Bristows’ Richard Pinckney discusses life in patent litigation and why science marries perfectly with the law

When one imagines the career journey of an intellectual property (IP) lawyer, the common expectation might be that they always knew law was their calling. For Richard Pinckney, a partner at Bristows, that path was more of an evolution – a journey where science and legal practice came together to form a fulfilling career. I sat down with Pinckney, who opened up about how he transitioned from engineering to law, sharing his reflections on why IP litigation is magnet for young scientists.

Pinckney’s career journey began with an academic background in engineering. “I studied engineering science,” he recalls, “and I had to think about not only what I wanted to do as a job but what I wanted to do as a career.” At that stage, he hadn’t even considered law as an option until a friend suggested that it might suit his personality and interests. “The idea of being a solicitor or lawyer hadn’t really occurred to me,” Pinckney admits. “But I looked into it and discovered this whole field of law called intellectual property, which I knew nothing about before, and quickly realised that I would enjoy it.”

This realisation led him to pursue a vacation scheme at Bristows, where he got his first real taste of what a career in IP law could look like. “Not every career lets you try it out before you do it,” he reflects. “I sat in intellectual property litigation during my vac scheme, and it definitely ticked the box of letting me engage with the science, as well as pushing me and challenging me in new ways.” The experience confirmed that IP litigation would allow him to engage with science in ways that were intellectually fulfilling.

The world of IP, and particularly patent litigation, allowed Pinckney to blend his engineering expertise with legal problem-solving. He explains that it gave him the chance to engage with science while simultaneously tackling the legal challenges surrounding it. This combination—melding the technical with the legal—was exactly what made IP law appealing to Pinckney. “I didn’t want to specialise too soon,” he says. “I wanted a career that had an established path and allowed me to become an expert in a field quickly. I was drawn to a career where someone would seek my advice as an expert, which is why law, and particularly patent litigation, appealed to me.”

Why did your friend suggest that you’d be a good fit for the law? I ask. “I think they saw that I wasn’t the type of person to sit in a corner and tinker with things all day,” he replies candidly. “I was a bit more outgoing than that. They believed I would excel in a career that not only required problem-solving skills and intelligence but also allowed me to interact with people and engage with them on a more social level.”

A significant part of Pinckney’s story is his long tenure at Bristows, a firm known for its expertise in IP and technology law. Unlike many legal professionals who hop between firms in search of the right fit, Pinckney found his home at Bristows early in his career. “Bristows doesn’t have a chargeable hour target,” he emphasises. “We motivate our fee earners by doing really good quality work, respecting each other, and wanting to demonstrate effective advice.” In a world where the billable hour is often king, he tells me that Bristows has created an environment that fosters quality over quantity, attracting talented lawyers who are driven by the intellectual demands of their work rather than the pressures of clocking hours.

Reflecting on what initially drew him to the firm, Pinckney says, “Bristows is one of the best places to do patent litigation. It has the best clients, does top-quality work, and has some of the best lawyers in the field. But what really attracted me was that isn’t a big, faceless firm where I would be just another number in the machine.” He continues, “So, if I answer the question of why I’m still here, what reassures me is that all the reasons I joined Bristows remain true.”

“Bristows is still one of the top firms for patent litigation, consistently ranked at the highest levels,” he continued. “The people I work with are incredibly smart and continue to challenge me. We have great clients, and the work we do is always of the highest quality.”

One of the most intriguing aspects of Pinckney’s work is the nature of IP disputes themselves. Patent litigation is, by its very nature, a marriage of science and law. For Pinckney, this is where the challenge and the reward of the job lie. “I normally have two or three ongoing projects or litigations at the same time, always in the field of technology, often focused on patents,” he shares. His current work often involves telecommunications companies and patents essential to the development and sale of cutting-edge products. A recent case he’s been involved in revolves around third and fourth-generation (3G and 4G) telecommunications technologies, with disputes over patent infringement, patent validity and appropriate licensing terms.

“We’re working with a client in the telecommunications field who owns a large portfolio of patents related to 3G and 4G technologies,” Pinckney explains. “They’ve asserted those patent rights against two companies that manufacture and sell mobile phones. The work involves both proving that our client’s patents are valid and figuring out how much the defendants should pay to use that technology.”

In these cases, Pinckney and his team must prove that their client’s patent rights are valid, establishing that they are novel inventions deserving of protection. At the same time, they must argue that these patents have been infringed upon, often by well-known manufacturers of mobile devices. In Pinckney’s view, this combination of highly technical legal and commercial questions is what makes patent litigation so fascinating.

With the rise of artificial intelligence (AI), Pinckney’s practice area is on the cusp of even greater change. Generative AI is poised to impact the way intellectual property is protected and commercialised. When asked about AI’s role in IP law, Pinckney acknowledged that while AI will certainly streamline processes, it won’t replace the need for human judgement in complex legal matters.

“AI will make our jobs easier and overall will save our clients money, but the vast majority of the work we do will not be able to be done by AI,” he explains. The role of AI in patent law goes beyond automation; it also raises new legal questions about whether AI can be considered an inventor and whether its creations can be patented. “There are fascinating questions like, ‘Can an AI algorithm be the inventor of a patent?’” Pinckney muses. “These kinds of legal questions will become more frequent as AI continues to evolve.”

Moreover, Pinckney’s background in STEM (science, technology, engineering, and mathematics) has equipped him with a unique perspective that makes him well-suited to navigate these technological shifts. As the legal profession increasingly intersects with advancements in science and technology, lawyers like Pinckney, who possess both technical and legal expertise, will be invaluable.

When asked why STEM students should consider a career in law, Pinckney highlighted the logical nature of both fields. “Law is also logical,” he notes. “There are rules you follow, but you also have to exercise judgement.” For STEM graduates who enjoy the structured, problem-solving aspects of science and engineering, he emphasises that a legal career can offer similar intellectual rewards, especially in fields like patent litigation where the subject matter directly overlaps with scientific and technological innovation.

Drawing the interview to a close, Pinckney offers a piece of advice that, while simple, is perhaps the most important lesson for anyone considering a career in law  — or any field, for that matter. “Focus on what you enjoy,” he urges. “If you enjoy it, it’s so much easier.” He emphasises the importance of aligning your career with your passions, explaining that it not only makes the work more enjoyable but also motivates you to engage fully with it. “Once you figure out what it is that you enjoy, throw yourself into it. Don’t just sit back and watch life go by — actively engage with your career.”

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First-year law student Shinelle Leo looks at last year’s cultural film phenomenon

No matter where in the world you were in the summer of 2023, it was impossible to escape the ‘Barbenheimer’ phenomenon. Whilst one movie is a pink-themed, post-modern take on a blonde doll navigating the human world, the other is a pensive and striking biopic based on the ‘Father of the Atomic Bomb’. Many may have watched both purely for their love of cinema, however keen legal heads would have been curious to consider the legalities preceding the films. Both pictures have a fascinating legal framework covering intellectual property (IP) protection and historical legislation.

Trademarks, trade secrets and Mattel

According to BrandFinance, the Barbie brand has a market value worth USD$701 million in intellectual property. It is well-established that their owners, Mattel, intend to protect all Barbie creations. Mattel has developed the IP profile for Barbie by registering trademarks and copyright protection globally including 23 registered trademarks in the EU and over 30 registered in the UK, including the name ‘Barbie’, variations of the logo, Barbie’s iconic boyfriend ‘Ken’ and now, trademarks for the phrases ‘Kenough’ and ‘Mojo Dojo Casa House’.

The chronicles of ‘Barbie pink’

Mattel owns a range of trademarks for different features of Barbie. One irrefutable feature of not only the brand itself, but also the movie, is the substantial usage of the colour pink including the introductory song being named ‘Pink’. Although theoretically impossible to trademark an entire colour, Mattel does have (unofficial) protection for a specific shade of pink- Pantone 219C. This has been consistently used when portraying Barbie and has arguably achieved ‘acquired distinctiveness’. This is where, for a trademark to be claimed, it has to have become ‘distinctive’ resulting from its use in the market to the extent that consumers recognise the trademark in relation to a particular good or service. Mattel has attempted to register a trademark for the ‘Barbie Pink’ with the US Patent and Trademark Office in over 100 categories — although this is yet to be officially trademarked.

The acquired distinctiveness of ‘Barbie pink’ was further argued by Mattel when they sued Rap Snacks, alleging that they infringed on the trademark rights of Barbie. This was not just for Rap Snacks using the name ‘Barbie’ in ‘Barbie-Que Chips’, but also for using their famous pink on its packaging. Mattel argued that this would cause consumers to associate the defendant’s products with the Barbie brand. However, the case was ultimately dismissed as Rap Snacks agreed to stop selling the product.

A Barbie girl in a Barbie world?

Mattel is also keen to protect the usage of the name ‘Barbie’ being used by other parties. In 1997, they sued the band Aqua for their song ‘Barbie Girl’ as they published the song without gaining Mattel’s prior consent to use the doll’s name. As the song became increasingly popular, Mattel sued MCA Records, Universal Music International, and other parties involved in distributing the song. The lawsuit claimed trademark infringement and dilution; dilution refers to the use of a trademark that is relatively similar to an existing famous mark causing consumer confusion.

The trial Court held that the song was unlikely to diminish the Barbie trademark. According to the Court, it was unlikely to allude consumers into believing that Mattel was affiliated with the song as the song was a parody, giving it protection under the First Amendment. Ultimately, when Warner Bros released the Barbie movie in 2023, Mattel prioritized not only the licensing of the Barbie marks, but also the usage of the quality of these marks’ by third parties.

Barbie vs Bratz: the trade secrets saga

One unfamed IP concept is that of trade secrets which refers to confidential information being bought and sold. In 2004, Mattel sued for misappropriation of their trade secrets by MGA (the brand that created Bratz) as they claimed one of their former doll designers had developed the idea for the Bratz dolls and allegedly taken this idea to MGA using the insider knowledge they had gained of the Barbie ecosystem. Mattel won the trial in 2008 and was awarded $100 million in damages which was then appealed by MGA, who went on to win the appeal. They claimed that it was Mattel who had allegedly misappropriated MGA’s trade secrets by committing corporate espionage on their marketing plans and planned product concepts. MGA received $85 million in damages, at which point both sides had ended up spending over $100 million in legal fees.

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Film rights to Barbie

With regard to the film, there exist film rights which are rights under copyright law that allow a film-maker to create a film based on an existing property or idea. Entertainment mogul, The Warner Brothers Company currently enjoys the film rights to Barbie as they were the ones to pursue the film’s creation. Prior to this, Sony intended to create the Barbie movie for release in June 2018. However, their rights expired in in 2019 as writers Amy Schumer and Kim Caramele were undecided on the direction the movie should take. This is where the Warner Brothers stepped in to push forth the live-action film which generated for them a $1.5 billion profit.

Mattel’s Barbie brand is protected by a raft of IP rights. It is evident that with the heightened attention to the Barbie brand following the release of the Barbie movie, Mattel is not only benefitting from stringent IP protection but given its history, is similarly likely to be cautious in pursing intellectual property litigation for the use of their name, logo and colour.

Oppenheimer’s impact on patents and legislation

Christopher Nolan’s highest-grossing biopic, Oppenheimer, has piqued the interest of many viewers to delve deeper into the details of the Trinity Test and the aftermath of the Japanese bombings. What may be unknown to many is that Dr. Oppenheimer and his team at Los Alamos filed for several patents which would cover aspects of the technologies used to create the atomic bomb including a ‘neutronic reactor’ and a ‘low impedance switch’.

Patent protection for the Manhattan Project

Patents are a prominent form of IP protection that cover new inventions and allow the owner to pursue legal actions against those who use their inventions without their permission. They played a key role during the Manhattan Project; the U.S. Department of Energy filed several patent applications to the Patent Office during the Project. These applications were being directed to a secret division in Virginia because patenting atomic bomb technology presented obvious security concerns. More importantly, the threat of espionage created fear that other nations would deduce that the United States was developing a bomb. They would be stamped secretly and secured in one of the patent office’s vaults, and remain classified until later in the 1950s.

Without the use of this process, the security of the Manhattan Project would have been undermined, as each patent application laid out all the workings of each technology using terms that other engineers could potentially replicate. To further protect its security during the Project creation process, all of the information was disguised with code names to prevent any replications.

