ensured client attorney privilege for lawyers before the Danish courts and, therefore, likely before US courts as well. No such privilege has existed for patent attorneys. This has sometimes made life challenging for patent attorneys and their clients alike. For example, in any case potentially involving the US jurisdiction, advice has often been given orally only.
Fortunately, the Minister, Mr. Søren Pape Poulsen, has listened to the needs of the industry and the presented suggested changes to the DAJA seem to meet these needs.
More specifically, the Minister has suggested to introduce European Patent Attorneys in the section of the AJA which concerns the legal privilege of lawyers today. If the Danish parliament votes in favour of the changes to the AJA, companies and their EPA advisors will enjoy legal privilege at the same level as lawyers today. This will put EPAs in a similar position before Danish courts as patent attorneys in other European states that have already dealt with this issue, including Germany, Sweden and Finland.
The proposed changes to the AJA will now enter into the parliament’s obligatory three readings before the vote is cast.
The Minister proposes that the changes enter into force on 1 July, 2018.
Award-winning start-up KUBO Robotics helps teach young children the concept of coding with their interactive robot.
A student project
When entrepreneurs Tommy Otzen and Daniel Lindegaard started their Master project in Learning and Experience Technologies at the University of Southern Denmark in 2014, they didn’t have any specific agenda nor goal – only to find out how children could learn about robots and coding in a fun way.
After working together on several technology projects involving testing students, Tommy and Daniel sat down for a brainstorming session on how to teach children coding without using a screen and without any language barriers. What they came up with was the educational robot Kubo.
A year before graduation, the duo realised they had been working on a highly relevant innovation.
“Everybody was talking about the importance of kids learning to code. Schools were asking for solutions on how to teach their pupils the technology behind coding,” says Tommy Otzen, CEO and Co-founder of Kubo.
“Adding to that, we both had an interest in entrepreneurship and the start-up world. One could say it was a match made in heaven.”
Today, children spend on average seven to eight hours per day consuming digital content, everything from music and computer games to Netflix. Although it’s a huge part of their everyday lives, most kids don’t understand how the technology behind it all works. For them, it is like magic how the music comes out of their earphones or how the picture appears on the screen.
At the same time, it is estimated that in 2034, a total of 47% of the jobs we know today will be automated by robots or Artificial Intelligence (AI).
“For kids to succeed in this new world, they need a basic understanding of how this technology works and it all starts with the software. We want to help teach them how to think and create things using technology.
“Coding will be an essential skill going forward. This is a trend we see all over the world now. In Swedish schools coding will become a mandatory school subject in 2018.
“We must prepare the children for a future which is already here,” says Tommy.
Understanding the principles behind the technology which surrounds us makes it easier to adapt to our changing world, argues Tommy.
“When my grandmother turned 97, she received a robotic hoover. She was terrified of using it as she didn’t understand how it worked. She thought it drove on its own accord and might knock her over. It wasn’t until she sat down to understand the principles behind the technology – that this was a robot carrying out commands from a human being and therefore had human ethics – that she felt confident enough to start using it around the house.
This is what we want to do at KUBO Robotics, too. We want kids to realise that robot are merely tools to help make certain jobs easier; just like an extension of our own capabilities.”
We must prepare the children for a future which is already here.
With their educational background in learning and experiencing technology, Tommy and Daniel possess a deep understanding of the cognitive way the brain works.
“We have combined educational theories with the development of technology. As human beings, we gain information in three different ways. Firstly, language based learning; i.e. talking, reading and writing. This is the most complex way of learning. Secondly, image based learning which is symbols, like a traffic light or a stop sign. The third way of learning, which is how very young children pick up on things, is activity based. They learn by interacting with things. It is essentially learning by doing.
“Kids learn more about the function of water by jumping in a puddle, than they do by looking at an image of water or listening to a text being read aloud”.
The entrepreneurs received good feedback on a prototype of their robot, which was initially tested on first to tenth graders. The robot – named Kubo – introduces children to the concept of coding by teaching them sequential thinking.
