Never Too Late: If you missed the IPKat last week!

Another week is in full (IP) swing. In the meantime, enjoy the latest weekly NTL post!

Patents and AI

Katfriend Peter Arrowsmith (GJE) reported on the results of the poll he had in his post three months ago regarding the Court of Appeal decision in Comptroller-General of Patents, Designs and Trade Marks v Emotional Perception AI Limited [2024] EWCA Civ 825. It revealed that 59% of participating readers (105) are in favour of rehauling exclusions to patent protection. The majority view shows an appetite for a patent system that more fairly rewards investment in innovation, regardless of whether an invention involves an arbitrary technical effect.

Rose Hughes looked into a machine learning model called AlphaFold for predicting protein structure. While comparing the different versions of AlphaFold, our Kat discussed Google DeepMind's strategy of switching from an open source to a commercial model for AlphaFold.

Katfriend Kate Voller (GJE) reviewed a recent CIPA webinar with the EPO on how the EPO is leveraging AI tools in the examination. The EPO emphasized that its AI tools should be used to assist, not replace, human examiners. While AI automates many aspects of the patent document search process, human examiners remain essential. The EPO’s AI tools help examiners manage growing volumes of data, making patent searches more efficient, accurate, and comprehensive.

Trade marks

Marcel Pemsel analysed a recent judgment concerning trade marks for model designations of the car makers Audi and NIO. The Higher Regional Court assessed the non-use defence, the relevance and similarity of signs, and the likelihood of confusion. The case shows the acceptance of direct confusion instead of evaluating indirect confusion.

Jocelyn Bosse discussed the recent judgment of the Federal Court of Australia in Koninklijke Douwe Egberts BV v Cantarella Bros Pty Ltd [2024] FCA 1277. The case involved allegations of trade mark infringement, breaches of the Australian Consumer Law, and passing off.

Marcel Pemsel also discussed a recent decision concerning colour trade marks, specifically “Kärcher yellow” for high-pressure cleaners. Kärcher successfully filed a trade mark infringement action against an Italian company and its German subsidiary. The defendants unsuccessfully appealed to the Higher.

Copyright

Anastasiia Kyrylenko analysed Advocate General Szpunar’s Opinion in case C-575/23. The referral arose from a dispute between the Belgian National Orchestra and its musicians over performance rights and remuneration. Katfriends Phil Sherrell, Louise Sargent, and Shiv Gupta (all Bird & Bird) discussed the decision in WaterRower v Liking 2024 EWHC 2806 (IPEC). The WaterRower is a rowing machine designed by Mr John Duke that works through water resistance. The case questioned whether the WaterRower is a work of artistic craftsmanship or a functional machine not deserving copyright protection.

IP opportunities, events, and news

Eleonora Rosati informed readers about IP events and opportunities in the latest Monday Miscellany post. The University of Perpignan will host a 1-day conference on non-agri GIs on 21 November. Moreover, The Copyright Society will host its traditional Midwinter Meeting between 30 January and 1 February 2025 in New Orleans. Some of the opportunities include the AI and Law Research Awards program at the University of Miami School of Law, the 2025 National Patent Application Drafting Competition at the U.S. Patent and Trademark Office as well as an Assistant Professor position at LSE for applicants specializing in data, AI and/or technology law.

Book Review

Our former InternKat Alexandre Miura reviewed the book “NFTs, Creativity and the Law – Within and beyond copyright,” edited by Enrico Bonadio and Caterina Sganga.

Photo taken by Asude Sena Moya.