IP Fridays - your intellectual property podcast about trademarks, patents, designs and much more

Rolf Claessen and Ken Suzan
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intellectual property including trademarks, patents and desgins – the latest news, useful tools

  1. Aug 28

    Dupe Culture Is a Legal Problem Now: What Caitlin Byczko Taught Us About Trade Dress, TikTok, and the Limits of Brand Enforcement – IP Fridays Podcast – Episode 178

    I am Rolf Claessen and my co-host Ken Suzan and I are welcoming you to episode 178 of our podcast IP Fridays! Today’s interview guest is Caitlin Byczko, who is partner with Marnes & Thornburg in their IP team. Ken is discussing dupe culture with her. Here is the profile of Caitlin Byczko https://btlaw.com/en/people/caitlin-byczko But before we launch into this very interesting interview, I have some news for you: On August 10th, 2026, Navitas Semiconductor filed suit against Renesas Electronics in the Eastern District of Texas, accusing Renesas of infringing four US patents on gallium nitride semiconductor technology through its SuperGaN product lines. The filing follows a countersuit Renesas brought on July 22nd, 2026, accusing Navitas and two of its employees of misappropriating trade secrets. It shows how patent disputes and trade secret claims between competitors are increasingly being fought on multiple fronts at once, and often as tit for tat. It also emerged on August 12th, 2026, that an EPO Board of Appeal had dismissed an appeal by Atlas Global Technologies and ruled that its WiFi patent, EP 3 353 901, case T 1230/25, could not be maintained in any form at all, even though the original opponents, TP-Link and Vantiva, had already withdrawn their oppositions. That knocked out the basis for several parallel infringement suits at the Unified Patent Court, which were then withdrawn. For suppliers and implementers, the takeaway is that fighting a patent held by a non-practising entity can still be worth it, even once the original opponent has thrown in the towel. On August 10th, 2026, the Unified Patent Court in The Hague fully revoked Maxell’s patent EP 2 061 230, covering technology for handing off content to a second device, and at the same time dismissed Maxell’s infringement claim against several Samsung entities, in cases UPC_CFI_251/2025 and UPC_CFI_769/2025. The judges found the patent to be nothing more than an obvious combination of routine adaptations, with no additional technical effect. And now – let’s hear the interview with Ken and Caitlin! A dupe used to be a quiet, slow thing. You’d stand in the cereal aisle, notice the generic box next to the name brand, buy it, tell a friend. Word spread over months. That world is gone. On this episode of IP Fridays, Ken Suzan sat down with Caitlin Byczko, partner at Barnes & Thornburg LLP in Indianapolis, to talk about what’s replaced it: a TikTok-driven economy where a single video can sell out a dupe product within hours, sometimes before the original brand’s own team even knows it exists. Byczko litigates and prosecutes trademarks across retail, fashion, luxury goods, technology, and pharmaceuticals, and she’s watched dupe culture evolve from a marketing footnote into one of the more active battlegrounds in trademark law. Here’s what she told us, and why it matters even if your brand has never heard the word “dupe” used about it. Counterfeit and Dupe Are Not the Same Thing, Legally Byczko opened with what she called the most important distinction in this entire conversation: the difference between a counterfeit and a dupe. A counterfeit uses someone else’s actual trademark. Think of a fake Chanel bag stamped with the interlocking C’s, or a fake Louis Vuitton logo. That’s straightforward infringement, and above certain thresholds, a federal crime. A dupe is different. It mimics the look, feel, or performance of a product without using the name or the logo at all. Elf Cosmetics, Zara, Costco’s Kirkland brand, and Quince have all built parts of their business on exactly this model. No one is pretending to be Chanel. They’re offering something that looks and performs similarly, at a fraction of the price, under their own name. Media and social media use “dupe” and “counterfeit” interchangeably. Legally, that’s sloppy, and it matters, because the two categories trigger completely different legal analyses. If There’s No Logo, What Are Brands Actually Suing Over? This is where trade dress comes in. Trade dress protects the overall look and feel of a product: packaging, color combinations, shape, label design. Byczko pointed out that most of us interact with trade-dress-protected products every day without realizing it. The test is likelihood of confusion. Courts look at how similar the products actually look, how sophisticated the shoppers are, and whether there’s real evidence that people were confused. Byczko flagged one case as a genuine roadmap for this area: Van Leeuwen v. Rebel Creamery, an ice cream trade dress dispute that came out of the Eastern District of New York. In her view, the strength of that case came down to how precisely the brand defined its trade dress for the packaging. That precision, she said, did a lot of the work toward the outcome. She’s also watching Lululemon v. Costco, which she expects to be significant partly because it doesn’t rely on trademark and trade dress alone. Byczko noted that brands are increasingly stacking causes of action together: trademark, patent, false advertising, all pointing at the same product. And she’s tracking Sol de Janeiro v. Macau Beauty, a case she finds notable because it pulls in influencer content and testimonials as evidence, not just packaging and trade dress claims. Macau Beauty, she noted, has already been sued multiple times across different jurisdictions. A note for readers outside the US: trade dress as a distinct doctrine doesn’t exist as such in Germany. The closest tools here are the three-dimensional trademark and, more practically, the wettbewerbsrechtlicher Nachahmungsschutz under Section 4 No. 3 of the German Act Against Unfair Competition (UWG). That provision protects product shape, packaging, and get-up against imitation when the original has wettbewerbliche Eigenart, competitive distinctiveness, and the copy creates avoidable confusion about origin, unfairly exploits the original’s reputation, or was built on dishonestly obtained know-how. It’s a narrower, more fact-specific tool than US trade dress, but the underlying logic Byczko describes, define your product’s distinctive features early and precisely, applies just as much on this side of the Atlantic. Why the Evidence Problem Changed Everything Ken asked what’s actually driving the current wave of disputes, and Byczko’s answer was simple: evidence. Ten or twenty years ago, if you sent a cease-and-desist letter or went to trial, you had almost nothing concrete to show about how consumers actually perceived two products. Now you have TikTok comment sections, influencer testimonials, and entire genres of “dupe content” documenting exactly what shoppers think, in their own words, in real time. In the Sol de Janeiro case, Byczko noted that part of the complaint isn’t just about packaging and trade dress. It’s about what influencers said, what claims they made, and what that content reveals about actual consumer confusion or the absence of it. That’s evidence litigators simply didn’t have access to a decade ago, and it cuts both ways: it can prove confusion, or it can just as easily prove there wasn’t any. Why Dupes Took Off: Economics, Status, and a Generational Shift Byczko was careful to frame this part as her personal read, not a sociologist’s conclusion, but it’s a read shaped by watching these disputes up close. Part of it is straightforward economics. Gen Z is shopping under real affordability pressure, and dupes let them participate in trend cycles without the price tag. Byczko cited a projected $12.6 trillion in Gen Z spending power by 2030, a generation too significant for brands to write off. The other part is cultural. A generation ago, owning a visible logo was the status symbol. Now, for a lot of younger shoppers, being the savvy one, the person who finds the dupe first and tells their followers about it, carries its own status. It’s less “I have the real thing” and more “I outsmarted the markup.” Byczko also pointed to growing public skepticism toward paying five or ten times more for a product purely because of the name on the packaging, particularly in beauty and fashion. The PR Trap: When Enforcement Backfires One of the sharpest points in the conversation was about what happens after a brand decides to enforce. Suing over a dupe can read very differently in public than it does in a courtroom. Byczko put it directly: going after a dupe can easily look, to the public, like a big corporation coming down on a small competitor, or worse, on its own customers, the same people who made the original brand aspirational in the first place. She’s seen this dynamic play out repeatedly in high-profile cases. Her advice: treat enforcement as a communication strategy, not just a legal one. Sometimes the smarter move isn’t a lawsuit at all. It’s a quieter cease-and-desist letter, a takedown request, or doubling down on marketing that explains what actually makes the original worth the price. Charlotte Tilbury has leaned hard into this approach, building campaigns around the idea that the original simply can’t be remade. Olaplex ran a similar play with its “OlaDupe” campaign. Legal and marketing, Byczko said, have to work together on this, not in sequence. What Brands Should Actually Do Byczko laid out three practical layers, all before litigation ever enters the picture. First: register your trademarks, and where a product design is genuinely distinctive, pursue trade dress or design patent protection early, before a dupe exists and before you know whether the product will even take off. That timing problem is real. Brands rarely know in advance which product will become the one worth copying. Her advice was to look at long-standing anchor products, the ones that have quietly c

