IP in 2024 – What next?
The UP and UPC
A unitary patent offers broad territorial protection together with a business-friendly level of renewal fees. It therefore provides good value for money and so has generally been welcomed by smaller businesses.
The Unified Patent Court (UPC) is a court comprising judges from all participating Member States of the European Union. It is set up to decide on the infringement and validity of both unitary patents as well as classic European patents.
A benefit of the UPC system is the possibility for patentees to centrally enforce their patents. However, unitary patents are at risk of being revoked by the UPC, which would mean loss of protection in all participating states.
At the time of writing, nearly 100 UPC actions have been filed across all technology areas. This indicates that some companies are prepared to embrace the opportunities offered by the new court.
J A Kemp are the representatives on two of the first revocation actions filed, so we have early first-hand experience of UPC proceedings, but the court has not yet published any decisions so watch this space.
Filing trends
The last few years have seen many global uncertainties. However, according to the latest European Patent Office (EPO) data, patent filings remain strong (up 2.5 per cent in 2022 compared with 2021). The areas of medical technology, pharmaceuticals and biotechnology all saw growth over this period.
The EPO has highlighted the field of “smart health”, which includes wearable devices, as seeing increased filings. Technologies based on the harvesting of big data are also on the increase.
AI made the news in 2023 when the UK’s Supreme Court issued a final decision in the DABUS case, confirming that AI systems cannot be named as inventors on UK patent applications.
However, patents for AI-related inventions can be obtained and this continues to be a growth area, particularly in areas such as personalised medicine, processing of medical images, smart devices and climate technologies. Cambridge DeepTech companies seem likely to continue to lead the UK efforts in this field.
‘Hot’ areas in biotechnology
Immunotherapy remains a hot topic, including CAR-T technology, checkpoint inhibitors and Treg targeting therapies. We are also still seeing plenty of filings relating to mRNA vaccines, personalised medicine, neurodegenerative diseases and gene therapy.
There is increasing interest in areas like the microbiome and AI-based drug discovery. The Cambridge area is, of course, at the forefront of many of these technology areas.
Antibodies still represent a competitive area for biotechnology filings. Recent case law from the EPO has confirmed that it is still possible to obtain broad antibody claims, e.g. where the antibody is defined by its epitope.
However, evidence to support patentability is crucial – applicants will need to be able to explain why binding to an epitope is non-obvious and advantageous.
Going back to the UPC, the first revocation action was in fact filed by Sanofi in their dispute with Amgen relating to anti-PCSK9 antibodies (Amgen have subsequently claimed for infringement).
This dispute has already been highly influential, resulting in a US Supreme Court decision that mean only sequence-restricted claims are allowed in the US. We await the UPC’s decision with interest.