When the U.S. Congress became aware of the patent filings during a 1946 Congressional hearing, Captain Robert A. Lavender testified that they were seeking patent protection to avoid any other inventors filing speculative patents which had the potential to impede the U.S. Government from using atomic technology. Today under the U.S. quid-pro-quo law, ‘how to build an atomic bomb’ is publicly available.

Oppenheimer: A ‘loyal citizen’?

A predominant portion of the storyline of the movie focused on Oppenheimer’s security hearing. A total of 24 charges were brought against him. These were twofold: the majority claimed that he was associated with communists during WWII and had subsequently given conflicting testimony to the FBI. The secondary charges held that he consistently opposed the atomic bomb’s development, contesting it even when President Truman ordered them to continue with the Project. Ultimately, he was declared a ‘loyal citizen’, however, a 2-1 majority revoked his Atomic Energy Commission security clearance.

The impact of the bombings in Japan paved the way for new legal frameworks surrounding atomic weapons. This prompted other nations to recognise the need for control over their own atomic weapons after learning of the destructive consequences of those used in Japan. This led to the creation of the Non-Proliferation Treaty which intended to cease the Nuclear Arms Race and segregated countries into ‘Nuclear Weapon States’ and ’Non-Nuclear Weapon States’. This treaty set an international precedent for cooperation between the two categories of states.

The creation of these atomic devices required existing legislation to be amended to accommodate it. The complexities of nuclear information required the Espionage Act of 1917 to be amended to cover atomic energy information and forbidden informational categories. Acts such as the Defence Act 1911 which regulated government secrets no longer sufficed in encompassing the complexities of nuclear information.

Conclusion

Several legal lessons can be taken away from both movies. The dogged persistence of Mattel in protecting its rights to Barbie, emphasises the importance of IP rights in protecting a well-reputed brand. Oppenheimer’s atomic inventions created the need for an unprecedented legal paradigm. It is not only exciting for the public to get two blockbusters on the same day, but can also create a legally significant impact on the entertainment industry — one which can be fascinating to uncover.

Shinelle Leo is a first-year LLB student at The University of Manchester with a keen interest in intellectual property especially with matters concerning the entertainment industry.

The Legal Cheek Journal is sponsored by LPC Law.

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Ahead of this week’s virtual event, Ashurst’s UK Head of IP and Digital Economy partner, Sunny Kumar, discusses his varied career and how his passion now lies with IP law

Ashurst’s Sunny Kumar joined the firm as a consultant in January of this year, with plans to leave after six months. But his plans quickly changed. “I instantly felt drawn to the Digital Economy team and what they offered me as an intellectual property lawyer”, says Kumar who now heads up the office’s busy IP team.

Discussing what the Digital Economy team’s work entails, Kumar tells me that it “focuses on businesses which have tech at their core”. The team itself is composed of five divisions — digital infrastructure, commercial contracts, IP, data protection and fintech, with each of these headed up by a partner. He reveals that one of the team’s biggest clients is Meta, and that he’s recently been appointed as IP counsel on the Meta panel.

Ashurst

One of the things Kumar enjoys about the Digital Economy team is the opportunity for crossover with IP — “a tech-driven client might want our expertise on their complex IP licensing matters but simultaneously have questions concerning service contracts and laying undersea cables for wireless connections”, he details. While a lot of other firms would approach this by putting members from individual IP, corporate and TMT teams together, Kumar points out that having a Digital Economy team allows for a more integrated approach. “We can service all of these needs as one team comprised of like-minded peers who understand both the tech, legal and regulatory elements”, he details.

Applications for Ashurst’s Winter Vacation Scheme 2023 are now open and close on 29 September 2023

It’s not just the Digital Economy team that prompted Kumar’s decision to stay on, but the culture at Ashurst as well. “As a firm we are very entrepreneurial. We have the opportunity to go and make something of ourselves with the support of the firm,” he notes. Kumar came to Ashurst because the firm wanted to expand its IP offering in London and globally, which presented an exciting opportunity for him. “The partnership is exceptionally collaborative with a great mix of younger energy coupled with deep sector expertise, meaning great ideas and solutions come out of it”, he explains.

As the firm’s UK Head of IP, Kumar doesn’t just work with clients just in the Digital Economy team, but has a broader involvement, also covering work with clients in the life sciences sector, something of special interest to him given his background as a scientist. He often advises clients on their complex copyright and brand-related matters too, something he really enjoys, having first experienced such work during his time as an in-house lawyer at the BBC. IP disputes in this area are at the cutting edge given the use of generative AI tools and the metaverse, which throw up all sorts of copyright and brands-related issues. Disputes in this area is something he is advising more regularly on, Kumar tells me.

Seeking a new challenge and feeling it was time to move on, Kumar shifted from the world of science to law. Confessing this wasn’t entirely out of the blue, Kumar says, “I come from a family of lawyers, my grandfather was a lawyer and my brother is too”. Given his strong science background, the attraction to IP law was only natural. However, for those seeking to establish themselves in an IP practice, “science degrees aren’t necessarily important — there’s more to IP than just life sciences”, Kumar clarifies. His main draw to IP right from his training contract, through to his time at the BBC and then in City law came from the practice area’s broad scope. “I felt straightaway that working as an IP lawyer meant working in a practice area which contributed to the future, and this excited me”, he recalls.

Applications for Ashurst’s Summer Vacation Scheme 2024 open on 2 October 2023 and close on 5 January 2024

I also asked Kumar on the differences between an in-house and a City law practice, given his experience in both. “I think a lot of people see in-house as an easier option. I completely disagree with that”, he says candidly. “When you’re working in-house, you only have one client to service, the business, rather than having several external clients, as you would in a law firm. But you have to keep in mind that people in the business will go home around 6pm. So every instruction, document and input required or needing to be actioned needs to be done between 9am and 5:30pm, and so it can get incredibly pressurised during that time frame. This is something private practice lawyers are often (but not always) immune from”.

Kumar contrasts this with life at a law firm, where you have the ability to spread the pressure over longer hours. There’s also a distinction in the type of work on offer, with Kumar noting that working in-house entails a “stronger connect to the heart of the business, having inputs on commercial decisions and strategy”.

Hence, while working in-house often requires providing quick advice to the business, Kumar says he prefers the belt and braces approach followed in a City law firm. “I enjoy having the time to explore a matter in-depth and provide clients with more considered advice on often complex matters which inhouse teams may not always have the bandwidth for”, he notes. “I also missed the variety of work, being able to apply my knowledge across different sectors”.

Applications for Ashurst’s London Training Contract September 2026 and March 2027 open on 8 January 2024 and close on 29 March 2024

Drawing on the theme of Legal Cheek’s virtual event in partnership with Ashurst this week, I asked Kumar about the opportunities and challenges for businesses, given the increasing confluence between the physical and the digital economy.

“The main opportunity is that businesses are able to reach a larger number of consumers and customers, and do so in a quicker way. But alongside that, come the challenges of keeping up with and foreseeing the regulations governing business operations. Additionally, from an IP perspective, there’s also the question of how businesses can protect their copyright protected works and brands in an era of Web 3.0 (and probably 4.0!)”, details Kumar “While these are exciting times, the key aspect is to keep up with all the technological and regulatory (sometimes lack of) changes occurring.”

So, what advice does Kumar have for those seeking training contracts? His top tips are selectivity and proactivity. “Be considered in your search and apply to the right firms for the practice area that you are interested in,” he suggests. “Engage with those firms, attend insight days and speak to trainees and associates. Never feel like you can’t email HR and request to speak to a trainee or an Associate to help answer your questions so as to inform your decision making. Lawyers may be busy and take time to respond, but most of the time, we will get back to you”, he assures.

Sunny Kumar will be speaking at ‘Digital Economy – with Ashurst’ a virtual student event taking place this Thursday (14 September). Apply now.

Applications for Ashurst’s Winter Vacation Scheme 2023 are now open and close on 29 September 2023

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Music of many genres relies on a shared language and a set of basic tools to be understood by its listeners. Indeed, music academics have noted that music without a certain amount of “redundancy”, created by features common to many songs, often alienates listeners.

 How, then, should songwriters continue to create when essential elements of their shared musical language are being claimed under copyright? This is the issue at the crux of debates around how music copyright needs to adapt in the digital age.  This was most recently illustrated in the High Court battle between chart-topping singer Ed Sheeran and singer-songwriter Ed Townsend’s heirs, who alleged that Sheeran had infringed copyright in his popular ballad Thinking Out Loud. This piece will explore the background to the case, before considering the implications that lie ahead for intellectual property and music law.

Background: The Ed Sheeran case

Townsend co-wrote the 1973 sexual liberation anthem Let’s Get it On with American R&B and soul singer Marvin Gaye, and it was Townsend’s estate and rights holders who filed suits claiming that Sheeran copied the song in his track, Thinking Out Loud. These suits were filed in the US, so we will be discussing American copyright law.

There are two cases concerning Let’s Get it On and Thinking Out Loud. The focus of this article will be the second of these cases, brought by Townsend’s estate and his biological daughter, Kathryn Griffin Townsend. This case was tried in May 2023, although Griffin Townsend originally filed for copyright infringement in 2018. Sheeran sought to dismiss the case on the grounds that US copyright law only protects the sheet music of Let’s Get It On, that the songs are not sufficiently similar, that their shared elements constitute common musical elements, and that although Griffin Townsend is Townsend’s biological daughter, she was later adopted.

This plea of dismissal was rejected by Judge Stanton, for the reason that there were too many similarities to allow for “a judgement of non-infringement as a matter of law”. The trial concluded in May 2023, having been delayed by a similar case involving Led Zeppelin’s Stairway to Heaven and the Covid-19 pandemic.

There are several key issues in this case. For starters, the two songs are under different copyright laws. Let’s Get it On was released in 1973, so it is under the 1909 rather than the 1976 Copyright Act in the US. The 1909 Copyright Act required that a musical work be submitted to the US Copyright Office as a notated musical score, rather than as a recording. By contrast, the 1976 Copyright Act, which went into effect on 1 January 1978, does allow for the copyrighting of recordings. This meant that whilst jurors could listen to the Thinking Out Loud recording in the trial, they were only allowed to listen to a computer-generated recording of Let’s Get it On.

Moreover, it is not possible to copyright an idea, only its “tangible expression”. US copyright law specifies that copyright does not protect “any idea, procedure, process, system, method of operation, concept, [or] principle” embodied in the work. Proving copyright infringement rests on demonstrating that the defendant copied the work in question and that the copying was “improper”, meaning that the defendant copied a substantial amount of protected material. This can involve demonstrating that the defendant had reasonable access to the copied material and showing that there is a substantial degree of similarity between the works in question.

If these conditions are fulfilled, the defendant must prove that they did not copy the work, by relying on defences such as independent creation.

The arguments

Both sides employed musical experts to make technical arguments for and against infringement. The case for infringement focused on the similarity of a chord progression. The musical expert for the plaintiffs, Alexander Stewart, noted the similarity between the off-beat rhythm to which the chord progression is played in both songs. He claimed that the combination of this chord progression with the off-beat rhythm only occurs in one other song, an obscure cover of Georgy Girl from 1966. The plaintiff’s lawyer also played a video they termed a “smoking gun”, in which Sheeran performs the two songs in question as a mash-up.

Sheeran’s team vehemently argued against the claims of infringement. The defence drew upon musicological details and also capitalised on Sheeran’s personality. Indeed, whilst neither Gaye nor Townsend were alive to participate in the trial, Sheeran was able to take the stand, playing his guitar and singing.

There were three key points to the defence’s musicological argument:

Firstly, they argued that the chord progression was so generic that it was unprotectable by copyright. They claimed that it was a musical “building block”, and as such any musician could use it freely. Lawrence Ferrara, the defence’s musicologist, demonstrated this by citing the progression’s appearance in educational materials, such as “How to Play Rock ’n’ Roll Piano” (1967).

Secondly, the defence argued that the combination of the rhythm and chord progression was not unique, and Ferrara gave six examples to show this.

Thirdly, Sheeran demonstrated that there was a subtle difference between the two chord progressions. The second chord in Sheeran’s progression differs by one note to that in Let’s Get it On. Although these two chords have the same function in the progression, making them the musical equivalent of synonyms, this difference undermines the similarity.

