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Articles by Mark Marfe
UPC arbitration: what businesses need to know about the PMAC
While businesses will need to wait until later in the year to obtain expert determinations or awards by arbitrators via the centre, they can now submit requests for proceedings through its case management system. The option to use the PMAC’s mediation services also became a live one on 12 May. The PMAC will have two locations: in Ljubljana, Slovenia; and Lisbon, Portugal. Historically, arbitration has played a limited role in patent disputes.
Specialist chapter: Two years of the UPC as mainstay of European patent litigation
Shutterstock/Rahayu footage This is an Insight article, written by a selected contributor as part of IAM's co-published content. Read more on Insight In summary The Unified Patent Court (UPC) has now been operating for two years and has firmly established itself as a leading forum for patent disputes in Europe.
Specialist chapter: two years of the UPC - a mainstay of European patent litigation
This is an Insight article, written by a selected contributor as part of IAM's co-published content. Read more on Insight In summary The Unified Patent Court (UPC) has now been operating for two years and has firmly established itself as a leading forum for patent disputes in Europe.
Tesla appeal dismissed in ‘5G vehicles’ patent pool case
Judges in England and Wales cannot step in to declare what constitutes fair, reasonable and non-discriminatory (FRAND) terms for licensing standard-essential patents (SEPs) unless businesses seeking that intervention have a legal basis for raising a claim in relation to those patents, the Court of Appeal has ruled.
EU drops standard-essential patent reform plans
The Commission’s withdrawal of the proposed new EU regulation on SEPs was confirmed in its work programme for 2025 (29-page / 434KB PDF), published earlier this week. In that document, the Commission said the fact there is “no foreseeable agreement” on the reforms was the reason it is withdrawing the regulation, adding that it will “assess whether another proposal should be tabled or another type of approach should be chosen”.
UK Supreme Court to hear another important AI patent case
The UK Supreme Court has confirmed to Out-Law that leave to appeal has been granted in the case between Emotional Perception AI Ltd (Emotional Perception or EPL) and the UK’s Intellectual Property Office (IPO). Dates for hearings before the court have yet to be fixed. This time last year, in a different case, the UK Supreme Court ruled that AI systems cannot be the owner of, nor be transferred, patent rights.
UPC: Philips succeeds against Belkin in first full SEP decision
The court found Philips’ patent for wireless charging of portable electronic devices to be valid as granted and infringed by Belkin. Notably, a FRAND defence was not available to Belkin. The injunction granted covers several European countries including Germany, but carves out Belkin GmbH and Belkin Limited in Germany, as there is a contradicting legally binding national judgement already in place that involves both businesses.
AI cannot be an inventor under UK patent law, rules Supreme Court
The UK’s highest court reiterated the views expressed by lower courts in the country, that UK patent law as it stands does not provide for AI inventorship – only a human can be named as the inventor on a patent application in the UK. The ruling (25-page / 287KB PDF) went against Dr. Stephen Thaler who was seeking to patent inventions that he claims were derived from an AI machine called 'DABUS'.
Optis v Apple cements UK as a leading FRAND rate jurisdiction
Primakov / Shutterstock A transparent analysis of comparable licence rates is just one aspect of this useful ruling, say Mark Marfé and Carissa Kendall-Windless of Pinsent Masons. The UK’s High Court has said that relying on suitable comparable licences remains key to determining a global rate in UK fair, reasonable and non-discriminatory (FRAND) litigation.
Global FRAND rate set by UK court in Optis v Apple patent dispute
Mark Marfé and Carissa Kendall-Windless of Pinsent Masons were commenting after the High Court in London set the terms of a licence for Apple’s use of standard-essential patents (SEPs) owned by Optis Cellular Technologies (Optis) that it considered to be fair, reasonable and non-discriminatory (FRAND). “The UK is one of only two jurisdictions – the other being China – where the courts will determine a global FRAND rate,” said Marfé.
New EU proposals on FRAND patent licensing aim to resolve disputes out of court
SEP holders that fail to register the patents they consider standard essential in a timely manner will not be able to claim damages or collect royalties on the SEPs for the duration of the delay. The competence centre would be responsible for undertaking essentiality checks on a sample of registered SEPs annually.
High Court finds no copyright protection in bitcoin file format - Commentary
Introduction Facts Background Decision Comment Introduction The recent High Court judgment in Wright & Ors v BTC Core & Ors(1) considered whether copyright could subsist in what was termed in the proceedings as the “bitcoin file format” (ie, the file format used to create blocks on the bitcoin blockchain). A key focus for the English courts when assessing whether copyright subsists in file formats has been the requirement of “fixation” of the work.
How ChatGPT might be applied in life sciences and medtech
What is ChatGPT? Developed by OpenAI, ChatGPT is a natural language processing tool launched in November 2022, which uses a novel artificial intelligence (AI) algorithm. Its ability to predict a sequence of words based on the context of those written in prior sequences, rather than being trained on large amounts of data, means ChatGPT can “answer follow-up questions, admit mistakes, challenge incorrect premises, and reject inappropriate requests”, according to OpenAI.