  2. Jul 31

    Long-Arm Jurisdiction in Europe – Interview With the Mastermind Behind the BSH v. Electrolux Decision of the ECJ Dr. Ernst-Peter Heilein – His View on Follow-Up Cases Like Fujifilm, Regeneron, and Onesta – IP Fridays – Episode 177

    I am Rolf Claessen and my co-host Ken Suzan and I are welcoming you to episode 177 of our podcast IP Fridays! Today’s interview guest is Dr. Ernst-Peter Heilein, who is a German and European patent attorney, the founder of HEILEIN IP LAW, and a long-time IP leader at BSH Home Appliances. He is the mastermind behind the BSH v. Electrolux decision of the European Court of Justice about long-arm jurisdiction in Europe that has the whole patent world stirring in Europe at the moment! But before we jump into this fascinating interview, I have news for you! Emboline v. AorticLab (UPC Court of Appeal) The UPC Court of Appeal has clarified for the first time how a conditional revocation counterclaim should be handled, in a dispute over Emboline’s embolic protection patent EP 2 129 425 against AorticLab. A defendant can validly make its revocation counterclaim conditional on infringement being found first, meaning no ruling on the counterclaim is needed if the infringement claim fails, as the Munich Local Division had held. The Court of Appeal also closed a related gap: if the claimant appeals a non-infringement finding, the counterclaimant may conditionally appeal the unresolved counterclaim too. AorticLab missed its own appeal deadline and can now at best seek re-establishment of rights, while Emboline has already appealed the non-infringement finding. FujiFilm v. Kodak (UPC Court of Appeal) Following the closely watched long-arm jurisdiction ruling of June 2, the UPC Court of Appeal, chaired by Rian Kalden, has now granted FujiFilm an injunction against Kodak in a second proceeding. The Court upheld the limited printing plate patent and found that Kodak’s Sonora XTRA 3 plate infringes it. Kodak can no longer sell or use that plate in Germany. OpenAI v. EUIPO (General Court of the EU, T-555/25) The General Court’s Eighth Chamber dismissed OpenAI’s action against the EUIPO decision to partially cancel the OPENAI trademark. The partial refusal for classes 9, 42, and 45 rests decisively on Article 7(1)(c) EUTMR, the descriptiveness ground. For a significant part of the English-speaking public, “OPENAI” directly conveys that the goods or services are provided using freely accessible artificial intelligence. Dental Monitoring v. Align Technology (CAFC) On July 7, 2026, the Federal Circuit confirmed that AI and deep-learning patent claims covering dental image analysis are not patent-eligible under Section 101. Simply training a “deep learning device” on a specific dataset does not amount to a patent-eligible technical solution. Publisher v. Google (Munich I Regional Court) The Munich I Regional Court issued a preliminary injunction barring Google from spreading false factual claims about a publishing company in its AI Overviews. A search query combining the company’s name with the German term for “fraud scheme” had triggered an AI-generated summary containing entirely fabricated accusations of subscription traps. KPN v. Oppo (Federal Court of Justice, X ZR 103/24) On July 1, the Federal Court of Justice dismissed KPN’s appeal against the revocation of a central claim of its LTE patent EP 2 291 033. Oppo had successfully challenged the claim, leaving KPN’s infringement action against Oppo’s German distribution entity without a legal basis for now. BSH v. Electrolux: What the ECJ Ruling Means for Your Company’s Patent Enforcement Strategy A vacuum cleaner from 2001 has reshaped the European patent landscape. That sounds like an overstatement. It isn’t. For IP Fridays, I spoke with Dr. Ernst-Peter Heilein, founder of HEILEIN IP LAW and long-time Senior IP Leader at BSH Home Appliances. He guided the case BSH v. Electrolux from its first strategic idea all the way to the Grand Chamber of the European Court of Justice, a case that earned the 2025 Managing IP Award as “Europe Impact Case of the Year.” For managing directors, IP heads, and R&D leaders at German Mittelstand companies, this case is not a legal footnote. It changes where you can enforce your patents, and it changes where you yourself can be sued if your company operates across several European markets. That is what this article is about. Background: How a Patent Dispute Became an ECJ Case The invention dates back to 2001 and concerns a new vacuum cleaner technology. In 2006, BSH identified what it believed was an unauthorized use of that invention and contacted Electrolux to clarify the situation. The European patent was granted in 2009 and validated in a number of European countries. Nobody, Heilein says, could have imagined at the time that this matter would eventually reach the Grand Chamber of the European Court of Justice almost twenty years later. In late 2018, BSH successfully defended the patent through opposition and appeal proceedings before the European Patent Office. In 2019, the Higher Regional Court of Düsseldorf found that certain Electrolux vacuum cleaner models infringed the patent. A classic milestone win, the kind that occurs regularly in patent practice. Except the patent had been validated in many countries. Winning in Germany did not solve the enforcement problem everywhere else. Heilein describes the starting point in very concrete terms: how do you enforce a patent that exists in many countries without filing a separate lawsuit in every single one? And how do you prevent claims from becoming time-barred while you work that out? Running parallel proceedings in multiple countries is not just legally complex. It consumes time, personnel, and money that a mid-sized company rarely has in that quantity to spare. This is exactly where the real value of this case for you begins. From the outset, this was never an academic debate about jurisdiction. It was a question that every company holding rights in more than one country eventually faces: how do you enforce your rights efficiently without burning your budget on ten parallel proceedings? Brussels Ia Regulation: The Underrated Article 4 While searching for a solution, the BSH team came across Article 4 of the Brussels Ia Regulation. The underlying idea is simple: a person can generally be sued in the country where that person is based. In the BSH case, that pointed toward the Swedish home court, because Electrolux is headquartered in Stockholm. For a long time, this rule played no real role in patent practice. The widely held view was that cross-border patent litigation in Europe was effectively dead the moment a defendant challenged the validity of the patent. Anyone wanting to enforce a patent across several countries appeared to have no choice but to litigate country by country. Heilein and his team questioned that assumption instead of simply accepting it. This is the point I find most instructive: challenging accepted assumptions in your own field is often the difference between a standard solution and a strategic one. In 2020, the team decided to file the action in Sweden, aware that they were looking at a possibility, not a guarantee. Cross-Border Enforcement: The Three Questions Referred to Luxembourg After Electrolux challenged the validity of the patents, the Swedish home court declared itself not competent to hear the case. BSH appealed, and the Swedish Court of Appeal agreed to refer three questions to the European Court of Justice. The first question addressed the core problem: does a home court that would otherwise have jurisdiction over an infringement claim lose that jurisdiction simply because the defendant argues the patent is invalid? The second question concerned a feature common to many legal systems, including Germany’s, where infringement and validity are decided in separate proceedings. The third question originally concerned Turkey. Today, most people immediately think of the United Kingdom, and some even think of US patents. Originally, the question was simpler: do the same jurisdiction rules apply to patents from countries outside the European Union? The fact that the ECJ first assigned the case to a Chamber of seven judges and later referred it to the Grand Chamber of 15 judges already signaled how much weight the Court placed on these questions. The Judgment: What the ECJ Actually Decided A home court does not automatically lose jurisdiction simply because the defendant argues the patent is invalid. For many years, the opposite was widely assumed to be settled law. The ECJ made clear that this reading was too narrow. The court where the defendant is based can generally continue to hear the infringement case. One point matters for how you read this ruling: questions concerning the validity of a European patent still fall to the national courts of the country for which the patent was granted, as provided in Article 24(4) of the Brussels Ia Regulation. What is new is that the infringement case does not automatically collapse the moment validity is challenged. The home court keeps control of the overall proceeding. For patents from EU Member States, the home court does not automatically lose jurisdiction. It assesses the validity challenge. If it looks strong, the home court may stay the infringement case. If it looks weak, the home court may proceed. For patents from non-EU countries, the home court may stay the case if a validity proceeding is already pending there, drawing on Articles 33 and 34 of the Brussels Ia Regulation. The result is a considerably more flexible system than most observers expected . Patents from Outside the EU: Long-Arm Jurisdiction The part of the judgment with the greatest international reach concerns patents from countries outside the EU. The ECJ ruled that the special jurisdiction rule for patent validity generally does not apply to non-European patents. That means the general rule can apply instead, opening the door for infringement claims ba

