Giles Parsons on LinkedIn: Bonita Trimmer, Nirmal Trivedy and I have written an article for Practical… (2024)

Emma Capper and I spoke to Annalisa Barbieri at the Guardian about when an employee will own ideas that they shared during employment, and what one can do if one has left a job as a result of bullying. It's currently the second most read article in the Lifestyle section, and you can read it too here: https://lnkd.in/eZv8W_Gf

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It’s not very Marie Kondo. But for those of you with an unquenchable thirst for trade marks, there is an interesting bottle for sale in Bonhams on Thursday. I don’t know what counts as the first trade mark. Articles on WIPO's website say there is prehistoric evidence that cattle were branded by their owners, but I am not sure that counts; there the sign appears to have been used to show ownership rather than to denote trade origin. Was it the first time someone signs their name? There’s loads of that on signed pottery; for example, 14 signed works of pottery survive signed by Exekias from the 6th Century BC. And there are others from Egypt and Rome and probably elsewhere. But if a trade mark means something mass-applied to something mass-produced, it might be something like this:https://lnkd.in/eKEvususThis is a Roman-era flask which was made by blowing glass into a reusable mould. On its base is a raised 6-petalled rosette and the inscription 'MARKOS', which might refer to the glass-maker or shop proprietor and looks like a trade mark to me. (A “MARKOS” mark also has some neat symmetry to it). Or, for the same price, after Buyer’s Premium and VAT, you could get about 2,000 bottles of Bass Trademark No 1: https://lnkd.in/e4pepK8Y

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There’s a really interesting court hearing today and tomorrow in the Court of Appeal: Comptroller-General of Patents v Emotional Perception is a case about patentability of AI.The hearing will be live on YouTube today (14 May) from 2pm, and tomorrow (15 May). The link is here: https://lnkd.in/gKX6m_wyThe decision from Sir Anthony Mann under appeal is here: https://lnkd.in/gDPhpepm. Mann previously decided Gemstar, another case about software patentability. At first instance in Emotional Perception, Sir Anthony Mann overturned the IPO’s decision. He found that a neural network is not excluded as such and that the claimed invention was technical – “there is produced a file with… attributes…. A technical thing is actually produced”. If the decision is upheld, it will make the UK one of the most AI friendly jurisdictions. However, I think there is a higher chance than normal that this will be overturned. The court hearing the Appeal includes two of the UK’s leading patent judges – Lord Justice Arnold and Lord Justice Birss. They have sat on nineteen cases together in the last 3 years. Judgment has normally been quick. In the six IP cases they sat on in in 2023 and 2024, all but one of the judgments has been handed down within a month of the hearing; only Optis v Apple EWCA Civ 758 last summer ran to 7 weeks. Lord Justice Arnold has given the leading judgment in four of those. In two of those three cases (Lidl v Tesco and AstraZeneca v Tesaro), Birss LJ has provided short separate though broadly concurring judgments. In one, Optis, Birss LJ gave a dissenting judgment, and in the other decision, Iconix, he simply concurred with Arnold LJ’s judgment. In the other two judgments, Birss LJ gave the leading judgment, and Arnold LJ concurred. In 2021 they both heard another case involving the Comptroller, Thaler, about whether AI can be named as an inventor of a patent. Birss LJ would have allowed that appeal, but Arnold LJ and Lady Justice Laing disagreed and dismissed it. They were upheld by the Supreme Court in December. So – although most appeals are dismissed, there is a very reasonable chance that this appeal will be allowed. But we are in new territory. If the judgment is upheld and the appeal dismissed, it will have a significant impact on UK and potentially international patent law. And we can expect the judgment reasonably soon.Image from Midjourney

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Supremacy of EU Law has gone. Most IP cases involve EU law, and the REUL Act now makes it much easier for English courts to depart from EU precedent. I expect that, for a while at least, this will change how lawyers frame their advice and run cases; and I am very much looking forward to hearing Nick Zweck's views on all of this on 7 February. There is a link below to sign up if you are interested