UK High Court decision paves the way on setting global FRAND royalty rate
The dispute between Lenovo and InterDigital, a manufacturer specialising in wireless and video communication technology, arose over the licensing terms for use of telecoms patents owned by InterDigital that had been declared essential to the operation of the 3G, 4G and 5G standards set out by the European Telecommunications Standards Institute (ETSI).
Landmark Thaler AI patent case to be heard by UK Supreme Court
Technologist and entrepreneur Dr. Stephen Thaler is seeking to seeking to patent inventions that he claims were derived from an AI machine called 'DABUS'. He believes the owner of AI systems should be the default owner of patents for inventions derived from those systems, and that it should be possible to name those AI systems as inventors on patent applications.
Patent rights in quantum computing to become increasingly important, say experts
Professor Winfried Hensinger of University of Sussex, who is also chief scientist and co-founder at Universal Quantum, said: “We knew a modular approach was key to make quantum computers powerful enough to solve step-changing industry problems.
Getty sues over use of images to train AI
Talbot and Phillips were commenting after Getty Images announced that it had commenced legal proceedings against Stability AI before the High Court in London, alleging infringement of its IP rights. Stability AI’s ‘Stable Diffusion’ system automatically generates images. According to the company’s website, the tool has been trained using data compiled from “a general crawl of the internet” by the Large-scale Artificial Intelligence Open Network, a German charity.
Australian High Court pulls plug on landmark DABUS AI patent application
The Australian High Court dismissed an application from Dr Stephen Thaler for special leave to appeal the decision of the Full Federal Court, which ruled earlier this year that only natural persons such as a business or individual can be an inventor under Australian patent law. Sarah Taylor, intellectual property expert at Pinsent Masons, said: “Australia is the first jurisdiction where a final, non-appealable decision has been issued by the courts.
Apple patent ruling clarifies UK choices for tech implementers
The court upheld an earlier ruling by the High Court of England and Wales in a dispute that has multiple strands between Apple and patent holder Optis Cellular Technology. Its judgment is applicable to standard-essential patents (SEP) subject to the intellectual property rights (IPR) policy of ETSI, the standard-setting body. Optis is bound to license its SEPs on fair, reasonable and non-discriminatory (FRAND) terms in accordance with the ETSI IPR policy.
New property rights relevant to ‘data objects’ proposed
The Law Commission said the existing law on personal property rights of England and Wales has shown itself to be flexible in relation to moving with the times.
UK Supreme Court to consider AI inventorship in ‘DABUS’ patent dispute
The issue is at the heart of a long-running dispute between US scientist and technologist Dr. Stephen Thaler and the comptroller-general of patents at the UK’s Intellectual Property Office (UKIPO). Thaler has claimed that an AI machine he developed, known as ‘DABUS’, is responsible for a series of inventions. He has filed patent applications before the UKIPO seeking to patent those inventions.
Firms urged to consider data and IP questions when developing green AI
Marfé explained: “The challenge for the data provider is that data is not ‘owned’ – rather, there are ‘ownership-like’ rights that subsist over data. Because the data provider doesn’t own the data by default – nor can it simply limit what data it provides- it needs to build and maintain data ownership into the project documentation. This means being wary of contract terms that may erode that data ownership.
Law on computer-implemented inventions unclear after Australian patent ruling
Anna Harley of Pinsent Masons was commenting after a rare split decision of the High Court of Australia (67-page / 675KB PDF) in a case where the patentability of a computer-implemented invention relevant to electronic gaming machines was under review. “The decision will have broad implications for the patentability of other computer-implemented inventions in Australia, including but not limited to inventions derived from artificial intelligence (AI) systems,” Harley said.
UK standard-essential patent reforms parked, for now
The UKIPO said that it plans to consider the feedback it has received from businesses and other stakeholders on possible measures of intervention before deciding whether to recommend changes. A standard-essential patent (SEP) is a patent that protects technology believed to be essential to implementing a technical standard. In other words, you cannot operate a standard-compliant device without necessarily using the patented invention.
Concept of AI inventor rejected in Australian patent ruling
The judges further agreed that the case had raised “many propositions … for consideration in the context of artificial intelligence and inventions” and left the door open for policymakers and legislators in Australia to address those issues, rather than the courts. Those propositions “…include whether, as a matter of policy, a person who is an inventor should be redefined to include an artificial intelligence. If so, to whom should a patent be granted in respect of its output?
EU considers time limits for FRAND licensing negotiations
EU policymakers are considering putting time limits on the different stages of negotiations involved in agreeing licenses for standard-essential patents (SEPs). The European Commission has asked businesses for their views on whether fixing time limits would be desirable and, if so, what periods would be reasonable.
AI inventorship claim dismissed by EPO Board of Appeal
Artificial intelligence (AI) systems cannot be named as an inventor on a patent application, the European Patent Office Board of Appeal (EPO BoA) has ruled. According to a statement issued by the tribunal, the designated inventor for a European patent application must be a person with legal capacity. The decision concerns ‘DABUS’, an AI system developed by US scientist and technologist Dr. Stephen Thaler.