  3. Jun 26

    Creator Economy Law: What Every Creator Needs to Know About AI, Platforms, and Their Rights – Interview with Franklin Graves of Linkedin – IP Fridays Podcast – Episode 176

    My co-host Ken Suzan and I are welcoming you the episode 176 of the IP Fridays Podcast. Today’s interview guest is returning guest Franklin Graves, who is a senior counsel at Linkedin and teaching IP law at Emerson College. With my co-host Ken Suzan he is discussing how the law for creators has dramatically changed in the past years. Franklin Graves is expressing his personal views and not the views of Linkedin or Microsoft. He is talking about the paper “Upload Complete” before he joined Linkedin. Bio: https://www.linkedin.com/in/franklingraves/ Paper: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5271442 Website: https://creatoreconomylaw.com/ But before we jump into this interview, I have news for you! Richard Meade, a judge on the UK High Court and one of the most prominent figures in European patent law, was appointed Lord Justice of Appeal at the British Court of Appeal on June 12, 2026. Meade played a key role in numerous landmark British patent decisions, particularly in the area of standard-essential patents (SEPs) and FRAND licenses. In Insulet Corp. v. EOFlow Co., No. 2025-1807, the U.S. Court of Appeals for the Federal Circuit completely overturned the original $452 million judgment (which had already been reduced by the District Court to $59.4 million) in favor of Insulet. In its decision of June 2, 2026, in the case of Fujifilm v. Kodak, the UPC Board of Appeal provided comprehensive clarifications regarding so-called “long-arm jurisdiction”—that is, the question of whether the UPC can also rule on national patent claims outside the UPC territory (such as in the United Kingdom). In 14 guiding principles, the judges established specific procedural rules for various categories of cases. There is no automatic UPC jurisdiction over national patent claims outside the UPC territory. The Munich Regional Court has issued an arrest warrant against the managing director of Polytech Health & Aesthetics GmbH because he is alleged to have continued to exploit the Brazilian company Silimed’s patent for breast implants despite a preliminary injunction. A number of IT and automotive industry associations—which are among the most frequent users of Inter Partes Reviews (IPR) at the U.S. Patent and Trademark Office—have filed an amicus brief with the Supreme Court, urging the Court to grant Google’s certiorari petition. An attorney for a Las Vegas performer has asked a California federal judge to temporarily prohibit Taylor Swift from using “The Life of a Showgirl” as a trademark while the trademark lawsuit is pending. Swift’s attorney called the lawsuit baseless. And now let’s hear Ken discuss creator law with Franklin! AI, Platform Law, and the Creator Economy: What Businesses Need to Know Now Franklin Graves has spent his entire career watching digital content move through systems that most people never see. He started in marketing at a major music label right out of law school, then represented individual creators on YouTube in a pro bono capacity, then moved to the platform side at Eventbrite, and today works as Senior Product Counsel at LinkedIn, where he focuses on AI, data, and the regulatory questions that come with both. His recently published law review article, Upload Complete: An Introduction to Creator Economy Law, is the first academic paper to address the creator economy as a distinct legal field. In a recent episode of the IP Fridays podcast, he spoke with host Kenneth Suzan about responsible AI development, platform regulation, and what it actually means to own your audience in a world where the rules keep changing overnight. From Content Creator to Platform Lawyer The through-line in Graves’ career is a genuine understanding of how content moves from an idea in someone’s head to an audience on a screen. That experience, he argues, is precisely what in-house counsel needs right now. Lawyers working on AI and product development cannot afford to sit at a distance from the technology they are advising on. They need to use the tools, experience them as a creator or end user would, and understand the nuances of how a product actually operates before it reaches the public. Understanding the product first is the precondition for everything else. That philosophy translates directly into how he approaches responsible AI implementation. The landscape of AI standards is crowded: NIST frameworks, the EU AI Act, sector-specific guidance, and a growing body of industry-adopted best practices. The challenge for in-house counsel is not knowing that these standards exist. It is making them actionable for the engineering and product teams they support. Abstract principles need to become concrete controls and workflows. Graves offers one practical shortcut: most companies already have open source software review processes that involve the right stakeholders, the right sign-off levels, and the right security checks. Layering the specifics of generative AI or large language models onto those existing processes is far more efficient than building something new from scratch. A Fragmented Regulatory World The geopolitical dimension of AI regulation is something Graves thinks about constantly in his role at LinkedIn. The EU AI Act, shifting US executive orders, and country-specific approaches to data privacy have created a regulatory environment that can change the rules of the game without warning. His analogy is instructive: creators have long understood what it means to build a community on a platform they do not own. An algorithm change, a policy update, or a government ban can wipe out years of audience-building overnight. Businesses deploying AI tools globally now face a structurally similar problem. The response, for creators and for platforms alike, is to build resilience rather than rely on stability that may not last. TikTok is the clearest recent example. When the platform faced the prospect of being shut down in the United States on national security grounds, it triggered a broader conversation about platform dependence that had been building for years. Creators who had invested their entire business in one platform suddenly confronted the possibility that their audience could simply disappear. The lesson is not that platforms are bad. It is that concentration of any kind, whether it is your audience, your data pipeline, or your regulatory compliance strategy, creates fragility. What Is a Creator, Legally Speaking? One of the central contributions of Graves’ law review article is definitional. The terminology matters more than it might seem. When courts and regulators talk about creators without a shared understanding of what that word means, the resulting legal analysis tends to miss the mark. Graves draws a distinction between users who post content, creators who post with the intent to build an audience and eventually monetize it, and influencers, a subset of creators who are actively running a small business through their content. The difference is intent. A parent posting family photos on Facebook is a user. Someone building a subscription community around their professional expertise is running a business, and the legal framework that applies to them should reflect that. That distinction matters practically when it comes to liability. As more creators build their own platforms, whether through custom membership sites, open source tools like Ghost, or federated social networks, they take on obligations that previously fell to large platforms: content moderation policies, privacy notices, terms of service, and compliance with data regulations across multiple jurisdictions. A creator in Tennessee running a membership platform with subscribers in Germany is operating a global business, whether they think of themselves that way or not. Protecting Children Online: A Question Without a Clean Answer The tension between age verification and privacy is one of the more difficult problems in platform law right now. Australia, several European countries, and a growing number of US states have introduced or passed minimum age requirements for social media accounts. The technical challenge is real: verifying age online requires collecting identifying information, and collecting identifying information creates privacy risk, particularly for the young people the laws are designed to protect. Who should bear the responsibility for that verification is also unresolved. Is it the platform? The app store? The mobile operating system? Graves does not pretend there is a clean answer, but he points to the mobile layer as an underexplored option. The Apple App Store and Google Play Store already have significant leverage over which apps reach users on their devices. Whether that leverage should extend to age verification is a question that deserves more attention than it currently receives. The Right of Publicity in the Age of AI Voice cloning, digital replicas, and AI-generated synthetic media have pushed the right of publicity into territory that traditional IP law was not designed to cover. Trademark law, copyright law, and existing publicity rights each capture part of the problem but none of them covers it completely. The result, as Graves describes it, is a period of experimentation: lawyers filing trademarks on vocal sounds and phrases, states updating their publicity statutes to explicitly mention artificial intelligence, and entertainment unions negotiating over who controls a performance and any AI-generated iterations of it. Tennessee’s Elvis Act is a concrete example of the legislative response: the state updated its right of publicity law to include voice and to reference AI directly. Similar efforts are underway elsewhere. The underlying challenge is calibrating protection so that it gives creators and performers meaningful control over their li