The defence also addressed the issue of the mash-up video, noting that mash-ups are a frequent element of Sheeran’s live performances. Sheeran demonstrated this on the stand by performing Thinking Out Loud and moving through three different songs, including Shania Twain’s You’re Still the One and Bob Dylan’s Just Like a Woman.

Outcome and implications

The jury ruled in favour of Sheeran after three hours of deliberation. The Townsend family intends to appeal. This decision is important in the context of the recent rise in popular music copyright infringement cases. This rise could be due to developments in technology. On the broadest level, online streaming has made available not only millions of songs written today, but also a huge historical musical catalogue. This makes conscious copyright infringement easier and unconscious copyright infringement more likely.

Further, there is a growing trend in the integration and reuse of older artistic objects in digital culture. Another reason for the increasingly litigious atmosphere relates to the relatively recent market activity in catalogue ownership, driven by publishing houses such as Primary Wave. This means that publishing houses encourage their artists to use samples of the catalogues they own, thereby furthering a culture of repurposing and recycling in popular music. In addition, these publishing houses have motivations to bring lawsuits against artists they feel infringed on material they own.

Sheeran’s case is only the latest in a string of high-profile music copyright litigation that has emerged in recent times. Other notable cases include that brought by Gaye’s heirs against Robin Thicke and Pharrell Williams in 2015 (Gaye’s estate was eventually awarded $7.4 million in recuperative damages), and the accusations of copyright infringement levelled at Led Zeppelin and Katy Perry in 2020 and 2022 respectively (both successfully defended their cases). The rise in case numbers and the increasingly complex nature of such music copyright litigation pose several questions going forward.

Today, the most distinctive aspects of a song frequently rest in sound and production rather than melody or lyrics. Perhaps an amendment to the 1976 Copyright Act reflecting this would protect the features that are becoming the most original and characteristic part of songs, whilst allowing for a shared musical language. Secondly, we are living in a digital age where reusing and referencing other artistic materials is both easy and popular. Some have suggested that we need new legal frameworks to allow artists to benefit from this practice, rather than focusing on eradicating it.

 Katrina Toner is a composer and music graduate from Cambridge University. She is currently studying for a master’s degree at The Julliard School and is an aspiring lawyer.

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At the moment it seems like the whole world is shocked to discover the colossal leap artificial intelligence (‘AI’) has made, since the release of ‘ChatGPT’ by the Elon Musk-founded company OpenAI last month.

I asked the newly-released software what effect it thinks AI will have on UK copyright law, and this is what it had to say:

“It is difficult to predict the exact impact that AI will have on copyright law in the UK. However, it is likely that the use of AI in creative industries, such as music and art, will raise questions about the ownership of works created by AI. There may also be discussions about whether AI itself can hold copyrights for works it creates. It is possible that the UK government will need to update copyright laws to address these issues.”

I must stress there was no human involvement in the creation of that answer and it has not been edited. When computers are capable of creating coherent and reasonable answers to complex questions, it’s only a short step to their ability to author literary works of their own. This specific computer programme specialises in its understanding of language and has the potential to change the face of many industries. It follows OpenAI’s previous AI image generator, ‘DALL-E 2’, which was capable of instantly generating artwork including photo-realistic images based on user prompts.

Copyright laws allow the creator of a work to be the sole owner of that work, therefore they have the sole rights to sell or reproduce their idea. These rights can be claimed by the author of the work under section 9 of the Copyright, Designs and Patents Act 1988 (‘CDPA’) which describes an author as the person who “created” the work. This work could be: literary work (e.g. a book or script), entrepreneurial work (e.g. a film or sound recording), or other works which are detailed in the Act. The Act itself considers in the instance of a literary work being computer-generated “the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.” This is a confusing assortment of words that essentially means the author of a work written by an AI will be the writer of the prompt that encouraged the AI to write it.

Different categories of copyright works have different requirements to be protected. For example, entrepreneurial works have no requirement for originality, in contrast to literary works which section 1 CDPA requires are “original”. The meaning of original is undefined in the Act but is understood to mean the original work of the author — this conflicts with the provisions under section 9 which allow the author to take credit for the computer-generated work in spite of it not being their own work.

Some suggest it would be a logical solution for a computer-generated work to be held separately to a human-written piece as an entrepreneurial work as opposed to a literary one. This would be similar to how the law treats sound recordings and musical copyright which are substantially the same but with a difference in authorship requirements and, consequently, a difference in the level of protection afforded to them.

Whilst others question whether AI-created works should be entitled to copyright protection at all. Eventually, this school of thought boils down to understanding the fundamental purpose of intellectual property law. Ultimately, when a human protects their work this is because they want to be the sole beneficiary of the products of their own time, effort and imagination. A computer-generated text, song or artwork does not derive from the same process, consequently, why should it be afforded the same protection?

On the other side of the coin, the implications of AI are not limited to computer-generated literature flooding the shelves of bookshops and AI art hanging on the walls of the Louvre. Machine learning algorithms are already being implemented by companies such as YouTube to automate the process of copyright enforcement. These algorithms can quickly and accurately scan vast amounts of content, comparing it against known copyrighted works to identify potential infringements. This has made it easier for copyright holders to enforce their rights and protect their works from unauthorised use, but has also raised concerns about the potential for false positives and other errors in the process.

Overall, the impact of AI on copyright is clearly complex and multi-faceted. While the technology has brought about many positive changes, including making it easier to identify and enforce copyright infringement, it has also raised a number of challenging legal and ethical issues. As AI continues to advance and become more widely adopted, it is obvious that these issues will continue to evolve.

The UK is in the minority when it comes to recognising the early potential for the composition of copyright works without the need for a human author and legislating on it. Many other jurisdictions, such as the USA, will have issues with this growing technology now the public have free access to this tool. In the USA, for a copyright to be satisfied, cases have established the work must be created by a human author using a modicum of creativity. It’s hard to say which approach will stand the test of time but it is obvious that the foundations have been laid for a new normal for creative industries.

Jonathan Binns is an aspiring barrister and recent law graduate, currently undertaking the BPC at The University of Law, Leeds.

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The rise of artificial intelligence, important developments on FRAND (fair, reasonable, and non-discriminatory) terms, and the eagerly anticipated inauguration of the Unified Patent Court (UPC) all make it an interesting time to be a patent lawyer.

Indeed, the evolving nature of the legal discipline which wraps its fundamental legal principles around the world’s latest innovations is one of the reasons why Mark Marfé is so enamoured with his work.

“It’s really exciting going back to the basic legal principles and figuring out how they apply to new technologies,” Pinsent Masons partner Marfé explains. “You get to collaborate with technicians and engineers to work out what’s going on under the bonnet and also meet with business executives so that you can pragmatically assess the liability and whether there is a real opportunity in a new piece of tech.”

This also happens internally at a team level with his colleagues at Pinsent Masons, Marfé tells us. Members of the IP team regularly have ‘brown-bag lunches’ where discussions and training sessions take place about the latest developments in the sector.

We’ve already touched upon what some of those topics might be. Marfé explains how AI tools are now being used for a wide range of things from generating images from written prompts to AI robot inventors.

The former has raised new questions in relation to the rights attaching to the various in-puts and out-puts on these AI systems (a topic that Legal Cheek covered recently). The latter has yielded a Supreme Court case on whether an AI can be labelled the inventor on a patent, a case which could involve granting legal personhood to an AI system for the first time. The hearing is set to take place in March next year.

If you’re more interested in macro legal trends than AI, there’s something for you too. The launch of the Unified Patent Court, which the UK opted out of joining back in 2020, is set to launch in spring 2023. This marks a whole new set of patent jurisprudence with Marfé noting that “it will be interesting to see how the new case law sits alongside national patent decisions”.

Another area of recent development has been FRAND terms, with the Supreme Court ruling in Unwired Planet v Huawei seeking to find a balance between licensors and implementers. Such cases tend to involve so-called ‘patent trolls’, who own portfolios of patents, and implementers struggling to negotiate what fair and reasonable licensing terms might be for standard essential patents. “It’s particularly interesting to see how this will play out in IoT [Internet of Things] and how the use of arbitration will develop in this area,” remarks Marfé.

In short, it’s an exciting time to be an IP lawyer and the next decade certainly has a lot in store. So what does it take to break into the industry?

With a background in life sciences, having done his undergraduate degree in cellular and molecular pathology, Marfé’s enthusiasm for the innovative is perhaps unsurprising. But he stresses that it is the enthusiasm that counts rather than his STEM background per se: “You need to have an enthusiasm to learn in this field which is constantly developing”.

He especially enjoys the strategic element of advising clients, be that helping them grow their businesses or overseeing and guiding them through a dispute. “The variety is great and you also get to work with interesting people on international projects”, says Marfé, who confesses being “hooked” on IP from the moment he worked on a matter involving Blackberry during his training contract.

As for skills a budding IP lawyer must possess, Marfé points to flexibility, an eye for detail, both commercial and legal knowledge, and good project management.

Of course it helps that the team at Pinsent Masons is “a very collaborative and interesting group of people, who enjoy collegiately sharing ideas and acting as a soundboard on the latest developments and enabling each other to be at their best”, says Marfé.

Mark Marfé will be speaking alongside other Pinsent Masons lawyers at ‘Going for growth: hot practice areas of the 2020s — with Pinsent Masons’, a virtual student event taking place tomorrow (Wednesday 30 November). You can apply for one of the final few (and free) places to attend the event.

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Gregory Bacon, partner and patent litigation specialist at Bristows, is well-placed to discuss a career change from science to law. He completed a PhD in neuroscience at Oxford University and spent time as postdoctoral researcher at King’s College London.

Intellectual property is often considered one of the areas of law most accessible to those with a background in science, technology, engineering and mathematics (STEM). The highly technical nature of projects in this area offers an array of challenges for those with puzzle-oriented minds.

Bristows represents huge clients at the cutting-edge of the science and technology sector, working with mega-brands like Google, Facebook and Samsung. They also have an impressive life sciences client base and the firm worked with AstraZeneca and Oxford University on their Covid jab during the pandemic. Bringing new products and technologies to the commercial market can be a difficult process and Bacon specialises in helping clients navigate disputes over their patents.

He describes a case he is currently working on for a drug developed and licensed to treat multiple sclerosis, a lifelong condition affecting the brain and spinal cord. “Treatments available still don’t cure the disease, but they can significantly reduce underlying autoimmune reactions and slow disease progression,” he explains. “My client, a pharmaceutical company, developed and sells one of these treatments. Earlier this year, we made some new case law in relation to patent rights in the UK for that product, and whether these can be asserted before the patent is granted.” Being an effective lawyer means coming up with solutions for your client, including sometimes ones that have not been tried before. Another case Bacon is working on involves a dispute between two pharmaceutical companies as to whether contractual royalties are payable in relation to a product that is licensed and sold by one of them for the treatment of rare forms of childhood epilepsy.

“Whilst a STEM background is not a requirement to be a good patent lawyer”, Bacon continues, “it helps to have a basic grounding of scientific knowledge.” He is quick to point out that the niche knowledge from his PhD is often not as helpful as the ability to interpret evidence. “Being able to take data and understand it is key. For example, you need to be able to read scientific literature and understand how the information in that article can support your case or maybe actually supports the other side’s case!” Bacon says.

Enthusiasm for learning about technology is also an important quality for this kind of work, which is often something that STEM students develop through their studies. He says:

“You need to want to keep learning about the technology as well as about the law. So when you get a new project on a chemical you’ve never heard of before or an interaction with an organ that you’ve never dealt with before, you think this sounds really interesting — I want to get to know more!”

Bacon acknowledges that his transition from science into law is made more unusual by his direct route. “Strangely, I didn’t go for a vacation scheme, I went straight for a training contract. I was offered an interview here at Bristows 20 years ago, and the interview went well.” After accepting their offer of a job and completing his conversion course, Bacon started his training contract with the firm. “I just loved every aspect of it, every seat!” he reveals. But his interest in patent law had already taken root and after qualifying, he was offered a permanent position in their patents team.

After twenty years with Bristows, Bacon’s enthusiasm for what he does has in no way diminished. He describes finding an unexpected source of enjoyment in the management responsibilities that come with being a partner. “It is quite an unusual step to go from not having any management responsibilities to having almost the full suite of management responsibilities,” he explains. “It brings with it a whole host of extra skills that you have to have to develop to be a partner. After eight or ten years of your post-qualification career, you take on all these new responsibilities: training junior colleagues, recruitment, winning client pitches and keeping clients happy. I think I enjoy this almost as much as doing the fee-earning work for the clients.”

