Five key patent cases of 2022
WIPR unpacks five notable cases that hit the headlines over 2022, from artificial intelligence campaigns to global patent clashes and record awards.
Rise of the machines?
While it’s incredibly unlikely you haven’t read about the DABUS saga (unless you’ve been living under a rock for the past few years!), we’ve set out the bare bones of the artificial intelligence (AI) inventorship campaign below.
Most recently, in November, the High Court of Australia refused scientist Stephen Thaler’s bid to apply for leave to appeal against a decision made by the Federal Court of Australia in April this year.
The Federal Court had overturned its earlier ruling that AI can be a named inventor on a patent application, striking down last year’s win for Thaler and his ongoing AI inventorship bid.
Thaler applied for two patents across the world, one a type of plastic food container and another a flashing beacon light, giving the name of the patent inventor as DABUS, an AI system created by Thaler.
In the Australian case, Thaler secured an early win before the Federal Court—with the court finding that an AI can be a named inventor but that non-humans cannot apply for patents—but this was subsequently overturned by the court in April.
Now, with the High Court’s decision, it’s the end of the road for DABUS in Australia.
However, there is still opportunity for Thaler in the UK, with the UK Supreme Court confirming it will hear the appeal over the DABUS patent inventorship bid.
The European Patent Office and the US Court of Appeals for the Federal Circuit have rejected the inventorship bid.
A global patent clash
There seems to be no end in sight to the global dispute between Nokia and Oppo over standard-essential patents (SEP).
The companies have both had mixed fortunes in courts worldwide with some wins going to Nokia, while others have gone to Chinese smartphone maker Oppo.
In August, Oppo and its subsidiary OnePlus stopped selling its smartphones and smartwatches in Germany after losing a patent clash with Nokia concerning 4G SEPs.
Then, in November, a spate of decisions hit the headlines. In the UK, the English High Court ruled that Oppo had infringed one of Nokia’s patents covering transmission signals in mobile phones.
In the same month, the Delhi High Court refused Nokia’s attempt to obtain a deposit from Oppo as the SEP infringement clash plays out in India. Nokia’s pre-trial motion which would have forced Oppo to make a deposit of patent royalties during the pendency of the infringement litigation was denied, with the court noting that the entire application was “clearly, fundamentally misconceived”.
And, in Germany, the Dusseldorf Regional Court found in favour of Oppo, finding that the smartphone maker had not infringed Nokia’s non-standard-essential patent.
A record patent award
Fresh from Canada comes the (reportedly) largest monetary award handed down for patent infringement in the country.
In November, the Canadian Supreme Court upheld the largest ever monetary award in a dispute between competitors Nova Chemicals Corporation and Dow Chemical Company.
The Supreme Court, in an 8-1 majority ruling, dismissed Nova’s appeals against earlier decisions which had concluded that Nova had infringed Dow’s patent on metallocene linear low‑density polyethylenes (thin but strong plastics) and should pay approximately $644 million.
The final award, which totals over $645 million (including prejudgment interest), is the largest reported award in a Canadian patent infringement case, according to Smart & Biggar—who acted as co-counsel on behalf of Dow.
As part of the ruling, Justice Malcolm Rowe, writing for a majority of the judges, set out a three step approach for calculating an account of profits. To read more, click here.
EU and China dispute
Earlier this month, the EU made it clear it would progress with its two cases against China at the World Trade Organization (WTO) after attempts to resolve the disputes failed.
While one dispute focuses on China’s trade restrictions against Lithuanian exports and EU exports containing content from that country, the IP focus is on the other dispute concerning the legality of China restricting high-tech patent owners from accessing EU courts.
In February, the European Commission—on behalf of the EU’s 27 members— launched a legal challenge at the WTO, arguing that China is restricting EU companies from protecting and using their patents.
The flurry of anti-suit injunctions being handed down by Chinese courts (which began in August 2020) are preventing patent owners from going to a non-Chinese court to enforce their patents, warned the Commission.
And, according to the Commission, the courts are using the “threat of heavy fines to deter European companies from going to foreign courts”. Violation of these anti-suit injunctions can result in fines of up to €130,000 ($136,900) per day.
Despite consultations, settlement was not reached and the Commission has asked the WTO to form an adjudicating panel. Panel proceedings can last up to one and a half years.
The wind turbine saga
A dispute over wind turbines between General Electric and Siemens Gamesa Renewable Energy has escalated in recent months, with the state of New Jersey also stepping into the fray.
In September, a Massachusetts judge issued a permanent injunction against General Electric, stopping the company from selling certain wind turbines that a jury found to infringe a Siemens Gamesa Renewable Energy patent.
Back in August, following the finding of infringement, the state of New Jersey implored the court to reject Siemens Gamesa’s bid to block General Electric’s wind turbines, claiming that a ban on the turbines would cause "irreparable harm to the state and its citizenry”.
While the judge did grant the permanent injunction, carve-outs were put in place, allowing GE to continue making and operating the turbines for existing state-sponsored projects in Massachusetts and New Jersey.
New Jersey’s Ocean Wind project consists of approximately 100 offshore windmills designed with the Haliade-X turbines, manufactured by GE, which are the subject of this lawsuit.
Across the sea, the High Court of England and Wales in November ruled that Siemens did not in fact have a valid patent and that even if the patent was valid, “neither the fully assembled Haliade-X nor its hub” fell within the scope of Siemens’ patent.
Siemens had brought a complaint against GE over the design of its offshore wind turbine, the Haliade X—which GE had been commissioned to supply.
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