By putting the body and head together, Kubo starts. The robot comes with different tiles which all have different meanings; e.g. turn left, turn right, move forward. The child puts the tiles in a certain sequence and the robot will follow the instructions by walking across the path made out for it. By using special maps, the kids can also build their own solutions to get from point A to point B by creating a path for Kubo.
“This is a universal language. No matter what language the children speak, they can easily assemble and start using Kubo.”
IP as a building block
Despite only having started a full-time business in July 2016, Tommy and Daniel have already ran a successful crowdfunding campaign and sold their robot in 39 countries around the world. Schools are their primary target market.
The team accredits their success partly to a solid IP strategy, which has been a cornerstone in their business model and an important aspect when pitching to investors.
“From early on, we knew that we wanted to go global. We understood that we needed funding from investors and having a patent pending demonstrates that you’ve done your groundwork well enough to know that nobody else is doing the same thing. It gives you a good case for investors. They know that you have protected IP so you can’t get copied, or if you do, you can sue them. When you do venture, you might have a go at selling your company at some point and what you sell is basically your IP rights. We had this in mind from the get-go.
“We did a background search to make sure nobody was doing the same thing when we founded our company. Just imagine if we had spent a year of time and investments into this and then realised that we didn’t have the rights to do it – it would have been a catastrophe,” says Tommy.
“If you don’t have the IP rights, then how are you going to protect your brand?”
Kubo currently has an international (PCT) patent application, a European patent application pending and three EU trademark registrations, which will be followed by patent applications targeting China, Singapore, Russia, US and Chile – to mentioned but a few. The start-up has been consulted by Johanne Mørk Ahrensbach and Troels Peter Rørdam at Awapatent’s Copenhagen office for their IP matters.
Back to the future
In 2017, Kubo won in the category ‘Best Newcomer’ in the Nordic countries at the prestigious Global Start-up Awards. The victory is taking the team all the way to China for the global awards ceremony at the end of the year.
By preparing children for the future, Kubo are preparing themselves too.
“We are looking into expanding into Europe and US in 2018. In 2019 we want to go global. Our goal is to be the number one choice of educational robots for primary school and I think we are well on our way,” concludes Tommy.
For more information on Kubo, please visit their website kubo-robot.com
For some British IP professionals all is about to change with regards to European intellectual property practice – but for others nothing will change at all.
At a meeting between the EPO and the Chartered Institute of Patent Attorneys (CIPA) in late January, it was confirmed that European patent attorneys who are based in the UK will be able to continue to represent applicants before the EPO. This means that ‘Brexit’ will not have any impact whatsoever on the membership of the UK in the European Patent Organisation, thus maintaining the number of member states at 38.
On the other hand, in the absence of any other agreements, the European Union Intellectual Property Office recently issued a notice to stakeholders with regards to the regulations concerning the European Union Trademarks and the Community Designs, in which the UK will be considered a ’third country‘ from midnight on 30 March, 2019. This is due to all Union primary and secondary law ceasing to apply to the United Kingdom from this withdrawal date. By a third country they are referring to a country which is not a member of the EU.
In this notice the EUIPO declares that ’Preparing for the withdrawal is not just a matter for EU and national authorities but also for private parties.’
From the withdrawal date all EU trademarks and registered Community designs as well as unregistered Community designs made available to the public before the withdrawal date will continue to be valid in the remaining 27 EU member states, but will no longer have effect in the United Kingdom.
All existing seniority claims in EU trademarks. based on national trademark rights in the United Kingdom. will also cease to have an effect in the EU as from the withdrawal date.
It must also be noted that the holders of international registrations of trademarks and designs having designated the European Union before the withdrawal date pursuant to the Madrid system and the Hague system, should also consider that, those international registrations will also no longer have effect in the United Kingdom.
The EUIPO also makes a point regarding the fact that natural or legal persons that are domiciled or have a seat in the United Kingdom only will have to be represented before the European Union Intellectual Property Office in accordance with Article 120(1) of Regulation (EU) 2017/1001 (on the European Union trademark) and Article 78(1) of the Regulation (EC) No 6/2002 (on Community designs) in all proceedings provided for in those two Regulations, other than the filing of an application for an EU trademark or an application for a registered Community design.