This split between his responsibilities as a fee earner and as a partner is also something that characterises his daily work. “My day is split around 70:30. Seventy percent of my time is spent doing legal work, calls with clients, deciding on strategy, drafting documents, preparing cases for court, reading technical documents and speaking with international lawyers. Then the remainder of my time is involved in the management of the group, my department, and the wider firm. This includes ensuring my junior colleagues have enough work and they’re getting enough exposure to the right levels of work. And some general admin of course!”

Considering his own career journey, what advice would he give to students looking at making the transition from STEM to law?

“Do your research,” Bacon stresses. “Try and go to an open day or a law fair. If you can really get to see the firm as it operates behind the scenes, you’ll get a better feel for what the job looks like. That’s important because if you’re a STEM student, you’re looking at around a four-year process before you’re qualified as a solicitor, and you’ve got something to show for all that work. So do the research and make sure it is something you want to invest four years of your time into.”

Gregory Bacon will be speaking at ‘STEM Focus: Life as an intellectual property lawyer — with Bristows’, a virtual student event taking place on Thursday 20 October. You can apply to attend the event, which is free, now.

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The UK Supreme Court has granted permission to hear Dr Stephen Thaler’s challenge to the UK Intellectual Property Office’s (UKIPO) decision not to allow two of his patent applications to list the AI creativity machine DABUS as the inventor.

In 2018, Thaler, who is a physicist and engineer, filed patents in several jurisdictions including the UK for two new inventions, the neural flame and the fractal container.

In these applications, Thaler is listed as the owner of the patents whilst his AI creativity machine known as DABUS is listed as the inventor. This is because he believes that DABUS has independently produced novel inventions.

The UK’s top court is expected to consider whether DABUS falls within section 7(3) of the UK Patents Act 1977 definition of an inventor (“the actual deviser of the invention”) and issue guidance on how this impacts who owns the patents in light of section 13(2) which provides that the default situation is that the inventor is the owner of the patent unless it is assigned to another entity.

If found to fall within the definition under section 7(3), the justices will be invited to consider whether an AI robot can be considered a legal person for the purpose of assigning ownership to Thaler. If successful, this would be the first meaningful example of when a robot being granted legal personhood in the world.

Thaler’s challenge was rejected by a majority in the Court of Appeal, upholding the UKIPO and High Court’s previous conclusions that “only persons can be inventors”. However, in his strong dissenting judgment Briss LJ held: “The fact that the creator of the inventions in this case was a machine is no impediment to patents being granted to this applicant”.

The UKIPO did not propose any changes to the law concerning AI-devised inventions in its response to a consultation on Artificial Intelligence and Intellectual Property published in June.

The Supreme Court’s decision is likely to be of international significance. Thaler has been working with an international team of patent lawyers to launch claims in jurisdictions across the world. His efforts thus far have enjoyed little success with his only major victory in the Federal Court of Australia last year being unanimously overturned in April by the country’s Full Court of the Federal Court.

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In 2018, the High Court made a decision about halloumi that was hard for Cyprus to swallow. “I am reading through the case over and over again and I cannot comprehend how such a serious mistake could have taken place,” exclaimed Yiorgos Lakkotrypis, minister of commerce, industry and tourism for the Republic of Cyprus.

A bureaucratic blunder saw applications to invalidate or revoke the Cypriot government’s 2002 trademark of the word ‘Halloumi’ filed by the British halloumi importer and retailer John & Pascalis upheld by the court, after the Cypriot government did not provide the necessary paperwork within the two-month deadline.

But why did this ruling mark, as opposition parties termed it, “another black page in the history of Cypriot halloumi”?

Halloumi is the proverbial big cheese in Cyprus. Exports of the island’s ‘white gold’ were worth €270 million (£229 million) in 2020, €115 million of which were sold to British importers, making it one of nation’s most valuable exports. It is forecast to nearly double in value by 2027.

For this reason, the government and The Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi (hereafter referred to as the Halloumi Foundation), an organisation that aims to protect and promote Cypriot halloumi, have fiercely battled for any IP rights they can obtain to protect this interest, especially in the UK.

The Ministry of Commerce has registered trademarks for the word ‘Halloumi’ in Canada, Jordan and the UK (where it was successfully re-registered in 2020), whilst the Halloumi Foundation holds a collective trademark registered by European Union Intellectual Property Office (EUIPO). Trademarks protect the use of the term ‘Halloumi’, which is used by its holders to ensure competitors making their products outside Cyprus cannot call their cheeses ‘Halloumi’. The aim of the collective trademark is a little different. This mark indicates that the cheese originates from members of the Halloumi Foundation.

These marks have proved somewhat limited and ineffective with a series of defeats in the European Courts related to challenging the marks ‘GRILLOUMI’ and ‘BBQLOUMI’, although the collective mark has been more successful in English courts. In short, ‘Halloumi’ is not really functioning as an effective trademark because of the generic use of the term. The fact that the Turkish equivalent term Hellim may be used offers a further loophole.

However, a better form of IP protection exists. Launched in 1996, the EU’s developed of several copyright protection schemes for ‘origin foods’. There are two types: protected designation of origin (PDO) and protected geographical indication (PGI). These schemes limit the use of a certified product’s name to a group of regional producers. This neatly achieves Cyprus’s objectives, providing a tighter grasp on its brand owing to its historical ties with the cheese rather than leaving it to struggle with the genericness problem and other vulnerabilities trademarks presented.

But there’s a catch. Once obtained, a product must be produced in accordance with its traditional recipe and ingredients. Producers who do not comply lose the label. A comparable situation with Feta cheese also underlined that historical connection between the place and the product (evidence of the products significance in its laws, press, traditional practices and so on), as well as current domestic market size and national legal status, is also vital in order to avoid the same risk of genericness we have observed in trademarks.

After its first failed attempt at registration in 2009, Cyprus’s halloumi cheese was eventually granted PDO status on 12 April 2021. These laws sound great, right? But to conclude so, to my mind, misses the bigger picture. It is clear that the EU’s origin foods system is, to a certain extent, artificial and hypocritical.

It is artificial because it fosters the idea that certain foods have a historical authenticity. As Gisela Welz points out, “taking the perspective of social anthropology, one has to contend that halloumi, or hellim, is a cheese that does not belong to any one ethnic group or nation alone”. Even discounting the issue of the academic truth that Halloumi is Cyprus’s cultural property, the idea that halloumi is traditional does not really stand up. Back in the 1960s, the traditional notion of halloumi was more realistic — it was primarily produced by agrarian households for subsistence. Since the effects of globalisation created a market for niche authentic products that have been able to go mainstream, the dairy industry in Cyprus has transformed halloumi production from non-commercial agrarian households to a handful of mass-market producers.

This is the root of the current problem the island is experiencing with its PDO. Halloumi was traditionally made by either goat’s milk or a mixture of sheep and goat’s milk. Since the British first brought dairy cows on a large scale to Cyprus in the 1960s, cow’s milk started to be used to cut costs. However, in order to be labelled as a PDO protected product, the halloumi must be made from at least 51% sheep and/or goat’s milk. This has caused uproar. Since cow’s milk is cheaper than sheep and goat’s milk, producers have shifted their recipes to predominantly cow’s milk, in some cases as much as 90% cow’s milk. It would appear that Cyprus has tied its own hands by forcing itself to buy into the false notion of traditional and authentic origin foods when, as Welz argues, the product now only has “a resemblance of traditionality”.

Despite this apparent lack of authenticity, recognising IP rights in an ‘origin food’ also involves acknowledging a nation’s claim over a certain food. Accordingly, such claims normally have political ramifications and boost particular nationalist narratives. This has been striking in the case of halloumi which has been intertwined with the island’s Greek-Turkish tension. Since the 1974 Turkish invasion of Cyprus, the island has been split by the Green Line with Turkish Cypriots in the north and Greek Cypriots in the south. Following Cyprus’s accession to the EU in 2004, Northern Cyprus suspended EU regulations. Today, Turkey only recognises Northern Cyprus and not the government of the Republic of Cyprus.

PDO status was initially used by Greek Cypriots to have the EU recognise halloumi as exclusively theirs. This was the cause for the failure of the 2009 PDO application. The EU then openly attempted to use the PDO as leverage to aid the reunification process which has made a point of including Turkish Cypriot producers in Northern Cyprus. Although admirable in this atypical case, the EU’s efforts for reunification seem to have made little progress and may even be considered counterproductive. The EU is not the only example of this problem — one can say the same of UNESCO’s Convention for the Safeguarding of Intangible Cultural Heritage.

These schemes force international organisations such as the EU and UNESCO to occup a “contradictory position […] in the international system”. As Atsuko Ichijo and Ronald Ranta have pointed out, on the one hand, international organisations act in a manner that constrains nationalist forces and state power by promoting free trade, universal regulations and so on. On the other hand, international schemes that provide ‘origin foods’ IP rights lead international organisations “to support the nation-state domestically, in its pursuit of cultural nationalism, and globally, by supporting national claims of food ownership”. This is the hypocrisy of such rights.

So, if you happen to have enjoyed or intend on enjoying some grilled halloumi during the heatwave, spare a thought for what these problematic IP laws represent and how they have fostered new tensions on the island where it was produced.

Will Holmes is reporter at Legal Cheek and a future trainee solicitor at a magic circle law firm.

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Recently, legal education providers and those responsible for training the solicitors of the future have, quite rightly, focused their attention on the introduction of the new Solicitors Qualifying Exam (SQE). Inevitably, less attention has been given to the post-SQE training needs of this cohort.

But what should junior lawyers expect from post-qualification training opportunities offered by their employer to upskill them for specialist areas of practice?

Filling gaps in post-qualification education and training is not new, however, and is something that Nottingham Law School, renowned for excellence in legal education, has been doing for years.

In this article, Joy Davies, a principal lecturer at Nottingham Law School, explains her approach to supporting newly qualified (NQ) legal professionals needing to accelerate their specialist learning in the context of intellectual property (IP) law — a subject that is popular with undergraduate law students and significantly important in the business world.

The importance of IP law

IP law is everywhere. It protects key aspects of most business sectors therefore both lawyers and their clients need to possess a significant understanding of IP rights.

The practice of designing courses to produce accelerated specialist knowledge in the field of IP for qualified lawyers has existed for 20 years. One of the reasons for this is that the protection and exploitation of IP rights has become a significant discipline of many solicitors’ practices. That said, the growing importance of IP for lawyers and their clients is not matched by the pre-qualification IP education available to solicitors, barristers, paralegals and other professionals.

At undergraduate level, IP modules tend to be elective and short and of necessity the treatment of the subject is light. IP does not feature in the core compulsory modules on the LPC or BTC, neither does it feature as a subject area in SQE1 and SQE2. Post qualification, IP is taught by “on the job” experience, sometimes supplemented by short courses.

Such courses have generally followed traditional teaching methods and compartmentalised the categories of intellectual property (copyright, trade marks, patents, design rights and product design), sometimes leading to duplication and lack of clarity for the learner.

This approach is not helpful for the inexperienced professional who needs to upskill quickly. Instead, courses are needed that fit the reality of life as a junior lawyer — something that Nottingham Law School’s innovative online Postgraduate Diploma in Commercial Intellectual Property (the PgDipCIP) certainly achieves.

The example of the newly qualified solicitor

The SQE 1 and 2 assessment regime focuses on equipping successful candidates with the skills to know where to look, what to consider and how to structure; to reflect on the depth of their knowledge and develop their skill and judgement. The development of any other skills depends on the aspirations of the NQ solicitor and those of the firms and entities in which they will practise.

Let us look at the example of a hypothetical day one qualified solicitor: Rhodri from Llanelli. Rhodri is 24 years old, a law graduate, and has just successfully completed his qualifying work experience (QWE) and the SQE 1 and 2 assessments. His QWE comprised 12 months with a high street firm and 12 months with a commercial firm in Llanelli.

Rhodri aspires to become a specialist in commercial IP and has, on qualification, joined the IP team of an international law firm in Cardiff. He has no experience of IP in practice. Rhodri needs to develop his knowledge and skills rapidly into thinking like an IP lawyer with a view to becoming an experienced, pragmatic, and mature specialist.

