14 January, 2022 - 21:50

IP in 2022 – What next and where?

Intellectual Property (IP) has changed much less than many other sectors since 2019 – largely because it is, as its name implies, intellectual, writes Patent attorney Andrew Bentham of J A Kemp in Cambridge. 

Notwithstanding the pandemic, technology companies found ways to continue research and patenting, brands needed to maintain their competitive edge, and of course Covid-19 also stimulated innovation. 

Much IP work can be done remotely and, for many businesses, IP is too critical to put to one side for long. Meantime, the UK has gradually left the EU but this makes less difference than might be imagined as applicants now need separate UK trade marks and registered designs but patents were never EU rights in the first place. So will 2022 be the year of the following?

A Covid IP waiver? 
Debate rumbles on about whether Covid-related IP, especially patents on vaccines, should be waived in the hope of expanding global access to medicines and other developments. 

However, despite some perhaps surprising support from the new US administration, the WTO described the discussions as “stuck” in November. Waiving IP may sound good politically but is not a solution on its own and there are credible arguments that patents are not the main obstacle to global distribution of medicines. 

As we’ve said before, negotiations on a waiver may last longer than the pandemic. Meantime, though, Covid-related patent applications filed since early 2020 are starting to reach their 18-month publication points so everyone is starting to see more of what everyone else has been working on; this will continue in 2022.

IP and climate change? 
COP26 focused global attention on mitigating climate change, and technology will play a part in that. We can expect ever-increasing innovation, and consequently patent activity, in decarbonisation.

An EU patent? 
A few years ago this long-unachieved goal seemed within touching distance but the UK’s vote to leave the EU and constitutional challenges in Germany robbed the project of momentum. 

Recently, however, progress has renewed and it is plausible that the new system could be operational in 2022. If so this will at last enable patent applicants, including those from the UK and other non-EU states, to obtain and enforce a single ‘unitary’ EU patent rather than the current bundle of national rights. So 2022 could be the unitary patent’s year – but admittedly the same could have been said about many other years since the 1970s!

A major ‘correction’ in the USA? 

For about ten years, the US patent system has been wrestling with issues of patent eligibility, i.e. what inventions can be patented at all as opposed to whether they are novel, non-obvious and so forth.

This has different impacts in different sectors but has particularly complicated matters for inventors in diagnostics and sprawled into many hi-tech and biotech areas.

Several commentators say that many issues currently raised under eligibility would better be dealt with on other bases, for example obviousness or non-enablement, than by asking whether an inventor is attempting to monopolise a law of nature.

Patent applicants and professionals have called throughout for either legislation or more decisive Supreme Court intervention. With so many other priorities, it seems very unlikely that Congress will enact the former but there is a chance of the latter in an ongoing case known as American Axle. However, even if the Supreme Court does take up and decide that case, no-one can say whether the position will be better or worse for businesses.

AI inventors? 

2020 and 2021 saw periodic developments in the efforts of the artificial intelligence DABUS and its legal team to obtain patents on its inventions in various jurisdictions.

Albeit with a couple of exceptions, these are now tending to founder because DABUS is not a human inventor. However, it is also not by any means clear whether DABUS’ inventions so far would really be validly patentable even if they progressed to examination. 

More important is that 2022 could easily be a good year for further development in AI-enabled and big data inventions, which have huge potential to revolutionise multiple fields from autonomous vehicles to drug discovery.

Or all, or none, of the above? 

If the above is correct, there may be a ‘business as usual’ feel to 2022 but it’s easy to be wrong in an area that is supposed to be all about innovation. Something disruptive can always happen. But whether via great breakthroughs or incremental progress, hopefully IP will continue to build value in 2022.

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