It should also be noted that negotiations are ongoing with the United Kingdom to hopefully establish a withdrawal agreement, but there is still no further information regarding how this withdrawal agreement will apply.
The Winter Olympic Games in PyeongChang, South Korea, have just started. For two weeks athletes around the world will do their very best to represent their countries.
But what about intellectual property at the games? The Olympic rings are well-known to almost everyone on this planet, i.e. the five interlocked rings with colours in blue, yellow, black, green and red on a white field. The five rings are said to represent the union of the ‘five continents’ of the world and the meeting of athletes from across the world at the Olympic Games.
The International Olympic Committee (IOC) is very protective of this symbol, and in many jurisdictions they have the right to any interlocking of five rings, although there are some national exceptions.
For the 2018 Winterolympics in PyeongChang, the IOC has naturally protected the wordmark PYEONGCHANG 2018 as well as the figurative mark comprising the interlocking rings.
The arranging Korean Olympic committee is allowed to create and protect their own trademarks, which has been done, for instance for the official symbol for the games (with the same colours as the Olympic rings), and the two mascots Soohorang and Bandabi, used for the Winter Olympics and Paralympics respectively. The mascots are used to represent the Olympics games everywhere.
Interestingly enough, the rights to the combination of the PyeongChang official symbol and the Olympic rings as well the colour scheme, is owned by the IOC, once again demonstrating their protective instincts.
Over the past ten years, Linköping based XMReality has gone from a small research company to a Software-as-a-service enterprise by offering their customers a high tech augmented reality solution.
Through the eyes of an expert
What do you do when the machine you are working with doesn’t work and you are alone? Don’t you wish somebody would just tell you what to do and how to fix it?
With XMReality Remote Guidance™, you are never really on your own. The solution means having an expert standing right beside you in situations when you need guidance and direction. As Futura, one of XMReality’s customers, puts it: ‘you can literally see through your customer’s eyes. This solution breaks down the wall between you and your customer’. Thanks to its augmented reality technology, XMReality can offer remote guidance through streaming video from your location to the expert in real time using a mobile device, e.g. smart glasses.
As opposed to virtual reality, where everything you see is fictional, is augmented reality a way of visualising digital information through reality. If you enter a room, you still see the room as it looks in reality but you might also see a digital thermometer displaying the temperature in the room and adding value to your reality.
For anyone who has played Pokémon Go, this is a familiar concept. Through the same technique, XMReality uses augmented reality to impose gestures onto the user’s view of the real world.
A journey of endurance
In 2007, XMReality was founded by researchers at FOI (Swedish Defence Research Agency). One of their very first projects was to find a way of disarming a mine in an efficient way through remote guidance. The original motivation behind the project was to avoid sending people to war zones but they quickly realised the system could be implemented for the reparation of vehicles and machinery.
The experience of working in extreme conditions has laid a strong foundation for the company.
“We come from a background working in the worst circumstances possible,” says Johan Castevall, CEO at XMReality since January 2015.
“We have worked with patchy internet connection, poor light and difficult weather conditions – all under extreme time pressure. This is something we bring with us on our journey going forward.”
XMReality’s focus is now on the industrial service providers with software as their core business
“Previously, we offered our customers our own hardware solution because we were so early that there really weren’t any efficient smart glasses available. But now that market has taken off, and there are several vendors offering high quality glasses, e.g. ODG. The evolution of the smart phones and tablets has made it possible to use our software on such devices as well,” says Johan.
A couple of years ago, the development accelerated further to separate the hardware from the software.
Today, XMReality Remote Guidance is hardware agnostic and can be used on any Android, iOS, or Windows device. The company is working with the manufacturer of smart glasses although they also offer their own models.
It was a win-win solution for a both financial aspect and in terms of respecting personal life. This is not just about money, it is about people as well.
XMReality’s willingness to listen to the demand of their market and efforts into product development seems to be paying off. Transport giant Bombardier is one of their content clients.