Apple wins latest round of UK patent dispute with Optis
US technology giant Apple has successfully argued that it is not responsible for infringing a patent for technology that supports continued connectivity during mobile phone calls. Although the Court of Appeal in London rejected Apple’s claims that the patent owned by telecoms company Optis Cellular Technology was invalid, it accepted its case that the patent was not ‘essential’ to a communications standard and that it had not infringed the patent.
German court considers AI generated inventions
Artificial intelligence (AI) generated inventions are not precluded from patent protection – provided a human is named as inventor in the patent application, Germany’s Federal Patent Court has ruled. According to publisher JUVE Patent, the Federal Patent Court in Germany ruled that the named inventor in a patent application must be a natural person, but that the AI system supposedly responsible for the underlying invention can be additionally named.
How to navigate complex IP issues in European tech M&A
Also relevant to decisions over whether to register IP rights are the consequences if businesses subsequently fail to make use of the rights. Buyers will want to review whether trade marks owned by target companies have been put to use, as the rights are liable to be revoked if they have not been, as Gian Marchet Kasper of Blum & Grob highlighted is the case in Switzerland. The existence of separate EU and UK regimes also has a bearing on the exhaustion of IP rights.
Supreme Court appeal and legislation possible after latest UK DABUS patent decision
The UK is aiming to become a world leader in AI. Part of that may mean a change of approach to the patenting of AI-created inventions. Mark Marfé and Sarah Taylor of Pinsent Masons explain Returning user? Enter your details below to log into your account. E-Mail Address: Password: I am not on a shared computer, please remember me for my next visit. Want to read more? Register to access two of our subscriber only articles per month.
UK considers IP and regulatory reform for AI age
Changes to intellectual property (IP) laws to account for the growing use of artificial intelligence (AI) systems will be proposed by the UK government before the end of the year, while an overhaul of the approach to regulating AI in the UK is also under government consideration. Details of the government’s thinking on the issues were set out in its recently published national AI strategy. The strategy is based on three assumptions.
AI inventor claims rejected in Court of Appeal patent ruling
AI systems cannot own or transfer patent rights under UK law currently, the Court of Appeal in London has ruled. The case before the Court of Appeal concerned an appeal raised by Dr. Stephen Thaler, who has been seeking to patent inventions that he claims were derived from an AI machine called 'DABUS'. The Court of Appeal found that only a person can be an inventor, and that as Dr Thaler accepts that he is not the inventor, he has no entitlement to the patent.
UK court backs rights holder in ‘essential’ patent dispute
The High Court in London has decided in favour of Optis Cellular Technology in a dispute over the validity of one of its telecommunications network patents and one that was said to be essential to the long-term evolution (LTE) network standard. The latest decision is the second of four technical trials listed in a long-standing patent and licensing dispute between Optis and Apple, all concerning patents from Optis’ portfolio of telecoms network standard essential patents (SEPs).
Independent essentiality assessments for standard-essential patents endorsed
Businesses that want to make money from licensing out their standard-essential patents (SEPs) to others should be required to subject those patents to independent assessments of their 'essentiality', a group of experts established by the European Commission has said.
Green tech revolution requires thought to be given to IP
The emergence of new cleaner, greener technologies is vital to enable governments and businesses around the world to reduce their carbon emissions and meet environmental targets. However, while EU and UK policy makers are getting behind the green tech revolution, businesses must navigate a complex intellectual property (IP) rights framework to extract the greatest value from their innovations in this developing market.
AI-related invention not patentable, rules High Court
A recent UK court decision has highlighted how important it is for inventors of AI technology to clearly describe their inventions and include all relevant technical detail when filing a patent application, experts in patent law have said.
Standard-essential patent licensing faces EU ruling and potential reform
The EU's highest court has been asked to rule on whether standard-essential patent (SEP) owners can pick and choose which businesses in a supply chain they pursue for licensing their technology. The Regional Court of Düsseldorf referred 10 questions to the Court of Justice of the EU (CJEU), seeking clarity on the ongoing SEP dispute between Nokia and Daimler, just a day after the European Commission reiterated its desire to reduce the volume of disputes concerning SEP licensing in the EU.
Unwired Planet: unpicking the UK Supreme Court's ruling
With a growing number of businesses whose operations, products and services are becoming smarter and more connected, the future of patent licensing in areas such as digital health and connected and autonomous vehicles will be shaped by a recent ruling by the UK Supreme Court that may on the face of it have been considered relevant only to the conventional telecoms industry.
UK patent applications cannot name AI inventors
UK patent applications cannot name AI inventors Out-Law News | 30 Sep 2020 | 4:39 pm | 3 min. read Existing patent legislation would need to be amended to enable companies to name artificial intelligence (AI) systems as 'inventors' on UK patent applications and own such patent rights, experts in intellectual property (IP) law have said.
German Federal Court of Justice’s FRAND decision is a win for patent owners
The law on the licensing of standard-essential patents (SEPs) in Germany has come into closer alignment with that which applies in England and Wales following a recent ruling by the German Federal Court of Justice.
‘Fashiontech’ hits the catwalk
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