  4. May 29

    Non-technical Features For Assessing Inventive Step – Alternatives to the Problem Solution Approach – Emotional Perception AI Limited Case of the UK Supreme Court – Abbout vs. Sinocare UPC Case – Interview with Bruce Dearling – IP Fridays Podc

    [powerpresss] My co-host Ken Suzan and I are welcoming you to episode 175 of our podcast IP Fridays! Today’s interview guest is Bruce Dearling, patent attorney and partner at Hepworth Browne in the UK, and we talk about how non-technical features must be considered when assessing inventive step of patents at least according to recent decisions of the UK supreme court and the Unified Patent Court.  Profile of Bruce Dearling UK Supreme Court Emotional Perception AI Limited UPC Abbot vs Sinocare But before we jump into this interesting interview, I have news for you: On May 20, 2026, the Swiss Federal Council adopted the fully revised Patent Ordinance, which will enter into force on January 1, 2027, together with the revised Patent Act. In the future, the Swiss Federal Institute of Intellectual Property will prepare a mandatory search report for each application; applicants can choose between a partially examined version and a full examination that assesses novelty and inventive step. The full examination costs an additional 300 Swiss francs, and renewal fees will increase by a total of eight percent over the 20-year term.  On May 19, 2026, Asus entered into a licensing agreement with the Wi-Fi multimode patent pool managed by Sisvel, thereby ending all ongoing infringement proceedings. Sisvel bundles standard-essential patents in the pool from, among others, Atlantia, ETRI, and Mitsubishi Electric. On May 18, 2026, the UPC Local Chamber in Düsseldorf rejected Align Technology’s application for a preliminary injunction against its Chinese competitor Angelalign. Angelalign may continue to sell its clear aligners within the UPC jurisdiction. Our partners Dirk Schulz, Ulrich Storz, and Wanze Zhang, together with Arnold Ruess, successfully represented Angelalign. The U.S. Patent and Trademark Office (USPTO) announced midweek that, since October of last year, it has invalidated or is seeking to invalidate approximately 10,500 trademark applications and registrations in eleven administrative orders. Reasons include forged attorney signatures and the fabrication of non-existent filing requirements. This stems from ongoing abuse of the U.S. trademark system, primarily by non-U.S. applicants, which can lead to conflicts with validly registered trademarks for legitimate businesses.  On May 12, 2026, the British Court of Appeal overturned a lower court decision that would have required Nokia to grant interim licenses for video coding patents. The court found that Nokia’s license offer to the Taiwanese manufacturers Acer and Asus had already been made on RAND terms. In May, the U.S. Department of Justice (DOJ) filed a brief in the ongoing Corteva v. Inari litigation, expressing antitrust concerns regarding certain patent practices in the field of plant breeding. This marks the first time the agency has actively intervened in a biopharmaceutical patent dispute with implications for seed innovations. Episode 175 of the IP Fridays podcast was a conversation I will not forget quickly. My guest Bruce Dearling, partner at Hepworth Brown in the UK and a patent attorney for 36 years, took a case through every level of the British court system up to the Supreme Court and, in doing so, fundamentally changed patent law for AI inventions in the UK. The case is called Emotional Perception, and its effects reach well beyond British borders. Below I summarize the key points from our conversation. The full episode is available at IP Fridays. A. What Is the Emotional Perception Case About? The underlying invention concerns artificial neural networks. Specifically, it relates to a method of closing what is called the semantic gap at the output of a neural network. That sounds abstract, but the idea is straightforward: a neural network always produces an output that does not fully correspond to what a human would actually expect or feel. Closing that gap brings the system closer to human perception and human expectations. Bruce Dearling drafted this application himself and filed it at the UK Intellectual Property Office (UKIPO). The Office rejected it as excluded subject matter, characterizing it as essentially a computer program as such. The legal basis for that rejection was the Aerotel decision from 2006. The case then went to the High Court, which found in favor of the applicant. The Court of Appeal reversed that decision. Then the UK Supreme Court stepped in and changed everything. B. The Aerotel Test and Its Flaws Since 2006, the Aerotel test had been the standard British method for assessing whether an invention falls within the excluded categories under patent law. It was a four-step approach: construe the claim, identify the actual contribution the invention makes to human knowledge, ask whether that contribution falls solely within excluded subject matter, and finally check whether the contribution is technical in nature. The problem Dearling described in our conversation is that Aerotel reverses the logical order of the analysis. You start with the contribution and only then ask about the exclusions under Article 52 EPC. The UK Supreme Court described Aerotel in its judgment as “unsound law” and overturned it. The EPO’s Technical Boards of Appeal had previously called Aerotel “disingenuous,” which at the time led to a public dispute between the British courts and the Boards. With the Emotional Perception ruling, that conflict has now been resolved in favor of harmonization with the EPO. C. What the UK Supreme Court Decided The Supreme Court made two central findings. First, the exclusion of computer programs “as such” is overcome as soon as a claim includes any piece of hardware. It does not matter whether that is a processor, a memory module, or any other component. The threshold is deliberately low. Dearling described this as the “any hardware” approach, which aligns fully with the EPO’s position following G1/19. Second, and in Dearling’s assessment the more important finding: when assessing inventive step, the invention must be considered as a whole. The Court introduced what it called an “intermediate step,” an analytical stage in which the interactions between all features of a claim are examined before the question of inventive step is addressed. Non-technical features cannot simply be struck out if they contribute to the overall technical effect of the invention. D. Inventive Step: The Intermediate Step This is the heart of the judgment. In EPO practice, Dearling said, it happens regularly that examiners strike through features they consider non-technical and thereby fail to assess the invention’s inventive step correctly. A recent Technical Board of Appeal decision, T 1249/22, already criticized this approach: a claim directed at a technical solution to a problem can be patentable even if the underlying problem is non-technical in nature. Dearling recalled a remark made by a Board of Appeal member at a hearing he attended years ago: “We understand that examining divisions can operate with a degree of mental laziness and that it’s too easy to throw too many things out of the basket when considering the issues of inventive step.” That quote stayed with him because it names a structural problem that the intermediate step now addresses directly. The British method for assessing inventive step is the Pozzoli test, which differs from the EPO’s problem-solution approach. The Supreme Court explicitly retained Pozzoli because the problem-solution approach, in its view, is structurally infected with hindsight reasoning: you already know the invention, you work backwards to formulate an objective technical problem, and then you ask whether it would have been obvious for the skilled person to arrive at precisely that solution. Dearling sees this as a source of unfairness toward genuine inventions. E. Alignment with the Unified Patent Court In April 2025, the Court of Appeal of the Unified Patent Court issued a decision in Abbott v. Sinocare (APP_000000901/2025, judgment of 17 April 2025). Dearling pointed out that this decision uses language and reasoning strikingly similar to the UK Supreme Court’s Emotional Perception ruling of February 2025. That is significant because the UPC is bound neither by UK courts nor by the EPO. The overlap suggests voluntary convergence. Dearling reported a conversation with a person close to the EPO, whom he did not name, who used the word “permissive” to describe the UK Supreme Court’s approach and indicated that the EPO might move toward it. Whether and how quickly that happens remains to be seen. What is clear is that the UPC, as the new European patent court, is setting its own standards, and the question of how to handle non-technical features in inventive step assessment is now being asked at multiple levels simultaneously. F. Implications for the EPO and Practice The EPO is not directly bound by the ruling. It is an administrative body, not a court. Dearling is nonetheless optimistic that change is coming. On one hand, external pressure is building: when the UK Supreme Court and the UPC articulate similar principles, convergence becomes hard to resist. On the other hand, Article 27.1 TRIPS requires all contracting states to make patents available in all fields of technology. Examiners routinely striking non-technical features from AI claims and rejecting them on that basis sits uncomfortably with that obligation. For the underlying application in the Emotional Perception case, the ruling has a pointed consequence. The Supreme Court did not grant the patent itself; it referred the matter back to the UKIPO for reconsideration under the intermediate step. The Office’s subsequent response was, in Dearling’s words, unconvincing. He suspects the Office is attempting to reintroduce the Aerotel test through