A situation occurred when a train had broken down and an expert was needed at the scene. Only, the broken down train was in the United Kingdom and the expert had just gone on paternity leave in Stockholm. As he didn’t want to leave his family to travel to the UK, Bombardier sent the smart glasses to the UK and the following day the Stockholm based expert (and new father) was able to guide his British colleagues via XMReality. In addition to avoid being forced to leave his family behind, the solution meant that Bombardier saved a total of 20 000 SEK.
“It was a win-win solution for a both financial aspect and in terms of respecting personal life. This is not just about money, it is about people as well,” says Johan.
Another benefit of XMReality’s software is less impact on the environment, as the remote guidance solution helps avoid unnecessary travelling.
In addition, older workers with unique competences can work part-time from home and share their knowledge thanks to XMReality. Younger people, who might have a passion for gaming, get the opportunity to work with high tech solutions in service professions.
“It can help even out generation gaps in different industries,” says Johan.
The vast majority of XMReality’s clients is currently in field service and aftermarket service, but Johan sees large potential in expanding their offer to other industries and uses.
Industrial companies are looking for digital solutions to improve their service offer and increase their revenue. XMReality’s clients can offer a solution to their customers as added value to their existing service offer.
One example of this is Bosch Rexroth. They offer the remote guidance solution with their own branding, and sell it to their customers who can download the app and receive real time instructions from Bosch’s experts.
XMReality works with Awapatent on their IP strategy as a crucial part of their business model.
“Our IP strategy is mostly preventative at this stage: if something comes up, we know how to deal with it in an efficient and active way. We are looking to expand into international markets and Awapatent has been an excellent advisor to help us spot business opportunities from an IP perspective.”
Since April 2017, XMReality is listed on Nasdaq. The company has investors to ensure growth and help spreading their business globally. As for the future, Johan is optimistic.
“Augmented reality is exciting and very ‘hot’ right now. People show great interest in our product and we are happy to be working with some of the biggest companies out there, like Bosch and Siemens.”
The CRISPR system has revolutionised the gene technology field, opening up for a multitude of genetic engineering possibilities and harbouring huge potential for the treatment of diseases. In particular, one version of the system known as CRISPR/Cas9, has been modified to edit genomes. It is commonly called a “gene scissor”, i.e. it can cut a cell’s genome at a specific location, such that genes can be removed and/or new genes inserted.
The CRISPR systems are covered by several patents and patent applications filed by different applicants, and are currently owned by the Broad Institute at MIT, the Max-Planck Institute in Berlin, University of California and MilliporeSigma. Early last year, the Broad Institute won a first dispute, which concerned fundamental patent rights in the US, as previously reported here. However, last week on this side of the ocean, the pendulum swung the other way and Broad suffered a serious set-back when one of the core patents was revoked by the European Patent Office (EPO).
The reason for the decision may be found in that the EPO deemed the priority claim of the patent to be invalid, a decision in line with other decisions concerning the same matter, but leaving Broad in a situation where they could not establish that their researchers were in fact the first to use CRISPR in eukaryotes. According to Broad’s own press release, they intend to appeal the decision on the grounds that the EPO’s procedures are incompatible with the fundamental principles of the Paris Convention. Read more here.
The priority issue relates to the universal problem of mentioning the right inventors. At least ten more patents from Broad have been challenged, many of which present the same issue of failing to mention one or more inventors listed in the documents filed to establish priority.
A new minister of IP has been appointed in the UK, and despite the clear efforts from the UK parliament to go through with the divorce from EU, there still seems to be an intention to ratify the UPC agreement. In the UK, only one legislative step remains before the UK can ratify the UPC agreement. This last step is the Privy Council’s approval of one draft Statutory Instrument (the Unified Patent Court (Immunities and Privileges) Order 2017). The UK IPO must then request the Foreign and Commonwealth Office to take the final step for the ratification to come into effect, meaning that the Foreign Secretary must deposit a formal letter with the EU Council’s General Secretariat where it is stated the UK agrees to be bound by the UPC Agreement and the UPC’s Protocol on Privileges and Immunities.