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The Court of Appeal’s decision in Industrial Cleaning Equipment v Intelligent Cleaning Equipment - https://lnkd.in/gPqUenhV- is really important, even though the decision is about an obscure point in trade mark law. It's important because the Court of Appeal chose to depart from binding CJEU authority. This is relevant not just for IP lawyers, but for anyone considering whether the UK courts will depart from existing EU Law. The case was about “statutory acquiescence”. A trade mark owner cannot sue another trade mark owner for infringement if the first party has “acquiesced” to the use of the second party’s registered mark for five years. The question before the court was: when does the clock start running for the purpose of acquiescence – is it from when the first party knew about the second party’s use, or when is when the first party knew about that use and that the second party had a registered trade mark? The CJEU said in Budvar that time runs from knowledge of use and the registration. The Court of Appeal have departed from that judgment – time runs from knowledge of the use provided the mark is in fact registered. Knowledge of the registration is not required.Is this the first time that the UK courts have departed from CJEU precedent using the powers from the 2018 EU Withdrawal Act? I am certainly not aware of another IP case. The case contrasts with TuneIn, a 2021 Court of Appeal decision (https://lnkd.in/gbiKNUS4), where Lord Justice Arnold declined to depart from CJEU case law. He discussed the six reasons behind that in a recent UCL talk - https://lnkd.in/gpfZ-xEX. I think there are two key differences between the cases. Firstly, unlike in TuneIn, departing from Budvar would not create legal uncertainty because the General Court was not consistently applying the CJEU’s finding from Budvar anyway. Secondly, Lord Justice Arnold believed that the CJEU had just got Budvar wrong. Once the Retained EU Law Act is in fully in force (and that will apparently be January), it will be easier for UK courts to depart from EU law. This decision, together with the six factors from TuneIn, gives the best guide we have at the moment as to when the courts will consider departing. There are a lot of topics where English judges may feel that CJEU jurisprudence could be improved, and this is going to give rise to more appeals on points of law until the appellate courts state their position.

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A decision from the High Court - Emotional Perception [2023] EWHC 2948 (Ch)https://lnkd.in/gDPhpepm - appears to make it easier to patent AI software. Software "as such" is not patentable, but it can be patentable if there is an invention which makes a technical contribution to the art. In Emotional Perception, Sir Anthony Mann, sitting in the High Court, held that a trained neural net can be a “technical effect”. Patent Office’s guidance, released yesterday, now says that “patent examiners should not object to inventions involving [neural networks] under the “program for a computer” exclusion.”The Patent Office's guidance is below. There are still other challenges, but it looks like patenting AI in the UK is now a bit easier. Examination of patent applications involving artificial neural networks (ANN) - GOV.UK (www.gov.uk)

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An interesting post from Ed Newton-Rex, now ex-Stability, who disagrees with Stability’s views on what amounts to “fair use”. Stability says that training AIs is fair use, and Mr Newton-Rex says this would not be fair to the authors of the works used for the training.There is a problem around training AI on copyright works; unless there is a global approach, AIs will always be trained in the most permissive jurisdictions.We obviously need a system which balances fairness for creators with an environment that allows AI to be developed. (The UKIPO have an ongoing consultation about this to develop a code of practice, but this will only of course apply in the UK). And whilst saying this is easy, agreeing it and implementing it in way that works globally will be difficult.https://lnkd.in/e--4X8uk

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Great to write with Richard Nicholas and Loren Hodgetts for OneTrust DataGuidance on Deepfakes - https://lnkd.in/evCyjc6H

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I enjoyed writing an article about the impact generative AI will have on retail with Faye McConnell and Loren Hodgetts (I particularly enjoyed making the pictures). It’s published in British Retail Consortium magazine The Retailer. #ai #retail

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