i2022 IP OUTLOOK
KEY TAKEAWAYS AND OUTLOOK FOR 2022
While European intellectual property (IP) regimes have slowly digested the Brexit shock, brand owners are vacillating between optimism and apprehension in 2022 as they navigate continuous developments in IP law. At the forefront is the prospect of greater patent law harmonization with the entry into force of the Unified Patent Court (UPC) and the European patent with unitary effect. En route to this unification, however, are some anticipated challenges.
The actions initiated in 2021 that will continue to spark conversation (and controversy) in 2022 include:
PATENT PROTECTION STRATEGIES IN LIGHT OF A UNITARY PATENT SYSTEM
While it remains to be seen exactly when in 2022 (or 2023) the UPC will finally begin its work, all entities doing business in the European Union should assess their patent portfolio now to decide whether they should opt-in or opt-out from the UPC regime for their existing European patents. A key consideration for this assessment and for patents going forward, inter alia, is the strength of their invention(s) and their materiality for their business. Additionally, when the UPC becomes fully operational, the complexities of navigating an inaugural multinational court system will include acclimating to new filing requirements and court procedures, as well as considering the risk tolerance for shaping new law.
THE UNEXPECTED TWISTS OF SEPS AND FRAND LAWS
We do not expect a further landmark decision by the Court of Justice of the European Union (CJEU) regarding standard-essential patent (SEP) licensing negotiations and fair, reasonable and non-discriminatory (FRAND) rates in 2022. Therefore, the open issues, such as licensing to supply chains, will remain controversial and have to be resolved elsewhere. As the recently retired German Federal Court of Justice Judge, Peter Meier-Beck, said, for such issues, alternative dispute resolution such as by arbitration, mediation and negotiations may be the more effective tools to determine FRAND license terms. In that regard, it will be interesting to see what new impetus will come from the United Kingdom Intellectual Property Office’s (UKIPO) open consultation on SEPs, which will run until 1 March 2022.
HARMONIZATION OF TRADEMARK LAW?
In the trademark law sector, nontraditional forms, such as three-dimensional trademarks, will continue to represent an attractive, often underestimated, opportunity to protect IP rights in Europe in a more effective manner. Harmonization will also progress here, possibly including decisions by EU courts on the remaining open questions, such as the similarity of (non-)alcoholic beverages.
