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In Metso Outotec Corporation v. the Registrar of Trade Marks, appeals were preferred before the Bombay High Court from orders passed by the Registrar of Trade Marks in respect of trademark applications for the word mark SISUPER and device mark SISUPER bearing application nos. 4433306 and 4435364 respectively (IR Nos. 1513304 and 1512932). After a perusal of the facts of the case, the Court set aside and quashed the decisions of the Senior Examiner of Trade Marks refusing the mark “SISUPER”.
Nowadays, there seems to be no distance we cannot cover. We have cars to take us from towns to nearby cities. Ships to transport heavy cargo across oceans. We also have airplanes to take us from one country to another. […]
The Delhi High Court on April 5, 2021 dismissed two applications filed by Britannia Industries against ITC Ltd for alleged trademark infringement and passing off by the latter.
It should be said at the outset that the US law is very different to that of Australia, and it is therefore unlikely that anything in Judge Brinkema’s legal reasoning will be influential upon the Full Court. It has also become apparent through the UK High Court and Court of Appeal decisions that while the UK law shares some similarities with the corresponding provisions of the Australian Patents Act 1990, there are also some significant differences. Even so, there are aspects of the reasoning of Lord Justice Arnold in the Court of Appeal that the Australian appeals court may consider persuasive, and that could therefore influence the outcome here.
There are two key questions likely to be addressed in the appeal, both of which also arose in the UK, although only the first received substantive attention in the US. These are:
Can DABUS, as an ‘AI’ machine and not a human being, validly be named as an inventor on a patent application?
Can Dr Thaler, not being (at his own insistence) the inventor, establish a proper legal basis for entitlement to the grant of patents on inventions said to be generated by DABUS?
The issues in the UK case are somewhat different, and more nuanced, than in the US. While all three judges on the Court of Appeal agreed that an ‘inventor’ under the UK law must be a human being, the fact that DABUS is a machine was not immediately determinative of the outcome. An inventor is not required to play any active role in the filing, prosecution, or grant of a patent in the UK, so arguably there remains a question as to whether an application can be permitted to proceed even if a legally valid inventor has not been – or cannot be – named. In the event, the answer to this question turned on whether or not the applicant (i.e. Dr Thaler) could satisfy statutory requirements to name the inventor, and to indicate how he is entitled to be granted patents on inventions that he did not claim to have devised himself.
Lord Justice Arnold and Lord Justice Birss disagreed on the outcome, with the tie being broken by Lady Justice Elisabeth Laing, agreeing with Arnold LJ that the DABUS applications should be deemed withdrawn.
Arnold LJ is the preeminent patent law specialist on the Court of Appeal. He was elevated to the Court of Appeal in 2019, after being appointed to the High Court in 2008, and as Judge in Charge of the Patents Court in April 2013. In March 2016 he was appointed as an External Member of the Enlarged Board of Appeal of the European Patent Office. Impressive as this is, however, Birss LJ is no lightweight. In 2010 he was appointed as a Specialist Circuit Judge sitting in what was then the Patents County Court. In 2013 he was appointed to the High Court, and in 2019 he filled the place formerly held by Arnold LJ as Judge in Charge of the Patents Court, before being elevated to the Court of Appeal in January 2021.
So this is a case in which the dissenting judgment must be taken seriously, especially with the possibility still open of an appeal to the Supreme Court. But for now, at least, the balance of the law remains against DABUS in the UK.
On 27 August 2021, the Commissioner of Patents lodged an appeal (case no. VID496/2021) against the decision of Justice Beach in the Federal Court of Australia finding that the ‘AI’ machine known as DABUS could be named as sole inventor on an Australian patent application. Unusually, and presumably in recognition of the media and public interest generated by this case, IP Australia took the step of announcing the filing of the appeal, while emphasising that ‘[t]he appeal is centred on questions of law and the interpretation of the patents legislation as it currently stands’ and that ‘[t]he decision to appeal does not represent a policy position by the Australian Government on whether AI should or could ever be considered an inventor on a patent application.’ The appeal will most likely be heard by a Full Bench of the Federal Court comprising three judges, although in rare cases deemed sufficiently significant a five judge panel may be assigned. A hearing could take place as early as November this year, but at this stage it seems more likely to be scheduled for early in 2022.
These cases are, of course, of interest because they concern the fascinating question of whether non-human machines can be inventors for the purposes of obtaining patent. But they are also interesting for what they reveal about the differences between the treatment of inventors under US and UK law. In the US the inventor is central and indispensable – a position that arguably derives ultimately from the Constitutional authority for Congress to make laws ‘promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries’. In the UK, however – and in the view of Birss LJ in particular – the identity of the inventor is almost irrelevant in the majority of patents applied for, prosecuted and granted.
I will cover these latest developments in the DABUS saga over a series of three articles. In this first article, I will look at the approach taken to the role of the inventor in the US, how it differs from other jurisdictions, and the recent decision from the EDVA. The second article will cover the split decision in the UK, and how the differing opinions of eminent patent jurists Arnold LJ and Birss LJ stack up. Finally, in the third part I will look at where Australia sits, and consider whether either of the US and UK decisions may be of any relevance in the upcoming Full Court appeal.
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