As this could all be completed quite soon, that leaves Germany as the final country required for the UPCA to enter into force, where the constitutional complaint has put the ratification process on hold.
The actual content of the constitutional complaint in Germany has still not been fully revealed. Sources in Germany, such as the highly regarded JUVE, have recently reported that a number of organisations have been asked by the German court (BverfG) to provide their opinions and through these opinions further details have become disclosed. Most of these organisations seem recommend that the court dismiss the complaint as inadmissible, and if it is admitted, that the claims be declared unfounded. Some sources even say that a hearing regarding the admissibility is scheduled for April, but the next steps to be taken by the BverfG have not been confirmed.
However, if these rumours are true, and the court decides to dismiss the complaint as inadmissible, there is still some light at the end of the tunnel for the UPC opening up during 2018.
Further adding to these seemingly good news, Latvia deposited its instrument of ratification of the Unified Patent Court Agreement (UPCA) with the Council’s General Secretariat on 11 January 2018. This means that Latvia becomes the 15th country to ratify, joining Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Italy, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, and Sweden.
Reflections on the Court of Justice of the European Union’s interpretation of Article 17.2 of the SPC Regulation
As previously addressed in a Newsflash from Awapatent, and in two previous entries, the Swedish Patent and Market Appeal Court handed down eight decisions on 4 October 2017, in appeal cases regarding re-examination of SPC term. The decisions have been appealed, but the Supreme Court has not yet decided on whether to allow leave to appeal. Meanwhile, the Court of Justice of the European Union (CJEU) has issued a preliminary ruling on the interpretation of Article 18 of the SPC Regulation 469/2009 and of Article 17.2 of the SPC Regulation 1610/96 (the later which is also applicable to SPC Regulation 469/2009). The CJEU case is referred to as Incyte (C-492/16).
The underlying legal cause to Incyte is the same as the legal cause behind the eight cases in Sweden, all being related to Seattle Genetics (C-471/14) on how to calculate the SPC term. In Seattle Genetics, the CJEU held that the ‘date of the first authorisation to place the product on the market in the [European Union]’ within the meaning of Article 13.1 SPC Regulation 469/2009, is the date on which notification of the decision granting marketing authorisation was given to the addressee of the decision. Up until that point in time, many patent offices around the EU, if not most, had calculated the SPC term on the date of grant of the marketing authorisation, and patentees have since requested changes to previously issued SPC terms.
The legal questions of the cases which are before the two courts are not the same, and it is therefore not quite fair to compare the two decisions. However, as the patentees’ underlying requests are the same – i.e. a recalculation of the SPC term to meet the correct application of Article 13.1 – one may still find a comparison interesting. Below are three points of the decisions to which the courts had different views.
Does the national authority decide the SPC term?
In its decisions, the Patent and Market Appeal Court tried whether the decision to grant SPC, made by the national authority (PRV as regards Sweden), includes setting the term of the SPC. Although the SPC Regulation 469/2009 does not expressively say that the relevant authority shall decide on the term of the SPC, the Patent and Market Appeal Court said, it stipulates that the authority shall publish information on the term of the certificate. Further, Article 17.2 allows for appeal of the decision under certain circumstances, to correct the term of the SPC. The national authority must therefore decide on the term of the SPC, and PRV has done so. Consequently, the expiration date of the SPC is a part of PRV’s decision.
In Incyte, the CJEU re-read Article 13.1 of the SPC Regulation and came to the opposite conclusion. The duration during which the SPC granted “shall take effect” is wholly determined by the application of the detailed criteria laid down by that provision, and the relevant authority enjoys no degree of discretion in that regard. The SPC is to lapse on the date given in Article 13 and not on a date to be determined by the authority which grants the certificate.