  5. May 1

    Interview with Brian McGinnis – Data as a Strategic Asset, Not a Compliance Burden – AI Governance and the Acceptable Use Policy – Website Tracking Tools and the Wiretapping Litigation Wave – IP Fridays Podcast – Episode 174

    My co-host Ken Suzan and I are welcoming you to episode 174 of our podcast IP Fridays! In today’s interview, Ken Suzan interviews Brian McGinnis, partner at Barnes & Thornburg and co-chair of the firm’s data security and privacy practice, about why companies need to stop treating data privacy as a compliance burden and start treating it as a core business asset. McGinnis argues that data is either a managed asset or an unmanaged liability, with no middle ground. But before we jump into this interview, I have news for you! The EPO saw a Record Year with 200,000+ Patent Applications in 2025:  German filings dropped 2.2% while China grew 9.7%, overtaking Japan for the first time. Germany remains Europe’s top patent nation but loses ground globally. SMEs and universities now account for nearly half of all Unitary Patents granted to European innovators. News from the UPC Court of Appeal: Non-Technical Features Count for Inventive Step. An April 17 ruling clarifies that all claim features must be evaluated in their combined effect, including non-technical ones. Companies with software-related or mixed-technology inventions pending at the EPO or UPC should reassess recent inventive step objections at the UPC in light of this decision. Nokia Withdraws UPC and Munich Suits After Global FRAND Settlement; Following a global FRAND rate-setting decision by the UK High Court, Nokia withdrew parallel suits against Warner Bros. and Paramount at the UPC and in Munich. One UK ruling resolved litigation spanning Germany, the UPC, the US, and Brazil simultaneously. China Abandons Anti-Suit Injunctions in SEP Disputes: After a WTO arbitration ruling from July 2025, China withdrew its practice of blocking SEP holders from filing suits abroad. The EU Commission continues monitoring compliance, since the former policy was largely informal rather than codified in statute. The Trump Administration has put 100% Tariffs on Imported Patented Pharmaceuticals: Based on Section 232, the Trump administration imposed 100% tariffs on patented drugs and biologics effective April 2, 2026, with a 120-day transition period until July 31. EU member states face a reduced rate of 15%. Generics and biosimilars are explicitly excluded. China Rejects 1.27 Million Trademark Applications in Three-Year Crackdown:  China’s CNIPA rejected over 1.27 million trademark applications and invalidated more than 3,300 marks, targeting so-called edge-ball marks designed to mislead consumers about product quality or origin. The announcement was made at an official press conference on April 23, 2026. Now let’s jump into the interview with Brian McGinnis! Brian McGinnis is a partner at Barnes & Thornburg and co-chair of the firm’s data security and privacy practice. In this episode of IP Fridays, he argues that companies treating data privacy as a compliance burden are missing the point entirely and leaving significant value on the table. Data Is Either an Asset or a Liability Most companies still treat their data as invisible and costless. They do not manage it the way they would manage a patent portfolio or a trademark. That, McGinnis argues, is a fundamental strategic error. Data is either a managed asset or an unmanaged liability. There is no middle ground. When companies invest in understanding what data they collect, how it is used, and who has access to it, they unlock opportunities to drive real revenue and growth. Done right, a data governance program is not a cost center. It is a foundation for trust, operational efficiency, and competitive advantage. One Program, Not Twenty With more than 20 US state privacy laws now in effect, and major economies worldwide introducing their own frameworks, building separate compliance programs for each jurisdiction is neither practical nor smart. McGinnis recommends a single, comprehensive governance framework designed around the core purpose and intent of privacy law, flexible enough to absorb new requirements as they emerge. Companies that threw together a quick program when California’s CCPA came into force in 2020 are now overdue for an upgrade. The goal is to move from reactive compliance to a mature, proactive program that positions the company ahead of the regulatory curve rather than perpetually catching up. Website Tracking Tools: An Underestimated Risk One of the fastest-growing areas of privacy litigation involves tracking technologies built into company websites: pixels, session replay tools, analytics scripts, and chat widgets. Legal teams are often entirely unaware of what IT or marketing has deployed. That gap is expensive. Plaintiffs’ attorneys are applying 1970s-era telephone wiretapping statutes, including the California Invasion of Privacy Act, to argue that collecting any personal information, including IP addresses, before a user has consented constitutes illegal interception. Demand letters are being sent at industrial scale, with settlements typically running between $10,000 and $20,000 per case. What makes this particularly difficult is that a company can be fully compliant with statutory privacy law and still face these wiretapping claims, because the legal theory turns on the timing of data collection rather than the existence of a privacy notice. Vendor Contracts: The Hidden Exposure Marketing and technology agreements are another major source of unmanaged data risk. When a company deploys a third-party tool that handles personal data, the underlying contract needs to define precisely who owns that data, what the vendor is permitted to do with it, and what obligations flow down to any sub-processors involved. McGinnis draws a direct parallel to IP licensing: owning valuable data and then handing it to a vendor under a poorly drafted agreement is the equivalent of signing a bad IP license. Data processing agreements need to cover ownership, use restrictions, sub-processor obligations, breach notification timelines, audit rights, and deletion obligations. Many companies simply do not have these terms in place. Without them, a vendor who suffers a breach of non-personal business information has no contractual obligation to disclose it. Consumer Rights Requests: Process Matters Privacy laws give individuals the right to access, correct, delete, and opt out of the use of their personal data. Responding to these requests effectively requires pre-built processes, trained staff, and the technical ability to locate and act on individual data across all systems and sub-processors. Most companies, before engaging in formal data mapping, are not in a position to do this reliably. Staff failing to recognize a deletion request as a legal data subject request and routing it through a standard customer service queue instead is one of the most common failures McGinnis sees. The consequences can include regulatory complaints and class action lawsuits, particularly when a company continues to send emails to someone who has already requested deletion of their data. A newer risk involves Global Privacy Controls: browser-level opt-out signals that regulators and courts are now treating as legally binding deletion and non-collection requests. Companies receiving these signals daily without acting on them face growing exposure under several state laws. AI Governance: Policy Before Tools Generative AI tools are now embedded across business functions, from contract review and customer service to content creation and internal search. McGinnis is direct: every company needs an AI acceptable-use policy, and the absence of one is not a neutral position. Without clear rules, employees will use unapproved or publicly available tools regardless, feeding proprietary and sensitive information into open models with no control over how that data is used or retained. He draws a precise parallel to patent law. Posting proprietary information into an open AI system carries the same risk as publishing it publicly, potentially destroying patentability. The distinction between closed, organization-specific AI systems and open, publicly accessible ones is something employees need to understand explicitly. Making compliance easier than non-compliance is the practical goal. The Regulatory Outlook: More Laws, More Enforcement McGinnis expects the regulatory landscape to continue expanding. The EU AI Act is already setting the direction, and several US states have introduced or are developing AI-specific legislation. The pattern mirrors what happened with data privacy: Europe leads, US states follow in a patchwork, and federal legislation remains uncertain. Enforcement of existing privacy laws is also intensifying. GDPR has been in force since 2018, CCPA since 2020, and regulators are now past the period of extended tolerance for companies that are still catching up. Companies with immature compliance programs should expect less patience from regulators going forward. McGinnis closes with a clear point of view: if you have to comply anyway, get credit for it. A well-built governance program is a trust signal to customers, a sales asset, and a foundation for responsible AI use. Compliance done right is not a tax. It is a differentiator. The Full Transcript: Ken Suzan: Our guest today on the IP Fridays podcast is Brian McGinnis. Brian is a partner with Barnes and Thornburg and a founding member and co-chair of the firm’s data security and privacy law practice group. Brian serves as a member of the intellectual property department and the internet and technology practice. Brian is a Chambers Global and national ranked privacy and data security attorney, a certified information privacy professional, and the firm’s chief privacy officer. Brian brings nearly two decades of experience at the intersection of law and technology. Brian advises on a wide range of technology-driven leg

