IP@OC Update | April 2017

Written on 11 Apr 2017

Welcome to the latest edition of Osborne Clarke’s IP@OC Update.

An area of tech that seems to be constantly in the headlines is driverless cars. In this edition we take a look at some of the issues that surround driverless cars, or Connected Autonomous Vehicles, and some of the IP challenges that manufacturers of CAVs are likely to face. Another potential disruptive technology which is making rapid progress is 3D printing, which similarly faces a number of IP challenges. Lorna Brazell identifies which IP rights are likely to come into play and what manufacturers might want to start thinking about.

Another headline-hitting development last month was that the UK served notice Article 50 and thus triggered the start of the UK’s exit from the EU. This provided us with a good opportunity to review what the implications of Brexit might be for IP. Also in this edition we examine a proposed pan-European right, the press publishers’ right, and consider the controversies surrounding this – as well as commenting on how equivalent rights already introduced in Spain and Germany have fared. We also cover a key copyright case in Spain as well as the recent UK decision on Arrow declarations.

Finally, Osborne Clarke are delighted to welcome Xavier Pican, Laurène Zaggia, Margaux Hammer and Océane Gillet to our IP/IT team in our Paris office. Xavier and his team have worked on a wide range of legal issues linked to innovative technologies, with a particular focus on technology transfers and smart cities, and so continue to strengthen Osborne Clarke’s International IP expertise.

We hope you enjoy these articles. If you would like to discuss any of the issues raised in this Update, please do get in touch with the author of the article or your usual Osborne Clarke contact.

Brexit: implications for IP

Notice under Article 50 has now been served and the government has published its Great Repeal Bill White Paper, setting out how it intends to convert the “acquis” of accumulated EU-based law into national legislation. Our Brexit feature page includes articles looking at what Brexit could mean for IP, along with a number of other areas of law such as: dispute resolution, commercial, consumer protection, immigration and trade law.

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EU copyright reforms: is it the end for the much-hyped press publishers’ right?

The way in which we obtain our news has changed fundamentally in recent years. A quick glance along the bus or train carriage on your daily commute will confirm that fewer people read print newspapers and more people are turning to their tablets and smartphones to get their current affairs fix. It is for this reason that press publishers were behind the proposals for a new EU press publishers’ right.

They had high hopes that this would help combat the problems they were suffering as a result of what they termed “substitution” – where platforms such as Google News provide their users with a list or feed of news results without those readers “clicking through” to the actual article itself. However, these hopes might now have been dashed due to a recent review of the draft Copyright Directive by the rapporteur for the Directive, Therese Comodini Cachia, which proposes a right which is significantly more limited in scope than originally anticipated.

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Arrow declarations: the English courts devise an end-run for technology users

Today, successful products are frequently protected by a number of patents (as well, potentially, as other intellectual property). Frequently, a product is initially patented in the form in which it was originally launched, but then later modifications and improvements are also the subject of further patent applications. Prosecution of those applications can take years to reach grant or rejection, and may even then be caught up in European opposition or US inter partes review proceedings.

Faced with all of this, potential producers of related products can face a nigh-on impossible task in attempting to determine whether their own version will or will not infringe some yet-to-be examined application. Fortunately for those facing these difficulties, the English courts have developed more flexible remedies that can assist, such as Arrow declarations.

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3D printing: IP panicking?

Much excitement has been generated by the potential for users of 3D printers to infringe IP rights of all kinds. A patent or design right over a product will not prevent it being printed; if the scanned original includes a company logo, that is likely to turn up in the printed copy. And copyright, if it subsists in the object, is likely to be honoured in the breach just as it is for digital music.

So how will the current suite of IP rights, and their owners, stand up to the challenge of 3D printed objects? And what can manufacturers start doing about it now?

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Driving innovation: intellectual property in connected and autonomous vehicles

In terms of capturing the imagination of the general public, the idea of cars that drive themselves ranks up there with Back to the Future’s hover boards and self-lacing shoes, and Bruce Willis’ flying taxi in The Fifth Element. Howver, CAVs raise a wide range of issues, both legal (such as regulation, liability, privacy and insurance) and social (such as ethics and safety). One legal issue expected to attract attention is the role of intellectual property rights in enabling industry players to establish, and thereafter maintain, a position within this emerging, and potentially very lucrative, market.

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Spanish Court sees red in bull copyright claim

On 10 March 2017, the Commercial Court of Pamplona, the city famous for the “Running of the Bulls”, gave judgment on the use of drawings that an artist had assigned to their employer, including their bull cartoon “Mister Testis” sold to tourists at the famous festival. The court enforced the terms of an assignment against the artist, essentially preventing the atrist from using their distinctive illustration style for another company.

The judgment is one of the few in existence on this subject matter in Spain. The case shows the importance of written agreements in copyright, particularly for companies retaining design agencies to design logos or other works.

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