Swedish Government forms Innovation Council

According to a recently published article in the Swedish business journal Veckans Affärer, the Swedish Minister for Enterprise and Innovation, Mikael Damberg, has promised the creation of an Innovation Council during the spring of 2015 which is to be headed by the Swedish Prime Minister. Mr. Damberg states that a Council of this kind has been the wish of the Prime Minister for a long time in order to emphasize the importance of innovation and to strengthen the global competitiveness of Swedish companies. The Innovation Council will comprise, apart from the Prime Minister and other selected ministers, people from the industry and academia.

According to Mr. Damberg, one of the key issues of the Council will be the apportionment of government venture capital (GVC) to companies of interest. He believes that there is room for improvement of the current GVC administration, as a large portion of the capital is not distributed at all or distributed at a too late stage. He emphasizes that GVC plays an important role, especially in the early stages of R&D, when private venture capitalists may hesitate whether or not to invest.

In my opinion, the initiative of forming an Innovation Council is highly promising. I believe that the support from the Council may be specifically beneficial for small to medium-sized R&D companies which often need a financial push for their progress, whether this results in investing in new equipment, hiring more staff, releasing new products on the market or establishing intellectual property rights.

It will be appreciated that Sweden is regarded as an extremely innovative country. The renowned, New York-based Bloomberg site for business and financial market news publishes each year a ranking list of the most innovative countries in the world based on factors such as the countries’ R&D intensity, manufacturing capability, productivity, researcher concentration, patent activity, etc. In the annual rankings of 2012-2015, Sweden has finished fifth, fifth, second, and sixth, respectively, thereby passing the examination magna cum laude. Nevertheless, it is of vital importance to ensure that Sweden’s enormous innovation potential results in new products, services and intellectual property rights, not only for the benefit of the companies involved, but also of the country’s economic prosperity. Therefore, I believe that the most important task of the Innovation Council is to create and develop strategies such that it may constitute this momentous bridge between innovative ideas and economic growth.

Love Koci, European Patent Attorney

Is there anything morally wrong with “Je suis Charlie”?

In continuation of the terrible terror attack on the French satirical magazine Charlie Hebdo, social medias were flooded with the phrase “Je suis Charlie” (“I am Charlie”) as a message of condolence, outrage and defiance, as well as support for the right to free expression.

As expected, this social media wave resulted in a vast amount of speculative trademark applications being filed for the phrase around the world, as well as registrations of domain names under .fr, .com, .org, and .co.uk.

The need for applicants to exploit a tragic event is not a new trend. As recent examples, trademark applications were also filed for the Malaysian Airlines flight numbers “MH.17” and “MH.30” in continuation of the plane crashes in 2014, and the phrase “I can’t breathe” was filed as a US trademark after the highly debated death of Eric Garner caused by a police officer.

Now, it appears that OHIM has finally had enough, as on 16 January 2015, they issued a statement saying that they normally do not comment on individual cases, but that the registration of “Je suis Charlie” could be considered to be of overriding public interest. Furthermore, OHIM found that the mark could be contrary to public policy or to accepted principles of morality and thus be denied registration with reference to article 7(1)(f) of the Community Trademark Regulation. OHIM also found the mark to possibly be viewed as devoid of distinctive character.

The aim of this statement seems to be to limit the interest in speculative trademark applications aiming at capitalizing on current trends in the media picture. OHIM simply points out that such may be rejected on absolute grounds.

But even though the intention from OHIM is understandable, and speculative trademark applications should be prevented, one cannot help but wonder in what way “Je suis Charlie” is contrary to principles of morality. The mark is neither offensive nor vulgar. There is little doubt that the problem with this phrase and prior similar applications is not the marks themselves, but the identity of the applicants, who has no connection with Charlie Hebdo, Malaysian Airlines or Eric Garner. However, the relevant article 7(1)(f) relates only to the mark itself and not the name of the applicant. Consequently, the above statement from OHIM indicates an expansion of article 7(1)(f), which might be difficult to interpret going forward. Because is it only Charlie Hebdo who will be able to obtain a registration for this phrase, or will non-profit organizations against terror or for the right to free expression also be able do to so? And what happens if an original, non-offensive phrase which refers to a tragic event is filed before it becomes well-known through social media?

In my opinion, a better option for OHIM would have been to do like the French IP office did with 50 applications for the same phrase, and simply reject these applications for “Je suis Charlie” due to lack of distinctive character, and the fact that this slogan now belongs to the public. The phrase will hardly function as an indication of origin for any product or any person not in some way connected to the magazine of Charlie Hebdo.

Anders Michael Poulsen, Attorney at Law, LL.M.

The UPCA Opt-in/Pin-out scenario

The Unified Patent court agreement (UPCA) has been ratified in 2014 by both Denmark and Sweden, so even if the actual advent of the unitary patent and UPC is still some way off, potential patent rights holders in the two countries should already now prepare for the new regime.

The coming into force of the UPCA – presumably in early 2016 – will bring about many changes to the patent system in Europe. Most importantly, the unitary patent will provide enforceable protection of IP rights in all the participating EU member states based on a single EP application without the costly and cumbersome validation and translation requirements associated with the present, nationally enforced “bundle patents”.

Enforcement of patent rights based on the unitary patent will take place via the UPC, which will have exclusive, centralized jurisdiction not only over unitary patents, but also over “regular” European patents (EPs) and supplementary protection certificates (SPCs) in those EU countries which have ratified the UPCA (Art. 3 UPCA).

The UPCA allows for a transitional period of at least seven years (Art. 83 UPCA). During this time, rights holders can choose to “opt out” of the exclusive competence of the UPC and stay with the “bundle patents” solution, provided that no action has already been brought before the UPC. This potential problem can even be prevented by opting out of the still pending EP application, so that the ensuing patent is automatically “opted out” from the unitary system at grant.

The opt-out will remain in effect until the patent expires unless the rights holder decides to “opt back in” again, i.e. to withdraw his “opt-out” application and accept the unitary patent solution. This choice should be made carefully, however, as there is no possibility of opting out of a Unitary Patent and reverting to the “bundle patent” situation (Rule 5.11 of the Rules of Procedure of the UPC (RoP), currently available in draft number 16).

It is foreseen that many cautious rights holders will choose to opt out since it can be seen as a “free ride” (apart from a fee), since Art. 83(4) UPCA allows European patentees, applicants or holders of SPCs who make use of the opt-out to change their minds under certain circumstances. They are thus “entitled to withdraw their opt-out at any moment”, but only if no action has already been brought before a national court.

The rights holder’s strategic decision to opt back in again once a central attack on a presumed infringer is desired can thus be blocked if just one of the bundle patents resulting from the opt-out has been “pinned out” by an action brought before a national court. At the present time the legal provisions for the UPCA transition period are far from clarified, and thus how much or how little will constitute “an action” is not certain. It is also not known what the effect will be if said action is completely overcome by the rights holder – will he/she then be allowed to opt back in?

In conclusion, present and future rights holders in Europe should be very careful when choosing to strategically opt out of the UPCA, as they can be outsmarted and prevented from opting back in again by a just as strategic pin-out by a competitor.

Michael Bech Sommer, European Patent Attorney