In its substantially reasoned decision on Swedish administrative law, the Patent and Market Appeal Court first considered the character of SPC applications. The Patent and Market Court had taken a view that decisions on SPC applications are final at the end of the appeal term, as they affect third party interests in a way that make them similar to civil disputes. The Patent and Market Appeal Court disagreed, and said that SPC applications are one-party cases which may be re-examined within the administrative procedure. A balance of interests must however be made, where the interest of a substantially correct decision shall be weighed against the interest of legal certainty for third parties. When the patent has expired and the SPC has entered into force, the Court reasoned, it must be considered that generic companies may have complied with the decision and acted with respect to the assigned expiry date. In the interest of foreseeability, an entry into force of an SPC therefore speaks against a rectification of the expiry date. Before such time, the interest of the patentee to receive a longer SPC duration generally prevails.
The CJEU’s decision holds a different approach to the issue of legal certainty and balancing of interests. The Court says that the case at hand does not concern whether the national administrative body in question must review its decision, but whether that body must rectify the duration of the certificate. The balance between the requirement for legal certainty and the requirement for legality under EU law is, in such circumstances, different from matters concerning review of an administrative decision that has become final [to take account of the interpretation of a relevant provision of EU law which the Court has given subsequently]. A change, as requested by Incyte on the basis of Seattle Genetics is by its nature less capable of affecting legal certainty than the more substantive changes which require a review.
Article 17.2 of the SPC Regulation 1610/96
The Patent and Market Appeal Court found that the wording of Article 17.2 in SPC Regulation 1610/96 does not support an interpretation other than a right to appeal a decision of an authority where the date of the first marketing authorisation is incorrect. Neither does the preamble of the SPC Regulation or any decision from the CJEU imply that the objective of Article 17.2 is to provide for administrative re-examination, review, or other extraordinary remedy to change a decision which is final.
The question answered by the CJEU in Incyte had a slightly different focus, namely whether the date of the first marketing authorisation was incorrect within the meaning of Article 17.2. The Court concludes that yes, the date of the first marketing authorisation as stated in an application for an SPC is incorrect where the date led to a method for calculating the duration of the certificate which does not comply with the requirements of Article 13(1) after Seattle Genetics. Considering that there is no room for discretion of the national authority under Article 13 to decide the SPC term, and that rectification under the circumstances is not such as to affect legal certainty, the Court concludes that the holder of a supplementary protection certificate may bring an appeal for rectification of the duration stated in the certificate, if that certificate has not expired.
Summary and commentary
There now appears to be a final and very comprehensive route for requesting recalculation of SPCs after Seattle Genetics. Although it would be interesting to get the Supreme Court’s final word on the balance of interests for SPC applications, the main interest of the SPC holders has been satisfied by the Incyte judgement. Unfortunately, the CJEU didn’t elaborate on why the certificate must not be expired for an appeal for rectification to be allowed. Considering that the CJEU firmly says that the expiration of the SPC term is a function of Article 14 and Article 13, without subject to any discretion of the patent authority, and that the matter concerns only a rectification and not a review of the case, there is still an opening for questions.
The most obvious unclarity is whether a rectification has any implication on the actual term of the SPC, or if it would be possible to enforce a wrongfully calculated SPC to the full extent of the “Seattle Genetics term” without a formal rectification of the term. But for now, and at last, the burning questions on recalculation seem to have been answered.
According to a new study Patents and the Fourth Industrial Revolution (4IR), conducted by the EPO the number of filed patent applications that relate to IoT, i.e. smart connected objects, are increasing rapidly.
Over the last three years the increase amounts to 54%. Together with Handelsblatt Research Institute, the EPO has identified almost 50 000 applications in the IoT field, which have been filed until the end of 2016.
Three relevant technology sectors have been identified; the core technologies in the Information and Communications Technology (ICT) field. These make it possible to create connected objects. Then there are the enabling technologies that complement core technologies, e.g. Artificial intelligence (AI) and user interfaces. The third sector is where the technologies are applied, i.e. for instance in vehicles and homes.
The study also reveals that during 2016 more than 5000 patent applications relating to autonomous objects, such as self-driving cars, were filed.