How does Rhodri’s new firm achieve an effective contribution from him to the work of an IP team?

Nottingham Law School’s approach is to provide him with an accessible, reliable means of accelerated learning which acknowledges the stresses of being newly qualified.

Research by Nottingham Law School’s Professor Jane Ching, into the experiences of 0-3 years post-qualified litigation solicitors has shown that:

• “The picture emerging, then is one of individuals at a difficult transitional stage titrating between issues of status and survival in a context where new and perhaps unexpected expectations and responsibilities had suddenly arisen…”

• “The need to survive and pressures on their time produced a very strategic approach to Continuing Professional Development (CPD) activity in particular, including strong opinions about relevance, delivery and level. Choice of CPD activity might be opportunistic, based on compliance or defined by the employer.”

• In the context of aspirations, “Whilst reflection was common, without help, it tended to be retrospective and arose only once an opportunity for application has arisen…”

The PgDipCIP has been specifically designed with these findings in mind.

What will the PgDipCIP give the learner?

The PgDipCIP is designed to develop NQ lawyers, paralegals and others into knowledgeable and reflective practitioners in the specialist field of commercial intellectual property.

The intended aims and main outcomes are:

(i) Confidence: The learner will be confident that by developing an understanding of the theories underpinning IP law, they will begin to think like an IP lawyer and will have studied, explored and developed into knowledgeable specialists with experience in commercial IP practice;

(ii) Reflection: Using the tools for reflection, the learner will build on their knowledge and experience by developing into reflective practitioners inculcating the concept of lifelong learning. The learner is encouraged to reflect upon what they are doing and to evidence it by articulating their reflections into a cycle that is meaningful to them for now and in the future.

(iii) Flexibility: The course is offered online with minimum tutor intervention. The learner will say when, where, and for how long they will study. The course designers have ensured the course is relevant, up to date and practical.

Conclusion

Legal education has moved on and broadened its horizons. In acknowledgement of this changing landscape, the design and delivery of courses to achieve accelerated knowledge in a particular discipline needs to ensure that they are accessible for everyone, not just lawyers.

Therefore, if — or when — you are a junior professional seeking to upskill in a specialist area, look out for these design qualities when choosing your next course.

Joy Davies will be speaking at LegalEdCon 2022, Legal Cheek’s annual future of legal education and training conference, which takes place in-person next week, on Thursday 12 May at Kings Place, London. Final release tickets are available to purchase.

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In his 1929 presentation to the Royal Society of Arts, the artist Tom Purvis concluded: “we hear lots of talk about artists not being business men; but what I should feel grateful for, and I think commerce would benefit greatly by, would be more business men who were artists; that is to say, let us have more artistic understanding in commerce and there will be much more commerce in art”.

Almost a century later, the business world has become acutely conscious of art’s commercial use. The metaverse, a virtual 3D space in which individuals can interact with one another, is one of the most daring examples of this. But, I wonder what Purvis, who is famous for combining the artistic and the commercial in his eye-catching advertising posters, would have thought of the metaverse? Would he perhaps feel that business had been carried away by the artistic?

When doing business in the metaverse, it is worth asking what you really own. Andres Guadamuz’s excellent blog underlines the importance of considering the terms and conditions of a metaverse provider’s licencing agreement when figuring out what you own in a virtual world. He sketches out three broad scenarios.

The first is a platform model, where the company providing the service owns everything in the virtual world. The second is a more generous version of the platform model, where the service provider allows users to own what they purchase or create in the metaverse. This has been adopted by Second Life which grants its metaverse users rights in the front-end code and content they own or create, whilst retaining rights to the back-end code. And the third is a community model, where the users own everything in the metaverse and a user’s stake is determined by their possession of digital tokens. As Guadamuz points out, the first two categories dominate at the moment, whilst the third model is the end-goal for ‘Web3’ virtual worlds, like Decentraland and Axie Infinity. In short, the contents of the end user licence agreement lay out the basic limits of what can be owned in the metaverse.

This means picking the virtual world with the right licence agreement is essential. The prospect of owing digital property in virtual worlds (combined with the frenzy for NFTs) is driving the interest of the likes of JP Morgan. And the American banking titan wants to take it even further. It reports that “the virtual real estate market could start seeing services much like in the physical world, including credit, mortgages and rental agreements”. But how realistic are JP Morgan’s hopes of applying land law to digital property? Well, the ground seems a little shakier regarding the legal status of this ‘property’.

English courts are steadily developing a patchwork approach to ‘virtual property’. Recent case law (following the initial precedent set in AA v Persons Unknown) has seen cryptoassets recognised as property for the purposes of the Proceeds of Crime Act 2002 (DPP v Breidis and Reskajs) and being deemed capable of forming the subject matter of a trust (Wang v Darby). However, it is not a clean sweep with the digital currency Bitcoin being considered too volatile to be used as security for a defendant’s costs (Tulip Trading Ltd v Bitcoin Association for BSV and Others). This could have ramifications for the risks in relation to the issuance of legal mortgages that JP Morgan hopes to take over digital assets in a volatile virtual real estate market. As Gilead Cooper QC indicates, commercial interest may drive the need for a more coherent and comprehensive legislative structure in the future (as Cooper puts it, a “Law of Virtual Property Act” of sorts).

Intellectual property, however, provides a more developed approach to property in the metaverse. This month has seen the luxury fashion brand Jonathan Simkhai release their 2022 collection in Second Life and Roblox recently ran its first Annual Paris World Fashion Show, spearheaded by Paris Hilton. Decentraland has also announced a four-day fashion week that will take place in March. These events have also attracted advertising such as Boohoo who recently bought rights to advertise on virtual billboards at the Paris World Fashion Show.

You can tell a lot about the commercial ambitions for the metaverse from trademark applications. Take RTFKT, the digital collectables company that sold over $3 million worth of virtual sneakers in less than five minutes and was acquired by Nike in December 2021. Its trademark applications include an array of virtual sports clothing, fashionwear and equipment.

But more interestingly, they also cater for the possibility of cross-selling physical goods, filing for protection over “custom manufacture and custom 3D printing” for many of these items. Furthermore, they seem to share JP Morgan’s mindset to some extent, demonstrated by applications for trademark rights which allow for the “leasing of digital content [… and] leasing of reproduction rights of digital content”. It is also clear from Nike’s redrafting of its trademark applications, which now explicitly state the desire for protection against “counterfeiting, tampering, and diversion”, that there will be pressure on metaverse providers to police and actively enforce these rights.

Another angle that is appealing to metaverse users is obtaining IP rights over their avatars. This is not unprecedented. In 2008, Alyssa LaRoche successfully trademarked her Second Life avatar ‘Aimee Weber’. You might also seek to copyright your avatar, given the success some have had in copyrighting fictional characters in certain jurisdictions. Notably, in the US the Batmobile, Mickey Mouse, Donald Duck and Sherlock Holmes (which has seen recent litigation over the Netflix film Enola Holmes) have all enjoyed copyright protection.

Based on this influential US jurisprudence, there are broadly two legal hurdles to be overcome. First, the character must be central to the story more than just “vehicles for the story told”. Accordingly, in Warner Bros. v Columbia Broadcast Systems the main character Sam Spade did not receive copyright protection, but in Universal City Studios v Kamar Industries, the character E.T. in Steven Spielberg’s film was copyrightable. Second, the character must be sufficiently distinctive. As the judge noted in Nichols v Universal Pictures, “the less developed the characters, the less they can be copyrighted”.

This is a whistle-stop tour of the commercial rights that are potentially available in the metaverse. But everything gets more complicated when we consider the wrongs of the metaverse. Reports of some users experiencing harassment and occurrences that would likely have incurred legal consequences if they were to have taken place in the real world, has left many wondering how tort or criminal law might apply to the metaverse, or if there may be some circumstances in which an avatar could be granted legal standing. Again, this is not a new question either specific to avatars (the 2008 incident where Ailin Grief who made her fortune buying and developing land in Second Life, saw an interview involving her 3D avatar ‘Anshe Chung’ derailed by a hacker who peppered the virtual set with images of “delicately-animated flying penises” for 15 minutes raised such concerns) or more generally in relation to online harms.

One option might be to grant avatars some form of legal personality. Questions of distinguishing the user and the avatar have arguably already been explored by existing company law (see, for example, how the courts distinguished between Mr Lee and his company in Lee v Lee’s Air Farming). A system which, similar to company registration, could be set up to allow users to register their avatars’ separate legal personality.

In some instances, common law could fill the gap. For example, the courts might consider broadening its definition of ‘the danger zone’ for primary victims (White v Chief Constable for South Yorkshire Police) for those suffering psychiatric injury as a result of interactions in the metaverse. Or they could treat a metaverse user as a secondary victim by expanding the means by which events can be perceived beyond the limited scope of one’s unaided senses as laid down in Alcock v Chief Constable of the South Yorkshire Police. But if there is neither standing nor any acknowledgement of agency between user and avatar is made, there will undoubtedly remain a potentially dangerous gap in the law.

Purvis believed art should be useful. “I claim that art today is being applied, and should be applied more definitely to human needs, and it is the type of art which helps to develop the nation’s prosperity”. It was profoundly interconnected with “life and progress”. Such an aesthetic perspective is undoubtedly a mantra that the entrepreneurial artists building the metaverse embody. But as we seek art’s utility, increasingly integrating it into our lives, we should also consider its rights and wrongs.

William Holmes is a future trainee solicitor at a magic circle law firm.

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On 15 April 2021 Marks & Spencer (M&S) launched legal action against Aldi, claiming that its ‘Cuthbert the Caterpillar’ cake infringes its trademarked ‘Colin the Caterpillar’ cake.

Everyone knows M&S’ Colin the Caterpillar cake — the so-called “national tasty treasure” was originally launched 30 years ago and has not significantly changed in design since 2004. Colin the Caterpillar is a popular, fun and favourite cake for any event, even weddings — my brother was in charge of choosing the cake for his wedding, and he chose two of M&S’ famous insect replicas. Yes, really.

Due to Colin’s popularity, M&S filed an application for a trademark for ‘Colin the Caterpillar’ in the United Kingdom and European Union on 8 October 2008, under class 30, which relates to various types of food. The application was later registered as a trademark in April 2009. This means that Colin the Caterpillar is a protected intellectual property right and M&S can bring an action for infringement to anyone else who attempts to use this trademark. Since M&S began selling Colin the Caterpillar cakes, other retailers have followed suit and sold similar caterpillar cakes, including all of the ‘big four’ supermarkets, Asda, Morrisons, Sainsbury’s and Tesco, using names such as ‘Curly the Caterpillar’ (Tesco), ‘Clyde the Caterpillar’ (Asda) and ‘Wiggles the Caterpillar Cake’ (Sainsbury’s). So, why has M&S lodged a claim with the High Court specifically against Aldi?

M&S has argued that the close similarity of Aldi’s Cuthbert the Caterpillar cake “rides on the coat-tails” of Colin’s honourable reputation (a classic trademark infringement phrase — remember L’Oréal v Bellure?). Therefore, M&S have stated that this amounts to passing off; the law of passing off prevents traders from misrepresenting their goods or services as that of another trader. M&S believes that Colin has a distinctive character and reputation, especially due to the fact that Colin is a central piece (or slice, if you will) of the company’s partnership with Macmillan Cancer charity. As a result, M&S believes that Aldi’s duplicate cake may be unfairly benefitting from the well-known strong reputation that Colin holds.

The central issue is whether Aldi’s product is close enough to cause confusion among customers and that incorrect assumptions could be made that it originates from, or is connected to, M&S. For example, if the product is purchased from an Aldi store, the packaging branded ‘Cuthbert the Caterpillar’ is removed and the primary school party staple is laid out on a table — this could confuse or mislead guests of its origins. Aesthetically speaking, both are choco-covered log cakes with decorative sweets adorned on top. Further, if consumers are to be disappointed with Cuthbert, this could detriment Colin’s reputation that M&S has worked so hard to build over the years, due to the similarity of the products. As an upmarket store, perhaps M&S is concerned about the fact that Aldi is clearly producing a more affordable version of the product and the implications that this may have on M&S’ glowing reputation as a business overall. Would you go with Cuthbert to save that £2?

