PATENT AND TRADEMARK DISPUTES

CD: To what extent are you seeing an increase in patent and trademark disputes in today’s technologically-driven world? What are the most common sources of conflict?

Homrig: Particularly in the technology space, norms about patent enforcement have evolved significantly, leading more companies to find creative ways to monetise their portfolios. With patent enforcement no longer a signal that a company is struggling in the market, highly successful companies today are more likely to spin off portfolios into separate licensing and enforcement entities, to sell patents outright, or even to assert their portfolios in their own names against growing competitors. This has led to an increase in the number of high-quality portfolios at stake in litigation. We have also seen an increase in the intersection between the technology and biotechnology sectors, with more biotechnology innovation driven by artificial intelligence (AI) and other technologies, and an increasing number of patents directed to that intersection. As with any emerging technology, this spawns disputes.

Davidson: There has been an unprecedented increase in the need for interoperability and communication. This is not restricted to communication between people via their smart phones, but also between devices, such as autonomous vehicles, smart home devices and robots in a smart factory, which all need to talk with other components in order to perform their tasks. This means an ever increasing need to develop more technical standards to enable communication. This has led to increasing disputes relating to standard essential patents and their licensing negotiations. At the same time, we continue to see many unsettled issues for brand owners in the metaverse. Enforcement of trademark rights in the virtual world remains challenging, including on issues such as whether the mark is used in the course of trade, whether the trademark protection extends to virtual items and in which jurisdiction an infringement case should be heard.

Apr-Jun 2024 issue

Davis Polk

Latham & Watkins

Norton Rose Fulbright

Squire Patton Boggs