  6. Mar 27

    Interview with Deborah A. Hampton – President of the International Trademark Association – 2026 INTA Annual Meeting – Anti Counterfeiting – Presidential Task Force for Unifying IP Protection & Enforcement Strategy – IP Fridays Podcast – Epis

    Register for the 2016 INTA Annual Meeting at https://inta.org !! In a recent episode of the IP Fridays podcast, I spoke with Deborah Hampton, President of the International Trademark Association (INTA) and Global Brand Enforcement and Trademark Team Leader at the Chemours Company. I am Rolf Claessen and my co-host Ken Suzan and I are welcoming you to episode 173 of our podcast IP Fridays! Today’s interview guest is Deborah Hampton. She is the Global Brand Enforcement & Trademark Team Leader at The Chemours Company and is currently serving as the president of the International Trademarks Association. But before we jump into this interview, I have news for you: The US Department of Justice and the USPTO filed a joint statement supporting the right of Non-Practicing Entities (NPEs) to seek injunctions against patent infringers. This position challenges established post-eBay case law, which has made it difficult for NPEs to obtain injunctive relief. The UPC Court of Appeal ruled that security for costs can be provided through specialized insurance policies. This significantly lowers the financial barriers to bringing patent actions at the UPC, as companies no longer need to deposit large amounts of liquid capital as security. Huawei has filed a new lawsuit at UPC Mannheim against twelve Walt Disney Group companies (Ref. UPC-CFL-0000352/2026), asserting EP 3 211 897 relating to transform coefficient coding under the HEVC standard used by Disney+. Two additional suits were filed at Munich Regional Court I. In a parallel action, Huawei is suing Meta and Facebook at the UPC over EP 3 471 419, covering video compression in end devices. This continues Huawei’s strategy of pressuring streaming and platform providers into licensing its SEP portfolios. In a landmark first, the UPC Court of Appeal has referred a legal question to the European Court of Justice (ECJ): whether the UPC has jurisdiction over defendants without a seat in a UPC member state, provided a co-defendant is domiciled within the UPC territory (“long-arm jurisdiction”). The case arose from a dispute between Dyson and Chinese competitor Dreame; the first-instance injunction was simultaneously extended to cover newer Dreame hair dryers. For German companies, this signals a gradual expansion of UPC jurisdiction beyond its territorial borders, with significant implications for cross-border patent strategy. And now let’s jump into the interview with Deborah Hampton: Our conversation covered one central question:How must intellectual property enforcement evolve in a world that is more global, digital, and complex than ever before? A Career Built on Intellectual Property Deborah Hampton has spent more than four decades in the field of intellectual property. She began her career as a paralegal in a small IP firm in New York and quickly discovered her passion for the subject. Over the years, IP has taken her around the world. She has worked with leading professionals, governments, and institutions. Her experience reflects a key truth: IP is not a narrow legal discipline. It is a global ecosystem that connects law, business, innovation, and policy. Counterfeiting: A Much Bigger Problem Than Many Think One of the key topics in our discussion was counterfeiting. Many people still see counterfeit goods as a minor issue—cheap handbags or fake T-shirts bought on holiday. But the reality is far more serious. Counterfeiting creates real risks for consumers because products often bypass safety and quality standards. It damages trust in brands and undermines legitimate marketplaces, especially online. The economic impact is also significant. Companies lose revenue, innovation slows down, and jobs are affected. Smaller businesses suffer the most because they often lack the resources to fight counterfeiting effectively. Perhaps most concerning is the link to organized crime. Counterfeiting is not an isolated activity. It is often part of larger illegal networks. From Deborah Hampton’s perspective, effective enforcement must address both supply and demand. That includes stronger border measures, better online enforcement, and, importantly, consumer education. The Core Problem: Fragmentation in IP Enforcement A central theme of the interview was fragmentation. Many companies approach IP protection in silos. Legal teams, cybersecurity experts, business units, and external advisors often work separately. Even when they pursue the same goal, their efforts are not aligned. This leads to inefficiencies, missed opportunities, and unnecessary risks. To address this, Deborah Hampton has launched a Presidential Task Force at INTA. The goal is to create a unified approach to IP protection and enforcement. The idea is simple but powerful:Bring all stakeholders together and align strategy, enforcement, and measurement. This includes not only companies and their advisors but also regulators, courts, customs authorities, and IP offices. Only a coordinated approach can effectively address global challenges like counterfeiting. The Changing Role of IP Professionals Another important insight is how the role of IP professionals is changing. In the past, IP work was often reactive and focused on legal protection. Today, expectations are much higher. IP professionals are now expected to: Act as strategic advisors to the business Align IP with commercial goals Manage global and digital portfolios Use data to make better decisions At the same time, new technologies such as artificial intelligence are transforming how IP is managed and enforced. These tools create efficiencies but also raise new legal and strategic questions. Budget constraints add another layer of complexity. Teams must achieve more with fewer resources. In short, IP professionals must become more strategic, more integrated, and more business-focused. Why the INTA Annual Meeting Matters We also discussed the upcoming INTA Annual Meeting in London. For many in the field, this event is the most important gathering of the year. It brings together more than 10,000 professionals from around 140 jurisdictions. According to Deborah Hampton, the value lies in three areas: First, the return on investment is exceptionally high. The combination of education, networking, and business development is difficult to replicate elsewhere. Second, the educational program is extensive. It covers law, policy, technology, and the business of intangible assets. Third, the networking opportunities are unmatched. The meeting creates a unique environment where a year’s worth of work can be done in a single week. At the same time, Hampton addressed a sensitive issue: attending without registering. She made it clear that this practice undermines the entire system. Without proper support from participants, events like this would not be possible. A Clear Message for the Future If there is one key takeaway from the conversation, it is this: Intellectual property protection must become more coordinated, more strategic, and more closely aligned with business objectives. The challenges are growing. Counterfeiting is more sophisticated. Markets are more global. Technology is changing rapidly. But the opportunity is also clear. By breaking down silos and working together across functions and borders, companies can protect their IP more effectively and create real value. For IP professionals, this means stepping into a broader role. Not just as legal experts, but as strategic partners in the business. Rolf Claessen: Today’s guest on the IP Fridays podcast is Deborah Hampton. If you don’t know Deborah, she’s the global brand and enforcement and trademark team leader at the Chemours company and is currently serving as the president of the International Trademark Association. Thank you for being on our podcast IP Fridays, Deborah. Deborah A. Hampton: Thank you. Thank you for having me. Rolf Claessen: So you have been in the field of IP for more than 25 years now. How did you get there and where did it lead to you? Deborah A. Hampton: I’ve actually been an IP practitioner for 43 years. I started at a small IP firm in New York; it was my first paralegal position, and I fell in love with IP from the very beginning. This field has allowed me to travel the world meeting some amazing and brilliant colleagues as well as high-ranking government, judicial, and IPO officials. I’ve also worked extremely hard to stay abreast of trends, statutes, precedent cases, and practices that enhance the way we do our jobs. Rolf Claessen: Wow. That sounds really exciting. I didn’t know you’ve been in the field so long. Great to hear that. So I’m personally very interested in the fight against counterfeit goods. Why, in your personal opinion, is it so important to fight counterfeit goods? Maybe you can share your thoughts on why it is important and a little bit about how you do it. Deborah A. Hampton: There are a number of factors that I always take into consideration when it comes to counterfeit goods. Starting with consumer safety, counterfeits often bypass safety and quality standards, putting consumers at real risk. Then there’s consumer trust; fake goods undermine confidence in brands and legitimate marketplaces, especially online. Economic harm is another factor; counterfeiting drains revenue from lawful businesses, weakens innovation, and ultimately costs jobs. Smaller businesses (SMEs) are hit the hardest because they lack resources to combat fakes at scale. The factor that scares me the most is organized crime, as counterfeiting fuels criminal networks and is linked to broader illicit activity. There is also the issue of fair competition, where fake goods distort markets by undercutting compliant,