Aldi’s Cuthbert cake is still available on its website (renamed ‘Holly Lane Caterpillar Cake’) and has been on sale in Aldi stores since 2019. If M&S’ case is successful, Aldi will have to remove their version of the caterpillar cake from sale permanently and agree not to sell any similar products in the future. Ever. However, this seems to imply that Aldi would get off lightly, as M&S has not specifically divulged that they will be seeking monetary reimbursement or compensation for losses — i.e. any Colin sales lost by virtue of customers purchasing Cuthbert instead.

On the flip side, Aldi appear to be making light of the situation, taking to social media with jokes and puns… possibly implying that they don’t believe M&S will be successful in their claim. Or perhaps just trying to not damage their reputation by making the public laugh and gaining support that way. I must admit I’ve had a chuckle at some of their recent Twitter activity and seen many re-tweets claiming that Aldi’s social media manager deserves a pay rise. Some examples of their recent tweets include “Cuthbert has been found GUILTY… of being delicious”, “This is not just any court case, this is… #FreeCuthbert” and “Marks & Snitches more like”.

Packaging update. #FreeCuthbert pic.twitter.com/XDSnhpvjmj

— Aldi Stores UK (@AldiUK) April 16, 2021

Sammy Hacklett graduated in law from the University of Southampton in 2018. She currently works as a paralegal at Eversheds Sutherland.

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In his 1928 work La conquête de l’ubiquité, Paul Valéry noted: “we must expect great innovations to transform the entire technique of the arts, thereby affecting artistic invention itself and perhaps even bringing about an amazing change in our very notion of art”. NFTs (non-fungible tokens) have become an unlikely innovator in the art world.

NFTs are a method of tokenising an asset, where a token is a digital unit of value recorded on a blockchain. These tokens can represent a variety of things and obey different rules. The nature of a token depends on the standard (a set of rules decided by developers) that is applied to it. Popular standards include the ERC-20 standard for fungible (something that is not unique and therefore divisible) tokens on blockchain Ethereum’s infrastructure, whilst the ERC-721 standard is often used for non-fungible (unique) tokens. Here’s a useful video that provides some more information on NFTs.

An ‘authentic’ digital canvas

So, how can NFTs be applied in the art world? Digital art is attached to an NFT which is minted online and then traded in a variety of marketplaces. NFTs have had two important effects. First, they have provided a sense of ‘authenticity’ to digital art. Second, they have created a potentially useful online canvas for digital artists to share a new genre of performative artworks.

Because NFTs are unique tokens, they provide a sense of authenticity to digital art in a copy-and-paste internet world. Ever since the Renaissance’s cult of individualism, as theorised by Jacob Burckhardt, authenticity has played an important role in art. Before the Renaissance, as Alexander Nagel has argued, forgery of an artwork did not exist because a work’s value did not stem from its originality and authenticity. It is only in the Renaissance that artworks could be considered deficient if they were not the ‘authentic’ product of a certain artist. The artist had suddenly become an important quality of the artwork.

NFTs encode this sense of ‘authenticity’. Therefore, if you find some of the recent valuations of NFTs absurd, it is the fault of the marketplace for art, not NFTs. It is this ideology of valuing a work on its creator’s reputation rather than on the artwork’s aesthetic value alone that has seen NFTs of Jack Dorsey’s first tweet being valued at $2.5 million (£1.8 million), a video of Banksy’s work Morons being burnt selling for $380,000 (£272,000) and the digital artist Beeple’s collage ‘Everydays: The First 5000 Days’ selling for a record-breaking $69.3 million (£50 million) yesterday.

just setting up my twttr

— jack (@jack) March 21, 2006

Because NFTs can provide an aura of authenticity for digital art, they have become an ideal canvas for digital artists to create a new type of performative digital art. Consider Jack Dorsey’s NFT tweet. It is just a screenshot of his tweet, something that anyone can make and therefore has little value. So, what makes it art? Is it inherent to the tweet itself? Or did Jack Dorsey become an artist (and his tweet art) when he created the NFT of his tweet? Is the act of selling his tweet an artistic performance that can be qualified as art?

This issue cannot be definitively settled, but I am inclined to agree with the argument that considers minting an NFT as an artistic performance (the digital equivalent of when Marcel Duchamp signed a urinal “R. Mutt” and placed it in a context where it could exhibit an artistic aura). Regardless of your opinion, it certainly adds an interesting twist to the “can you copyright a tweet?” debate. With such a broad range of NFT art (take a look at what’s on offer), it will be interesting to see if copyright is given an equally broad scope.

Get me a lawyer!

The utility of NFTs regarding intellectual property (IP) rights, however, seems far less convincing. The problem is that owning an NFT does not automatically grant you ownership of an original work. From a copyright perspective, an NFT is just a digital receipt indicating that you own a version of a work. Buyers’ perceptions about what they own do not necessarily meet the legal reality and companies involved in these transactions are not transparent.

As scholar Catalina Goanta has pointed out, Decentraland (a virtual world where land is represented in NFTs) has contradictory statements about the IP rights of its NFTs. It claims that it is a “virtual world owned by its users”. However, according to Article 12.1 of its Terms of Use, Metaverse Holdings Ltd (the company that provides Decentraland users with many important features) owns “all title, ownership and Intellectual Property Rights” on the site.

This lack of clarity over buyers’ IP rights has not stopped users spending millions on virtual land NFTs, with some suggesting that it could be at the forefront of a virtual real estate boom in the near future. Dapper Labs Inc., the Canadian company behind the first popular use of NFTs CryptoKitties, has done the most to resolve these IP issues by creating an NFT License. Drafting issues aside, this goes some way towards making buyers realise they are not purchasing the copyright but just a form of licensed content.

New intellectual property?

Whilst legal scholars have been quick to point out the legal holes in NFTs, we should not ignore the cultural and technical novelty of these unique tokens. Although IP rights are few and far between for NFTs, IP law may have to respond to the consequences of this NFT craze.

There could be significant benefits for artists who want to maximise their profits from the use of their work. As discussed earlier, artists can choose to mint their NFT according to different standards. Therefore, if you wanted to receive royalties whenever the rights to your work was used, you would opt for a token that laid down such rules (as it happens the ERC-1190 standard does this). And, as Valéry predicted, innovation could change our understanding of what art is and therefore what does and does not deserve copyright protection.

It remains to be seen whether NFTs will live up to their hype. Regardless of whether the future is a world with a developed NFT art market or angry crypto art collectors litigating for a violation of consumer protection (or both!), there will likely be some interesting legal issues on the way.

William Holmes is a penultimate year student at the University of Bristol studying French, Spanish and Italian. He has a training contract offer with a magic circle law firm.

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On 19 June 1421, the Republic of Florence granted Filippo Brunelleschi a three-year exclusive right to build and make use of his new type of boat “Il Badalone” on the river Arno in Florence. Although Brunelleschi’s boat did not survive its first outing and sank in the Arno, the legacy of his 1421 patent lives on today. The subsequent developments in intellectual property (IP) rights amongst the Italian city states are considered to be the progenitors of modern IP law. The Italian Renaissance’s principal heritage is embedding the concept of human ‘genius’ into our understanding of authorship and inventorship.

These foundations are now being shaken by recent technological innovations. Artificial intelligence (AI) has seen machines independently create art, music, literature and several useful inventions. The rise of the machine author and inventor has raised questions about whether a patent should be granted or copyright protection should subsist for machines’ creative productions. So, to what extent do we owe these IP problems to the Renaissance? Are there insightful parallels between the Renaissance’s development of IP and our present situation? And is it time to break with the past and redefine our IP laws?

Authorless and inventorless

For copyright to subsist under the UK’s Copyright, Designs and Patent Act 1988 (CDPA), a work must be original. The test for originality (both before and after the Court of Justice of the European Union’s (CJEU) Infopaq decision) is inextricably linked to authorship; the author is the legal person responsible for the original elements of a work. At present, AI cannot be considered an author because it does not have legal personhood.

The CDPA, however, was the first piece of legislation that introduced provisions for copyright protection in computer-generated works. The CDPA, in section 178, defines computer-generated works as works where there is no human author and provides a solution to this absence of human authorship in section 9(3). The author of a computer-generated work is “the person by whom the arrangements necessary for the creation of the work are undertaken”.

This, however, raises the question of whether the person (or persons) making the necessary arrangements for the creation of the work can meet the standard of originality required of an author, considering that they are only facilitating the AI’s creativity. Perhaps the efforts of making such arrangements is enough? Or, alternatively, can we objectively assess an AI’s originality compared to human standards? This remains to be tested in court.

Similar issues arise surrounding inventorship and legal personhood in patent applications for AI inventions. As I explain at greater length here, whilst an AI could satisfy the definition of an inventor, its lack of legal personhood is again problematic. This is because inventorship is inextricably connected to ownership (the inventor is the owner of a patent by default). But in order to be able to own or assign ownership to someone, AI would need to have legal personhood.

The lawyers working on the Artificial Inventor Project are currently testing this by filing patent applications for the creativity machine DABUS’s inventions in several different jurisdictions. The most promising sign the project has received was when the High Court’s 2020 ruling noted that “DABUS has “invented” the inventions” and the law may “cater for future developments, including developments that were — until they surfaced in litigation — unforeseen”. However, for now, AI’s creations remain authorless and inventorless in the eyes of the law.

From ars to ingenium

Underlying these issues is a broader question: why should IP law only reward human creations? The reason we are asking this today is, in large part, thanks to the way IP law was developed in Renaissance Italy.

Intellectual property law in the Italian city states was born out of two tensions. The first was a clash between the guild communes and talented entrepreneurial individuals. The guild communes (groups that specialised in certain crafts such as glass-making) passed on craft knowledge through apprenticeship schemes. On becoming an apprentice, you were forced by the guild to take an oath of secrecy that would prevent you from spreading guild knowledge to rivals. City states vigorously enforced this. Florence and Venice threatened those who fled the city’s guilds with capital punishment, whilst the cities of Lucca and Genoa would richly reward anyone who murdered a fugitive artisan.

Ironically, this protectionism created an attitude of ownership towards the intangible property of craft knowledge. Unwittingly, the guilds had developed the concept of intellectual property. And disparities in knowledge and ability eventually gave rise to individual entrepreneurs like Brunelleschi who refused to abide by the guild system.

The second tension was between man and machine. Society redefined the nature of its abilities in the face of cheap mass production. Under the sway of Renaissance humanisms’ focus on the individual, many types of craft knowledge came to be “treated as forms of ‘knowledge’ rather than mechanical skill”. Ars (mechanical skills collectively practised within guilds) became ingenium (forms of knowledge in an individual’s mind). The focus shifted from the collective and mechanical to the individual genius of the mind.

Accordingly, Brunelleschi argued in his patent request that he should have exclusive rights to his boat on the grounds that the machine was “the fruit of his genius and skill”. Similarly, the 1474 Venetian patent statute granted monopolies for “any new and ingenious device”, explaining that it aimed to attract individuals “who have the most clever minds, capable of devising and inventing all kinds of contrivances”. This justification for IP rights that centred on the unique genius of an individual’s mind has evolved into our concepts of authorship and inventorship.

The death of the author?

The DABUS case has highlighted the limited nature of this definition. As the High Court ruling explained: “To take a somewhat extreme example, were an alien from outside the galaxy to present itself before the courts of England and Wales, I would like to think that it would not be denied legal personality simply on the grounds of unforeseen extraterritoriality. The courts are well able to differentiate between an alien artefact (say a meteorite, a thing) and an alien (which if capable of interacting as a natural person, is or ought to be a person).” But the trajectory that Brunelleschi’s patented boat set IP law on is now preventing this natural progression for the innovations of our time. However, just as new technology redefined Renaissance Italy’s notion of authorship, will AI now redefine our understanding of authorship and inventorship?

There are two things that the Brunelleschi’s patented boat can teach us. First, that our understanding of what being an author or inventor means is based on a 600 year-old definition. Second, that a society’s interaction with new technology inevitably redefines the society’s understanding of itself. It remains to be seen if the birth of creative AI will be the death of our 600-year-old author and the inventor. If so, perhaps then copyright can subsist for AI works and patents can be granted for AI inventions.

William Holmes is a penultimate year student at the University of Bristol studying French, Spanish and Italian. He has a training contract offer with a magic circle law firm.

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At the Turkish Grand Prix, Lewis Hamilton secured a record equalling seventh Driver’s World Championship, a feat shared only by the legendary Michael Schumacher.

