The National Security and Investment Act 2021 (“NSI Act”) came fully into force on 4 January 2022, setting up a new regime for UK government scrutiny of acquisitions and investments. The NSI Act applies retrospectively to transactions from 12 November 2020. The NSI Act is intended to modernise UK Government’s powers to investigate and intervene in investments, mergers and acquisitions and other deals to protect national security as a foreign-direct investment (FDI) regime, while applying to UK and non-UK acquirers alike. It replaces the national security element of the Enterprise Act 2002. The regime is a hybrid mandatory and voluntary notification regime, supported by call-in powers on national security grounds.

The snappily named Agreement on Trade-Related Aspects of Intellectual Property Rights (or TRIPS for short as the full name hardly trips off the tongue) is a World Trade Organization (WTO) agreement badged as “the most comprehensive multilateral agreement on intellectual property to date”. It was signed in 1994 and is a “minimum standards” agreement which sets a baseline for IP protection; Members are able to provide more comprehensive protection if they wish and under certain circumstances flexibilities to the minimum standards are permitted. This agreement made headlines across the world in 2021 following proposals first tabled by India and South Africa at the WTO that a waiver should be agreed enabling Members to have more flexibility than currently allowed under TRIPS in respect of vaccines, therapeutics and diagnostics for the treatment or prevention of COVID-19. I finished my 2021 article on this matter with the following words: “It remains to be seen whether next year’s IP Federation Review article is talking about the impact of the introduction of a waiver or not – watch this space!”

In June of 2022, the UK Government responded to the AI and IP consultation (“Consultation”) and announced plans to implement a broad text and data mining (TDM) exception, including for commercial purposes. The response also assured that “rightsholders will still have safeguards to protect their content”. This announcement came after a lengthy and thorough engagement process via the AI and IP call for views (“Call for views”) and the subsequent Consultation. No one can accuse the government of not giving this issue careful consideration.

With apologies to Samuel Pepys and Helen Fielding, the extract below is fictional and intended to capture the variety and challenge of life working as part of an in-house IP department.

Monday

Early start today – I’m meeting with a project team to discuss their latest developments. We filed a priority patent application last year and are now reviewing recently generated data to determine claim scope before foreign filing. We spend a fascinating couple of hours digging into the results and technology, it’s a highly competitive area so I think there may be filings from third parties, we need to be careful to maintain priority and I draw some timelines for the project team to try to explain why that matters. The project team also has some creative thoughts around names for the technology.  

The Question of improving diversity and inclusion in the UK's IP profession remains a key commit­ment of this organisation. Last year we planted a flag committing the IP Federation to do more in this area, and now we are making good on that commitment. Last year in The IP Federation Review we pointed to the dangers of the Covid-19 pandemic worsening accessibility to the IP profession and having an adverse impact on the number of available jobs. The likelihood was that this would particularly affect black, Asian and ethnic minority people who were suffering more from the impact of the pandemic and who are disproportionately over-represented in the poorer communities.  

The IP Federation’s campaigns

The IP Federa­tion has invested considerable time and resource in 2021 in support of its aim of improving the intellectual property (IP) framework to meet the needs of innovative industry. Here are some of our key successes.

In last year’s IP Federation Review, it was reported that, despite 2020 being a turbulent year for the Unified Patent Court (UPC), progress appeared to have been made. This year, a much more positive statement can be made. Progress has definitely been made, with the Preparatory Committee estimating that the UPC will start operations around mid-2022. Whilst that may be a little optimistic, next year’s Review may be published as the doors of the UPC are finally opening.  

Legal scholars, business historians, and others now have access to a wealth of previously unavailable material showing how business reacted to and lobbied on IP law from 1920 to 1989. Until recently, the archive of the IP Federation was stored in a warehouse in Chatham, save for a few items retained in the IP Federation office. Operating under the IP Federation’s document retention and destruction policy, Council deemed the archive as suitable for donation to a scholarly library subject to a “30-year rule”. As a result, since mid-2021, this material has been publicly available in the Weston Library in Oxford, which houses the “special collections” of the Bodleian, the main research library of the University. Legal scholars and business historians have access to a wealth of material from the foundation of the Federation in 1920 up to the end of 1989.  

There have been no Court of Justice of the European Union (CJEU) referrals decided this year. The main activity on supplementary protection certificates (SPC) has been political with changes considered on a European Union level as part of the pharmaceutical legislation review and the much vaunted appearance of the Unified Patent Court (UPC) on the horizon at the end of the year.  

1.                   Introduction

There have been two main areas of activity concerning attempts to harmonise and improve the patent system in 2021: Substantive patent law harmonisation (SPLH) in conjunction with the B+ group of WIPO nations and procedural harmonisation before the IP5 group of Patent Offices.