  7. Feb 27

    AI is Becoming the World’s Most Powerful Creative Tool—But Who Owns What It Creates? – Interview with Co-Founder & CEO of Inception Point AI, Jeanine Wright, and Mark Stignani, who is Partner & Chair of Analytics Practice at Barnes & Thornburg LLP

    I am Rolf Claessen and together with my co-host Ken Suzan I welcome you to Episode 172 of our podcast IP Fridays. Today’s interview guests are Co-Founder & CEO of Inception Point AI, Jeanine Wright, and Mark Stignani, who is Partner & Chair of Analytics Practice at Barnes & Thornburg LLP. https://www.linkedin.com/in/jeaninepercivalwright https://www.linkedin.com/in/markstignani Inception Point AI But before the interview I have news for you: The Unified Patent Court (UPC) ruled on Feb 19, 2026, that specialized insurance can cover security for legal costs. This is vital for firms, as it eases litigation financing and lowers financial hurdles for patent lawsuits by removing the need for high liquid assets to enforce rights at the UPC. On Feb 12, 2026, the WIPO Coordination Committee nominated Daren Tang for a second six-year term as Director General. Tang continues modernizing the global IP system, focusing on SMEs, women, and digital transformation. His confirmation in April is considered certain. An AAFA study from Feb 4 reveals 41% of tested fakes (clothing/shoes) failed safety standards. Many contained toxic chemicals like phthalates, BPA, or lead. The study highlights that counterfeiters increasingly use Meta platforms to sell unsafe imitations directly to consumers. China’s CNIPA 2026 report announced a crackdown on bad-faith patent and trademark filings. Beyond better examination quality, the agency will sanction shady IP firms and stop strategies violating “good faith” to make China’s IP system more ethical and innovation-friendly. Now, let’s hear the interview with Jeanine Wright and Mark Stignani! How AI Is Rewiring Media & Entertainment: Key Takeaways from Ken Suzan’s Conversation with Jeanine Wright and Mark Stignani In this IP Fridays interview, Ken Suzan speaks with two repeat guests who look at the same phenomenon from two angles: Jeanine Wright, Co-Founder & CEO of Inception Point AI, as a builder of AI-native entertainment, and Mark Stignani, Partner and Chair of the Analytics Practice at Barnes & Thornburg LLP, as a lawyer advising clients who are trying to use AI without stepping into a legal (or ethical) crater. What emerges is a clear picture: generative AI is not just “another tool.” It is rapidly becoming the default infrastructure for creative work—while the rules around ownership, consent, and accountability lag behind. 1) What “AI-generated personalities” really are (and why that matters) Jeanine’s company is not primarily “cloning” real people. Instead, Inception Point AI creates original, fictional personalities—characters with backstories, ambitions, and evolving arcs—then deploys them into the world as podcast hosts and content creators (and eventually actors and musicians). Her key point: the creative work still starts with humans. Writers and creators define the concept, tone, audience, and story engine. What AI changes is speed, cost, and iteration—and therefore what is economically feasible to produce. 2) The “generative content pipeline” isn’t a magic button A recurring misconception Ken raises is the idea that someone “pushes a button” and content pops out. Jeanine explains that real production looks more like a hybrid studio: A creative team defines character, voice, format, and storyline. A technical team builds what she calls an “AI orchestration layer” that combines multiple models and tools. The “stack” differs by format: the workflow for a long-form audio drama is different from a short-form beauty clip. This matters because it reframes AI content not as a single output, but as a pipeline decision: which tools, which data sources, which QA, and which governance steps are used—and where human review happens. 3) The biggest legal questions: origin, liability, ownership, and contracts Mark doesn’t name a single “top issue.” He describes a cluster of problems that repeatedly show up in client conversations: Training data and “origin story” Clients keep asking: Can I legally use AI output if the tool was trained on copyrighted works? Even if the output looks new, the unease is about whether the tool’s capabilities are built on unlicensed inputs. Liability for unintended harm Mark flags risk from AI content that inadvertently infringes, defames, or carries bias. The legal exposure may not match the creator’s intent. Ownership and protectability He points to a big gap: many jurisdictions are still reluctant to grant classic IP rights (copyright or patent-style protection) to purely AI-generated material. That creates uncertainty around whether businesses can truly “own” what they produce. Old contracts weren’t written for AI A final, practical point: many agreements—talent contracts, author clauses, data licenses—predate generative AI and simply don’t address it. That leads to disputes about scope, permissions, and—crucially—indemnities. 4) Are we at a tipping point? The “gold rush” vs. “next creative era” views Jeanine frames AI as “the world’s most powerful creative tool”—comparable to previous step-changes like animation, special effects, and CGI. For her, the strategic implication is simple: creators who learn to use AI well will expand what they can build and test, faster than ever. Mark’s metaphor is more cautionary: he calls the moment a “gold rush” where technology is sprinting ahead of law. Courts are getting flooded with foundational disputes, while legislation is fragmented—he notes that states may move faster than federal frameworks, and that labor agreements (e.g., union protections) will be a key pressure point. 5) Democratization: more creators, more niche content, more experimentation One of the most concrete themes is access. Jeanine argues AI will: Lower production barriers for independent filmmakers and storytellers. Reduce the need for “hit-making only” economics that dominate Hollywood. Make micro-audience content commercially viable. Her example is intentionally niche: highly localized, specialized content (like a “pollen report” for many markets) that would never have made financial sense before can now exist—and thrive—because the production cost drops and personalization scales. 6) Likeness, consent, and “digital performers”: what happens when AI resembles a real actor? Ken pushes into a sensitive area: what if someone generates a performance that closely resembles a living actor without consent? Mark outlines the current (imperfect) toolbox—because, as he emphasizes, most laws weren’t built for this scenario. He points to practical claims that may come into play in the U.S., such as rights of publicity and false endorsement-type theories, and notes that whether something is parody or “too close” can become a major fault line. Jeanine explains her company’s operational approach: They focus on original personalities, designed “from scratch.” They build internal checks to avoid misappropriating known names, likenesses, or recognizable identities. If they ever work with real people, the model would be licensing their likeness/voice. A subtle but important business point also appears here: Jeanine expects AI-native characters themselves to become licensable assets—meaning the entertainment economy may expand to include “celebrity rights” for fully synthetic personalities. 7) Ethics: the real line is “deception,” not “AI vs. human” The ethical core of the conversation is not “AI is bad” or “AI is good.” It’s how AI is used—especially whether audiences are misled. Mark highlights several ethical risks: Misuse of tools to manipulate faces and content (“AI slop” and political misuse). Displacement of creative workers without adequate transition support. A concern that AI often optimizes toward “statistical averages,” potentially flattening originality. Jeanine agrees ethics must be designed into the system. She describes regular discussions with an ethicist and emphasizes a principle: transparency. Her company discloses when content or personalities are AI-generated. She argues that if people understand what they’re engaging with and choose it knowingly, the ethical problem shifts from “AI exists” to “Are we tricking people?” Mark adds a real-world warning: deepfakes are now credible enough to enable serious fraud—he references a case-like scenario where a synthetic video meeting deceived an employee into authorizing a payment. The point is clear: authenticity and verification are no longer optional. 8) The “dead actor” hypothetical: legal permission vs. moral intent Ken raises a provocative scenario: an actor’s estate authorizes an AI-generated new performance, but the actor opposed such technology while alive. Neither guest offers a simplistic answer. Jeanine suggests that even if the estate holds legal rights, a company might choose to avoid such content out of respect and because the ethical “overhang” could damage the storytelling outcome. She also notes the harder question: people who died before today’s capabilities may never have been able to meaningfully consent to what AI can now do—raising questions about how we interpret legacy intent. Mark underscores the practical contract problem: many rights are drafted “in perpetuity,” but that doesn’t automatically settle the ethical question. 9) Five-year forecast: “AI everywhere,” but audiences may stratify Ken closes with a prediction question: in five years, how much entertainment content will significantly involve AI—and will audiences care? Jeanine predicts AI becomes the default creative layer for most content crea