This followed Hamilton’s team, Mercedes-Benz, winning a seventh consecutive Constructor’s Championship at the previous event at Imola. Mercedes’ dominance in the sport is evident. Having re-entered in 2010, the German manufacture, who are based at Brackley in the UK, had a steady first few years back in the sport. However, the 2014 season saw the introduction of a significant rule change which has become known as the V6 turbo hybrid era. Mercedes has won every driver’s and constructor’s championship since.

Formula 1 is the pinnacle of motorsport, where the difference between winning and losing is measured by tenths, and sometimes hundredths of a second. It is a sport where there are millions of pounds worth of prize money on the line. Therefore, teams work tirelessly to maximise the performance of their cars, be it aerodynamics or engine power. Why then, are the teams in F1 not perpetually locked in a public patent war in a bid for supremacy? Why hasn’t Mercedes (who arguably have the best car) patented their innovations that are at the forefront of technological advancements?

If you look deeper, you will actually find that Formula 1 and intellectual property don’t mix.

What are patents?

In the UK, patents are subject to the Patents Act 1977. Patents are available for most industrially applicable processes and devices. In contrast to copyright, patent protection does not arise automatically on creation of a work. An application must be filed and then granted for protection to arise. Once obtained, they permit the inventor to stop third parties from using the invention.

There are also various international conventions which provide international protection. Examples of those that are currently in force are as follows:

• Agreement on Trade-Related Intellectual Property 1994
• Community Patent Convention 1975
• European Patent Convention 1973
• Patent Co-operation Treaty 1970

There is also the Unified Patent Court (UPC). The UPC settles disputes relating to European patents.

Why should you seek patent protection?

In many cases it takes time for a new technology to take off, and the benefit of some protection from competitors at the outset is very worthwhile commercially. Failure to protect the innovation before its details are published can severely limit, or even wholly undermine, the scope of protection under patent laws or as a trade secret under the law relating to confidential information.

The law isn’t everything

The lack of patents in F1 has been covered previously. James Allen, the BBC News F1 Correspondent, quoted a “senior F1 engineer” stating:

“The lack of patents in F1 is quite simple. It’s because if a team takes out a patent on a design, that then locks in an advantage the other teams cannot access. Therefore, the other teams will simply vote it out through the FIA Technical Working Group process by the end of the season in question.”

F1 is governed by the Fédération Internationale de l’Automobile (FIA). Each year the FIA outline the sporting and technical regulations for the upcoming season. Many teams rely on loopholes within the technical regulations to improve their cars’ performance. However, F1 is fundamentally for entertainment purposes. For F1 to be entertaining, it is arguable that fans would want as many teams competing for race wins as possible. If one team had a consistent advantage over the rest, the sport would become predictable. If a team patented an invention and it was clear that the invention subject to the patent was a clear cause for the competitive edge of the team, then the FIA would rule it illegal for the following season. Essentially, making the patent worthless.

Look no further than the current season and Mercedes’ introduction of Dual Axis Steering (DAS). DAS changes the alignment of the front wheel of the car and is controlled by the driver by pulling and pushing on the steering column. It is used to aid tyre warm up. Yet, the FIA has already clarified the rules making this system illegal for next season.

Another reason is time constraints. As protection only arises once the patent request has been approved, there is time in which other teams can develop similar processes or inventions to negate any tactical advantage.

It is worth noting that F1 is a world championship, covering a vast array of territories. To have the benefit of patent protection, an inventor would have to have applied, and been granted, a patent in each territory. This comprises domain spanning across the globe including; Australia, Singapore, Abu Dhabi, the UK and the USA. Making separate patent applications would be a lengthy and expensive process. There is a more convenient option of utilising the Patent Co-operation Treaty 1970, however that process can take up to 18 months to complete. Thus, rendering any potential technical advantage minimal upon completion.

Ultimately, teams choose to protect their innovations with secrecy not patents. The need to disclose the process when applying for a patent would likely cause the team to lose its competitive edge. Trade secrets, on the other hand, are information which hold a commercial value because they are, by their very nature, a secret.

Conclusion

Action sometimes overshadows inaction. Law is not the only consideration; commercial awareness is key. With the ever-changing landscape of F1, unless the invention can be tailored for use in other areas of the company, such as on-road vehicles, patents are not the best tools, all things considered. It is important to not only focus on the law and the benefits that it can provide. The business’ interests need to be considered, along with an understanding of the industry in which they operate and what their ultimate goals are.

With a major rule change coming in 2022, in a bid to even the playing field once again, who will come out on top? Which team will lead the way in innovation? Who will be the next champion of the world?

Benjamin Ramsey is a first class law graduate from Northumbria University. He completed the BPTC as part of his degree and was called to the bar in 2018. He currently works as a county court advocate for LPC Law, and is actively seeking pupillage.

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Realising that labs weren’t for her early on yet wanting a career which satisfied her scientific curiosity, intellectual property (IP) law had always been on Felicity Wade-Palmer’s radar. When Gowling WLG showed up at a careers fair during her law conversion course, pitching themselves as the go-to ‘IP firm’, the choice was obvious.

At the time, Wade-Palmer was also working part-time in customer operations for a start-up company called Curve. During her time there she gained first-hand commercial experience, learning about the competing goals within a business. Her time in customer operations at Curve also opened her eyes to the world of business expansion, with the company’s headcount soaring from 10 to 100 people during the time she was there.

During her Graduate Diploma in Law (GDL), she got to grips with core IP policy issues, basing her research project on the competing needs of IP rights and free and fair competition in the market. When probed as to where she stood within this debate, she tells me, “it is all about checks and balances”. We need IP rights at a fundamental level to protect innovation. However, we cannot allow a monopoly to abuse this right and prevent competitors from entering the market. IP law, in turn, is a constantly developing area, which is one of the reasons why she finds it so fascinating.

While completing her training contract at Gowling WLG, Wade-Palmer was lucky enough to take half of her seats in IP — one in the UK and one on secondment to Gowling WLG’s IP team in China, which had the added bonus of getting to know her colleagues overseas. She tells me how much she enjoys the variety of work within IP law, particularly at Gowling WLG, and being able to dip into both branding and patent litigation work.

When casting her mind back to the days before the virtual office took over, she tells me about some client work she did for a toy company — “there was a time in which my desk was completely covered in Polly Pockets!” Now a newly qualified (NQ) solicitor in Gowling WLG’s IP department, she is also studying for a postgraduate diploma at Oxford University — a “rite of passage” for NQs in the firm’s IP department.

Artificial intelligence (AI) is having a real impact on IP (and, indeed, most practice areas), raising questions such as whether data can be protected, whether a computer-generated text or artwork attracts copyright, the patentability of AI technology, whether AI can already make inventions autonomously and whether such inventions should be incentivised by IP rights, and who should be liable for IP infringement by AI. Consultations are ongoing by IP offices around the world, including the UK’s Intellectual Property Office and the World Intellectual Property Organisation.

Using life sciences as an example, she told me how AI can assist in all stages of drug development, such as identifying new targets and suitable molecules, recruiting suitable patients for clinical trials, analysing trial results and predicting how best to manufacture the new drug. These AI tools are often training on large data sets — sometimes owned by the traditional pharma company, sometimes licensed in and sometimes pooled with competitors. Moreover, multi-party collaborations may be needed to gather all the necessary technology and skillsets, including the pharma company, academics, data scientists, data suppliers, etc.

These complex deals require suitable legal frameworks to govern who controls the data, who owns any advances in the AI, and whether permission to use of party’s data can be withdrawn at a later stage. Students seeking to embark on a legal career right now should have an interest in the role of AI in business and society and appreciate the current and potential impact on key areas of law, regulation and ethics.

When asked what advice she can share with STEM students looking to make the leap into law, Wade-Palmer recommends they emphasise the unique skills they bring to the table. This can give them a head start in a legal career, she says, adding:

“When it comes to showcasing your skillset, generally you’ll find that STEM students’ strengths lie in the way they approach tasks; methodically and analytically. They are also experienced in condensing information and communicating it in a direct and clear way. When you combine this with STEM students’ readiness to tackle problems they don’t already know the answer to, you’ll see that you’re uniquely placed to take on the challenges involved in being a lawyer.”

When asked for the single most important piece of advice for aspiring lawyers from science backgrounds, she says:

“Don’t get too caught up in the rat race of law by worrying about what your peers are doing. Getting varied experience and gaining scientific and industry knowledge is very valuable.”

Felicity Wade-Palmer will be speaking alongside lawyers from Allen & Overy, Clifford Chance, CMS, Herbert Smith Freehills and Mayer Brown at today’s STEM Future Lawyers event, ‘Why STEM students make great lawyers’, in partnership with BPP University Law School. You can apply for one of the final few, and free, places to attend now.

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Last month STEM students and graduates were treated to Pinsent Masons’ virtual open day, ‘STEM in Intellectual Property Law’. The event featured four interactive workshops from Pinsent Masons lawyers specialising in patents, trademarks, copyright, design and other aspects of intellectual property law. This was followed by virtual networking with the speakers, trainees and members of the firm’s graduate recruitment team.

Almost 100 attendees were greeted by the hosts of the four workshops, Charlie Davies, Kirsteen McEwen, Alice Pringle and Tracey Roberts, all STEM graduates-turned lawyers. Charlie graduated with a chemistry degree from the University of Oxford. Kirsteen, who Legal Cheek interviewed prior to the event, also graduated with a chemistry degree from the University of Edinburgh. Alice graduated from the University of Sussex with a degree in neuroscience and Tracey graduated from the University of Cambridge with a degree in natural sciences.

The four Pinsent Masons STEM lawyers then took the students through 25-minute workshops that focused on the different strands of intellectual property law.

Charlie hosted the first workshop, ‘Issues STEM-ming from life sciences transactions’, which took students through the ins and outs of trade secrets, the differences between an asset and share sale, and finally a case study where a client is looking to purchase a life sciences company.

Kirsteen introduced trademarks in the second workshop, ‘Powering and protecting brands’. She discussed everything from the turquoise colour of Heinz baked bean cans to the shape of Toblerone chocolate and the nuances of trademarking KitKat. This knowledge was then used by students in her case study which looked at whether a new technology could be trademarked.

The third workshop, ‘Introduction to copyright — copyright law in practice’, was led by Alice. She outlined the law of copyright and the protection it gives. She then took students through a case study on copyright from CDs to online streaming.

The final workshop, led by Tracey, looked at ‘The science of patent litigation’. Tracey explained what a patent is, the role of a patent lawyer, and the ways a patent can be litigated.

Margaret Roy, graduate recruitment manager at Pinsent Masons, then discussed the opportunities available at the firm, provided useful hints and tips for the application process and explained the core competencies Pinsent Masons looks for in their future lawyers.

Margaret reminded students that “the application form is just the first step” but that it is “crucial to get you to the next stage”. She said that applicants should answer every question, and helpfully added that applicants should ask someone to read their answers without them knowing what the question is. “If they can guess what you have been asked from your response, then you know that you’ve answered the question well,” she said.

Margaret also recommended applicants explain what they’ve learned and the skills they’ve gained from doing work experience and to link this to the firm’s core competencies. Regarding the type of work experience, she emphasised that students “should not get hung up on legal experience” and that if they only have a day’s worth of shadowing in a law firm, that they should not necessarily prioritise this over long-term non-legal work experience.

Margaret’s last tip was to thoroughly research the firm you apply for and that law firms do not want to see “generic responses that could be applied to any other firm”.

Margaret then referred to Pinsent Masons’ eight core competencies that the firm looks for in its future joiners and explained the importance of addressing and demonstrating these in a Pinsent Masons application.

The first core competency, driven, describes a diligent person who works hard to achieve goals and is willing to go the extra mile. The second, commercially aware, looks for applicants who have an understanding and interest in how the law can help clients. The third competency is detail conscious. This is where applicants must be able to read and absorb large amounts of detail. Confidence is the fourth competency and Margaret described this as an individual who is “prepared to express an independent view, happy to take charge but also unconcerned about asking for help when they need it”.

The fifth competency is organised and this asks applicants to be able to manage tasks effectively and efficiently, prioritise conflicting demands, monitor own progress against objectives and be conscientious about meeting deadlines. The sixth competency is self-directed which looks for someone who takes responsibility for themselves and their decisions. Intellectually capable, the seventh competency, looks for someone with strong analytical and research skills and good academic achievement. The final competency is sociable which asks applicants to be able to get on with a wide range of people regardless of their background.