Listed among the 25 top applicants within the 4IR technologies are companies such as Samsung, LG, Sony, GE, Google, Apple and Toyota. This means that the patent applications originate from different parts of the world, where the Asian countries are clearly dominating with 37% of the applications originating from either Japan, South Korea or China, while 29% originate from European countries, and 25% from the US. In Europe the majority of applicants is based in Germany, France or Great Britain, but as clear evidence of the Swedish IoT revolution shows, Sweden positions itself in an honourable 4th place. The share of domestic inventions is for example 57% for Ericsson.
One interesting conclusion that can also be drawn from the study is that the application domain “Personal”, i.e. inventions relating to healthcare, is one of the fastest growing sectors of 4IR. Digital technologies can be used to improve health quality by providing smart healthcare solutions. Smart health elements can be used in various medical fields, such as real-time monitoring; using sensors and mobile devices and AI, or telemedicine; facilitating interactive remote contact and monitoring between medical staff and patients. Smart health care also entails block chain technology as a basis for comprehensive electronic health record, as well as computer aided surgery, which for instance can be image guided or robot-based surgery.
Smart wearables focusing on preventive measures are also a part of smart health, where collection of data from a user, e.g. related to physical movement or hearth rate, can be used to improve fitness and reduce risk of stress related symptoms. Examples of Swedish companies in this field are Lifee; who have created a wearable device for children to monitor and encourage physical activity and Linkura; a company that focuses on detecting individuals prone to negative stress.
The Swedish Patent and Market Court (PMD) announced an interesting judgment concerning the Board of Directors’ personal liability for patent infringement in October this year.
The company Power Tools sued the company Royex, its chairman and president for patent infringement of cartridges for cracking stones. PMD found that the product “Royex Generation II” constitutes patent infringement. The PMD specifically examined what is required for a company representative, and not just the company as such, to be considered to have infringed on a patent. Practice shows, according to the PMD, that an individual-level test is required of what can be added to each other and a relatively comprehensive investigation as to what actions the individual has done.
According to the PMD, there is no support for deputies and ownership in a limited liability company by itself which is sufficient for anyone to be considered to have infringed on intellectual property rights when the infringement occurs within the framework of the company’s operations. The person must himself have taken the actions that constitute the intrusion.
The PMD found that the Chairman of the Board had taken decisions that later led Royex to offer and sell the Royex Generation II product to its customers. This means, according to the PMD, that the Chairman of the Board, with his advice and deeds promoted the company’s actions in a way that contributed to patent infringement. PMD continued with a comparison with the so-called Pirate Bay, ruling that a representative of a company may be responsible for paying compensation and damages the in case of patent infringement if the representative has contributed to the intrusion as a result of intent or negligence. According to the PMD, the investigation in this case did not support the Chairman of the Board knowing or being suspected of involvement in patent infringement. There was also no reason to believe that he would have acted in the same way if he had known or suspected it. Therefore, PMD did not consider that the Chairman of the Board acted intentionally.
The PMD also tried if the Chairman had acted negligently. The court referred to the fact that, in practice and law enforcement, a diligence standard had been imposed on intellectual property infringement. The person who deals with products that may be protected by copyright has, for example, a duty of inquiry regarding the goods he purchases. This duty is adapted to product range, supplier and the risk of copyright infringement. The same applies to those who deal with goods that may be counterfeit. PMD therefore found that the manufacturer and distributor of products in a patented area may be expected to stay informed of the patent portfolio in the area. This is especially true in markets with few players and where a company’s main competitor has a patent.
What is applicable for a company should, according to the PMD, also apply to the professional leader of the company. The Chairman of the Board had taken decisions that led Royex to offer and sell the Royex Generation II product. Therefore, he had reason to stay informed. The Chairman of the Board had acted negligently, and in solidarity with Royex, he had to pay reasonable compensation as well as compensation for the further damage that Power Tools has suffered due to the patent infringement. PMD also announced a prohibition of SEK 1 million against the board member.
The judgment implies an interesting development of practices regarding directors’ personal liability in the event of infringement of intellectual property rights. The verdict should provide all boards, at least boards of small and medium-sized companies, with a reason to review liability for patent infringement in connection with product launches and the like and to keep these issues up to date.