  8. Jan 30

    Interview with Eva Schewior, President of the German Patent and Trademark Office – Rising Filing Numbers and How to Deal With Them – AI For Patent Examiners – Bad Faith Trademark Applications – Career at the DPMA – Episode 171 – IP Fridays

    My co-host Ken Suzan and I are welcoming you to episode 171 of our podcast IP Fridays! Today’s interview guest is the president of the German Patent and Trademark Office Eva Schewior! But before we jump into this very interesting interview, I have news for you: The US Supreme Court has taken up an important patent law case concerning so-called “skinny labels” for generic drugs. Specifically, the highest US court is reviewing a case in which Amarin accuses generic drug manufacturer Hikma of inciting doctors to use the cholesterol drug Vascepa in violation of patents by providing a limited package insert. In two landmark decisions, the UPC Court of Appeal clarified the criteria for inventive step and essentially confirmed the EPO’s typical “problem-solution” approach (Amgen v Sanofi and Meril v Edwards). However, experts are not entirely sure whether the Court of Appeal’s decisions, particularly those relating to the determination of the closest prior art, deviate from EPO practice. As a result of Brexit, mutual recognition of trademark use between the EU and the UK will cease to apply from January 1, 2026. Use of a trademark only in the UK will then no longer count as use of an EU trademark for the purpose of maintaining rights – and conversely, EU use will no longer count for British trademarks. Bayer is attacking several mRNA vaccine manufacturers in the US (Pfizer, BioNTech, Moderna, and J&J separately). The core allegation: patent infringements relating to old (Monsanto) patents on mRNA stabilization; Bayer is seeking damages, not sales bans. DISCO Pharmaceuticals from Cologne signs an exclusive license agreement with Amgen (potentially up to USD 618 million plus royalties) for novel cancer therapies targeting surface structures. Relevant from an IP perspective: license scope, milestones, data/know-how allocation. And now let’s jump into the interview with Eva Schewior! The German IP System in Transition: Key Insights from DPMA President Eva Schewior In an in-depth conversation on the IP Fridays podcast, Eva Schewior, President of the German Patent and Trademark Office (DPMA), outlined how Germany’s IP system is responding to rising demand, technological change, and a fundamentally altered European patent landscape. The interview offers valuable insights for innovators, companies, and IP professionals navigating patent, trademark, and design protection in Europe. Sustained Demand and Procedural Efficiency Despite the introduction of the Unitary Patent system, national German IP rights continue to see strong and growing demand. According to Schewior, application numbers at the DPMA have been increasing for years, which she views as a strong vote of confidence in the quality and reliability of German IP rights. At the same time, this success creates pressure on examination capacity. The average duration of patent proceedings at the DPMA is currently around three years and two months from filing to grant, provided applicants request examination early and avoid extensions. Internationally, this timeframe remains competitive. Nevertheless, shortening procedures remains a strategic priority. Search requests alone have risen by almost 50% over the past decade, yet the DPMA still delivers search reports on time in around 90% of cases. To better reflect applicant needs, the DPMA distinguishes between two main user groups: applicants seeking a rapid grant, often as a basis for international filings, and applicants primarily interested in a fast, high-quality initial assessment through search or first examination. Future procedural adjustments are being considered to better serve both groups. The Role of Artificial Intelligence Artificial intelligence already plays a practical role at the DPMA, particularly in patent search, classification, and the translation of Asian patent literature. Schewior emphasized that the office is closely monitoring rapid developments in AI to assess where these tools can further improve efficiency. However, she made clear that AI will remain a supporting technology. In public administration, and especially in IP examination, final decisions must always be taken and reviewed by humans. AI is seen as a way to relieve examiners of routine tasks so they can focus on substantive examination and quality. Maintaining and Monitoring Examination Quality Quality assurance is a central pillar of the DPMA’s work. Schewior reported consistently positive feedback from users, but stressed that maintaining quality is a continuous task. The office applies systematic double checks for grants and refusals and uses internal quality management tools to randomly review searches and first office actions during ongoing proceedings. External feedback is equally important. The DPMA’s User Advisory Board, which includes patent attorneys, startups, and patent information centers, plays a key role in identifying issues and suggesting improvements. Several of its recommendations have already been implemented. Trademark Filings and Bad-Faith Applications The trademark side of the DPMA has experienced particularly strong growth. In 2025, the office received around 95,000 trademark applications, an increase of approximately 18% compared to the previous year. Much of this growth came from abroad, especially from China. While new trademark types such as sound marks, multimedia marks, and holograms have so far seen only moderate uptake, word marks and figurative marks remain dominant. A growing challenge, however, is the rise in bad-faith trademark filings. The DPMA has responded by intensively training examiners to identify and handle such cases. Procedural reforms following EU trademark law modernization have also shifted competencies. Applicants can now choose whether to bring revocation and invalidity actions before the courts or directly before the DPMA. While courts may act faster, proceedings before the DPMA involve significantly lower financial risk, as each party generally bears its own costs. Accelerated Examination as a Practical Tool Despite rising filing numbers, the DPMA aims to avoid significant delays in trademark proceedings. Organizational restructuring within the trademark department is intended to balance workloads across teams. Schewior highlighted the option of accelerated trademark examination, available for a relatively modest additional fee. In practice, this can lead to registration within a matter of weeks, without affecting priority, since the filing date remains decisive. New Protection for Geographical Indications A major recent development is the extension of EU-wide protection for geographical indications to craft and industrial products. Since late 2025, the DPMA acts as the national authority for German applications in this area. The first application has already been filed, notably for a traditional German product. Under the new system, applications undergo a national examination phase at the DPMA before being forwarded to the EUIPO for final decision. Products eligible for protection must originate from a specific region and derive their quality or reputation from that origin, with at least one production step taking place there. The EU estimates that around 40 German products may qualify. Outreach, SMEs, and Education Schewior underlined the DPMA’s statutory duty to inform the public about IP rights, with a particular focus on small and medium-sized enterprises. The office has significantly expanded its presence on platforms such as LinkedIn and YouTube, offering accessible and practical IP content. Studies show that fewer than 10% of European SMEs use IP rights, despite evidence that IP-owning companies generate higher revenues. To address this gap, the DPMA is expanding outreach formats, strengthening cooperation with educational institutions, and publishing new empirical studies, including a forthcoming analysis of patenting behavior among innovative German startups conducted with WIPO. Strategic Challenges Ahead Looking forward, Schewior identified several key challenges: insufficient awareness of IP protection among SMEs and startups, a tendency in some sectors to rely solely on trade secrets, and the growing problem of product and trademark piracy linked to organized crime. From an institutional perspective, the DPMA must remain attractive and competitive in a European system offering multiple routes to protection. This requires legally robust decisions, efficient procedures, qualified staff, and continuous investment in IT and training. Careers at the DPMA Finally, Schewior highlighted recruitment as a strategic priority. The DPMA recently hired around 50 new patent examiners and continues to seek experts in fields such as electrical engineering, e-mobility, IT, and aerospace, as well as IT specialists, lawyers, and staff in many other functions. She emphasized the DPMA’s role as Europe’s largest national patent office and a globally significant, stable, and family-friendly employer at the forefront of technological development. German and European Patents as Complementary Options In her closing remarks, Schewior addressed the post-UPC patent landscape. Rather than competing, German and European patent systems complement each other. For many SMEs, a German patent alone may be sufficient, particularly where Germany is the core market. At the same time, the possibility of holding both a European patent and a national German patent offers strategic resilience, as national protection can survive even if a European patent is revoked. Her key message was clear: the range of options has never been broader, but making informed strategic choices is more important than ever. If you would like, I can also adapt this article for a specialist legal audience, condense it for a magazine forma

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