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“I find it odd that law is classed as an ‘art subject’ because I find it quite mathematical,” Kirsteen McEwen, associate at Pinsent Masons, tells me when we speak. She explains that “if you have the law as your equation — fit the facts into your equation and out pops the answer”, adding that lawyers can also be creative by using case law to support the outcome.

Before McEwen was a life sciences lawyer specialising in patent litigation, she was a chemistry student at the University of Edinburgh. She told me her decision to pursue a chemistry degree stemmed from her interest in “the way the world works”.

McEwen was particularly drawn to the ‘practical’ aspect of her degree, which resulted in her spending a year at GlaxoSmithKline (GSK) as a process chemist. “I was part of a team responsible for troubleshooting issues in the manufacturing plant and while I was there it was announced that the plant would close.” She went on to explain that when GSK closes a plant, the company doesn’t just stop making the product; rather they transfer it to another site or manufacturer. Her role was to support this technology transfer from one manufacturing plant to another. She credits this experience for igniting her interest in law:

“During the process, I was exposed to lawyers and regulatory teams and I was impressed by how well the lawyers understood the business and how they could converse on the science aspect of it. It opened my eyes that one could use chemistry outside of a research lab!”

McEwen then completed her chemistry degree and began to apply for training contracts. She says that because she only discovered late into her degree that she wanted to make a switch to law, her CV fell short of any legal work experience. She made up for this shortfall, securing a vacation scheme first at SJ Berwin, and then a training contract with the firm.

So how did she find the transition from a non-law degree to completing the postgraduate law vocational courses, the Graduate Diploma in Law and Legal Practice Course? “There was lots of reading,” she says but gives aspiring lawyers a helpful tip: “Look at case law as a collection of stories. As long as you remember the brief outline of the story, you will remember why it is important and the legal principle that comes from it.”

After completing her training contract she qualified as an intellectual property lawyer at Pinsent Masons. “I chose Pinsent Masons because they came across as a ‘normal’ firm. Everyone was very friendly, technically capable and the firm was leading on the innovation front,” explains McEwen. “We’re not just a law firm, we’re a professional services firm with law at the core. Pinsent Masons has accountants, a consultancy service and a team of product engineers who build tech products to assist clients.”

McEwen touches on the stereotype that STEM (Science, Technology, Engineering and Maths) graduates tend to go into intellectual property (IP) law. “I remember when I was applying to become a lawyer, I was very clear that I didn’t want to be pigeon-holed as an IP lawyer,” she says. There are many other practice areas that benefit from having lawyers with STEM backgrounds, she adds. “For example, technology, media and telecommunications (TMT) requires an understanding of data and technology when dealing with infrastructure projects.”

IP can be tricky to wrap your head around and so McEwen provides a handy breakdown. There are four key components, she says. First, there is patent law which is the law dealing with invention and technical creativity. Second, there is trademark law and ‘passing off’ which is concerned with branding. Third is copyright law which is the law that governs artistic creativity. “These laws are going through a period of significant change as they were written in the 1980s before the digital age,” McEwen explains. Fourth is design law which is all about the technical look and feel of products. She puts forward an interesting example: “Mobile phones are all the same in that they’re a tablet format, you can use them to make calls and they have an interactive screen. However, the reason you pick one over the other is the design — the look and feel.”

McEwen is keen to share her experience of being a STEM graduate turned lawyer to students with similar aspirations. Not only did she spearhead the upcoming STEM in Intellectual Property Law Open Day with Pinsent Masons, but she plans to use the event as a springboard to start a wider initiative to get more STEM students and graduates interested in getting involved in the many different roles within Pinsent Masons.

So, what is her key piece of careers advice? “Get as much experience as you can,” she recommends. “Apply for lots of vacation schemes and remember to view it as a two-way interview where you can also see if the firm is a good fit for you. If you can’t do a vacation scheme, try speaking to people through open days and virtual law fairs.”

STEM Future Lawyers is partnering with Pinsent Masons on Thursday 29 October to host a virtual event for science, technology, engineering and maths students and graduates who are interested to find out more about how STEM is relevant to some of their key practice areas. You can apply to attend the event, ‘STEM in Intellectual Property Law’, for free, now.

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It has been a busy few months for Sally Shorthose. The intellectual property partner in Bird & Bird’s life sciences sector group has had her hands full with the opportunities and challenges presented by COVID-19.

Lawyers, she notes, are being kept especially busy by “pharmaceutical and biotech clients with the regulatory and commercial challenges and involvement in either producing PPE [personal protective equipment], developing vaccines or bringing to market potential solutions or treatments”. Coincidentally before we spoke, Shorthose had just closed a $600 million (£463 million) deal which she described as hugely exciting and satisfying. “I enjoy being able to apply my commercial, regulatory, IP and industry knowledge,” she says.

Looking beyond COVID-19, Shorthose anticipates “huge changes” in the life sciences sector. “We can see there is a trend towards digital healthcare such as online pharmacies, online doctors, fitbits and other medical devices that can be used at home for greater convenience and accessibility,” she explains.

Shorthose goes on to share her thoughts about the impact of Brexit on the life sciences sector. “The relationship between Europe and the UK is so uncertain and if there is no trade deal, there is a chance that medicines and medical devices could get delayed in transit or not delivered at all. While I do fear shortages, there is another school of thought: the UK could be seen as an agile and flexible place to do research away from the EU, particularly as the UK has traditionally been given a bit more leeway because it is less risk averse. It could be seen to be easier to work alone than to align the interests of 28 member states.”

Before Shorthose became a partner in what is considered to be a traditionally STEM-focused practice area, she graduated from the University of Manchester with a law degree. So how did a law graduate come to choose IP, work in-house at two pharmaceutical powerhouses and then lead IP teams at three different City firms?

Shorthose tells me she began her training contract at Herbert Smith Freehills and she realised a few years after qualification that she wasn’t suited to corporate and finance law and decided to move in-house. At this stage, she says she still hadn’t considered IP, but that after a number of interviews at in-house companies, “IP found her”. She tells me about her time working as senior legal advisor at a British agrochemical and biotech company:

“I enjoyed working in a big sophisticated business where I got terrific responsibility from a young age. I loved the research, development, manufacturing and process of taking a product from the scientist’s idea through regulatory and commercialisation processes, to then watching it launch and perhaps even affect a company’s share price.”

After 11 years of in-house practice, Shorthose made the move back to private practice. She admits that she did regret the decision for some time. “It was a big shock and I did wonder if I made the right choice,” she says. “Timesheets were new and having to constantly find new work for the team was challenging.” She does, however, reflect on the drawbacks of being a senior lawyer in-house. “It can be lonely as you are the only and/or most senior lawyer in the room,” Shorthose says.

The discussion prompts Shorthose to add that it is very important to find the “right firm for you”. After being head of IP at two City firms, she was headhunted by Bird & Bird: “I chose Bird & Bird because it was the best at two things I wanted to do — IP and life sciences.” She credits the firm’s “brilliant people and great clients” for being just one of the reasons she’s stayed at the firm for 14 years. A standout transaction for Shorthose was advising on James Bond author Ian Fleming’s IP. She worked on the commercialisation and licensing of all of his books and was even invited to attend the Quantum of Solace premiere.

Shorthose’s advice for aspiring lawyers is simple: “Be enthusiastic, engaged and have a breadth of interests.” She encourages students to “research a firm’s recent work, read widely and have examples to back up your interests so that you can genuinely demonstrate commercial awareness and understanding.” She adds that students and even practising lawyers should try to get in-house experience as it allows them to “sit on the other side of the desk and see what pressure in-house lawyers are under”. Going on client secondments will help in this regard.

Sally Shorthose will be speaking alongside other lawyers from Bird & Bird at ‘The innovative industries that will shape the post-COVID world’, a virtual student event taking place tomorrow, on Wednesday 23 September. You can apply to attend the event, which is free, now.

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An ability to speak Spanish was the catalyst for Mark Marfé’s legal career. Now a senior associate at Pinsent Masons, specialising in patent litigation, Marfé graduated from Bristol University with a degree in cellular and molecular pathology and was living in London when a friend asked him if he’d be interested in a short-term paralegal job at a US law firm.

“My degree was very interesting but I knew I didn’t want to be a lab-based researcher,” Marfé says. “I had moved to London and was looking into doing something related to my science degree. I had been considering scientific publishing when one of my housemates, who was training to be a barrister, suggested I consider a paralegal role he’d been offered.”

He continues: “The project involved the sale of energy assets in Spain for which they needed a Spanish speaker to assist. My friend felt his Spanish wasn’t quite fluent enough so he asked me if I wanted to apply — I’m from Gibraltar and am bilingual. I worked for six months at that firm, spending some of the time in Madrid, and really enjoyed the collaborative and varied nature of the work.”

Consequently, Marfé applied to various law firms with a view to doing a conversion course and ended up part of a cohort at BPP Law School with a training contract.

Marfé’s interest in science also influenced his traineeship at Lovells (now Hogan Lovells). He tells Legal Cheek Careers:

“I was looking at law firms with a science angle to their work, for example, product liability, but was also aware of intellectual property (IP) as a possibility. In the first six months of my financial seat, I made enquiries about IP and was given an opportunity to do a six-month seat in the IP department.”

Although his degree is in life sciences, it wasn’t necessarily relevant to the work he did subsequently, which has mainly concerned technology disputes. In fact, he says he would categorise himself more as a “smartphone war veteran” (a phrase coined by one of Marfé’s former clients), because of the large amount of smartphone litigation around when he started and worked on post-qualification.

Nevertheless, his science background has definitely been an asset. “I am inquisitive and interested in technology and issues relevant to it”, he explains. “I am interested in delving into the technical detail of our clients’ business, and enjoy conversations with technical experts when preparing patent cases. Pinsent Masons’ sector-led approach also means we spend time thinking about what issues may impact our clients’ business in the future which is fascinating”.

He continues: “However, you don’t necessarily need a STEM (science, technology, engineering and mathematics) background — non-STEM graduates often take to the subject matter very quickly. What’s important is enthusiasm for the subject matter.”

Marfé’s work is predominantly contentious, in the high-tech space and frequently involves litigation in other jurisdictions as well as clients in other time zones. “When preparing for a case you are working in a team which will vary in size depending on the size and complexity of the case,” he says. “You will work collaboratively sharing ideas and will also work with experts and instructed barristers to develop a case. You can expect there to be regular meetings to update everyone, as the situation and priority tasks can change overnight, particularly where different time zones are involved.”

An example of recent work is the case of TQ Delta v ZyXEL, a dispute over global patent licensing rights concerning broadband technology, which went to the Court of Appeal in July in which Pinsent Masons successfully acted for the defendants, ZyXEL. Marfé says: “Patent licensing is a very fast-moving and fluid area of law, and it was great to achieve a successful outcome for our client.”

Pinsent Masons is keen to hear from STEM graduates and values having a diverse range of experience and viewpoints within the firm. The firm also has a reputation for embracing innovation and new technologies. For example, it has partnered with litigation analytics provider Solomonic to develop a new IP module combining the firm’s experience and insight as litigators with publicly available data from the UK’s IP courts to provide an additional layer of insight to help inform risk reduction, claims management and enhance disputes strategies. Marfé, who is involved in developing the module along with others in the IP team, explains: “It provides insight that feeds into the management of a dispute, which may be useful for the client. For example, how may a particular judge approach a certain legal issue in a case?” The insight gained helps Pinsent Masons advise the client with regard to reducing risk, managing the claim and forming business strategies.

On the future of ‘lawtech’ generally, Marfé is enthusiastic about a future where lawtech handles the more mechanical tasks, freeing lawyers up to think more strategically about the issues. He says it is important to think of it in terms of the technology itself and what benefits that particular technology brings. Doing that gives it the greatest chance of its adoption by law firms and their clients — there is a saying in the tech sector that “the only true disruption is customer adoption”.

For students considering IP as a career, Marfé’s advice is to keep up to date with industry trends such as autonomous vehicles or 5G, and the opportunities and challenges that such technologies will bring. He recommends vacation placements in firms with an IP practice or paralegal work as a good way to gain experience and an understanding of a firm’s culture.

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