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  Interview with Peter Berg – Chief IP Counsel at Infineon Technologies and VPP President – Building Litigation Ready Patents – Politics, Acquisitions, NPEs and Post Quantum Cryptography – Why He Wants Germany’s Inventor Law Gone – IP Fridays Podcast – Episode 179 25.09.2026 52นาที

  My co-host Ken Suzan and I are welcoming you to episode 179 of our podcast IP Fridays! Today’s Interview guest is Peter Berg. If you don’t know Peter, he is the Chief IP Counsel at Infineon Technologies and is also serving as the VPP president. We talk about the industry association of in-house practitioners VPP, politics, patent strategy at Infineon, litigation ready patents, NPEs, acquisitions, the German emloyees invention act and many more things. So stay with us for this very interesting interview. Before we jump into this interview, I have news for you! The USPTO has issued its first AI-related disciplinary action, published on August 27, 2026 in In re Brian E. Mitchell (Proceeding No. D2026-16) before the Office of Enrollment and Discipline. The underlying settlement was signed by the attorney on July 20, 2026 and by the OED Director on July 21, 2026, with final approval given on July 27, 2026 by Tricia Choe on behalf of USPTO Director John A. Squires. The action resulted in a public reprimand against California patent attorney Brian E. Mitchell after a generative AI tool produced a claim comparison chart containing fabricated citations to the patent’s internal file history. The case underscores that AI-generated hallucinations must be verified by a human before filing. InterDigital has escalated its patent dispute with Disney across three fronts within a month. On August 25, 2026, InterDigital filed two new actions at the Unified Patent Court: a preliminary injunction request at the Mannheim Local Division (UPC_CFI_3044/2026) and a main infringement action at the Düsseldorf Local Division (UPC_CFI_3043/2026), covering Germany, France and the Netherlands. Both target Disney+ Premium’s switch to the VP9 video codec, which InterDigital says still infringes patent EP 2 465 265, a patent the Mannheim division had already found valid and infringed in an earlier ruling that also branded Disney an unwilling licensee; the Düsseldorf action adds a second patent, EP 2 605 473, covering the Up Next continue-watching feature. On September 2, 2026, the Düsseldorf Local Division granted InterDigital an injunction against Disney covering Germany and the Netherlands over a separate patent protecting seamless playback continuation when switching between devices, upholding the patent’s validity in the same ruling. It was InterDigital’s third UPC injunction against Disney. Then, on September 15, 2026, InterDigital filed a damages claim for EUR 101.7 million against Disney at the Munich Regional Court I (case no. 7 O 8870/26), based on a November 2025 finding that Disney+ infringes InterDigital’s HDR video patent EP 2 132 923; the claim also covers viewers in 19 European countries served through a Frankfurt-based server location. For companies relying on codec or connectivity technology, the dispute is a reminder that switching to a different standard does not automatically avoid infringement if the asserted patent is drafted broadly enough. The EPO’s Enlarged Board of Appeal ruled on September 3, 2026 in G 1/25 that a patent description only needs to be amended to match amended claims if a discrepancy between the two causes a requirement of the EPC, such as clarity, novelty or inventive step, not to be met. The EPO’s Board of Appeal 3.3.08 fully revoked Moderna’s key mRNA patent EP 3 590 949 following a two-day hearing that concluded in mid-September 2026, on the grounds that the claimed subject matter extended beyond the original application. The revocation removes the basis for Moderna’s earlier wins against BioNTech and Pfizer in Düsseldorf and London. On September 15, 2026, US sportswear maker New Balance filed a trademark suit against Decathlon’s US units, Decathlon America LLC and Decathlon USA LLC, in the US District Court for the District of Massachusetts (case no. 1:26-cv-14235). New Balance argues that the K logo on its Kiprun running shoe line, when mirrored, reads unmistakably as an N and imitates the N mark it has used for roughly 50 years, claiming post-sale confusion. On September 8, 2026, the Court of Justice of the EU ruled in Case C-298/23, Inter IKEA Systems v Vrijheidsfonds, on a referral from the Brussels Enterprise Court, that the owner of a well-known trademark can prohibit its use by a political party unless the party sets out the specific reasons why its freedom of expression outweighs the trademark owner’s interests. The case arose from the Vlaams Belang party’s 2022 campaign promoting a migration plan styled as IKEA assembly instructions. And now for the interview with Peter Berg! In this episode of IP Fridays I talk with Peter Berg. He is Chief IP Counsel at Infineon Technologies and President of VPP, the German association for in house IP professionals, since May 2025. Berg is an electrical engineer by training and leads a team at Infineon that manages a portfolio of more than 12,000 patent families, while the company simultaneously enforces its rights offensively in Germany, the US and China. That combination of hands on portfolio work and association leadership makes him one of the rare guests who can speak to both the operational detail of one of Europe’s largest patent portfolios and the political side of Germany’s IP landscape. The guest: Peter Berg and the VPP Peter Berg is an electrical engineer who became Chief IP Counsel at Infineon Technologies and, since May 2025, President of the VPP, the association representing in house patent professionals in Germany. His team manages a portfolio of more than 12,000 patent families while running an offensive enforcement program across Germany, the US and China. That mix of operational and political experience is exactly why I wanted him on the podcast. Germany’s national IP strategy: more than a promise on paper I asked Berg what has become of the national IP strategy promised in Germany’s coalition agreement, and what happens if it does not materialize during this legislative term. His answer was clear. The question is no longer whether the strategy will arrive, only how comprehensive it turns out to be. If it falls short of what industry needs, the profession will simply push for adjustments afterward. Berg names three levels that need attention. First, society as a whole, from kindergarten to retirement, needs to understand that intellectual property underpins our prosperity rather than being a line item in the accounts. Second, academia and professional education. Third, startups and the broader Mittelstand, where well funded structures are still missing. The German Patent and Trademark Office has an educational mandate but far too small a budget for it, and the regional patent information centers are underfunded as well. Berg makes a point that is easy to miss from outside Germany: the patent office reports to the Ministry of Justice rather than to an innovation focused ministry, even though its real purpose is to strengthen the economy. That three ministries, research, economy and justice, are now working on the strategy together strikes him as genuine progress. Litigation ready patents: how Infineon manages 12,000 patent families Infineon has roughly tripled its turnover since 2017 while keeping portfolio size largely stable. The answer, Berg says, is quality over quantity. Inventors pitch their ideas to a panel of senior technical experts and patent attorneys, and the process does not stop there. The draft itself is reviewed by multiple stakeholders, and once the notice of allowance arrives and the patent is granted, it goes through another review. The criteria stay consistent throughout: technology assessment, market size, detectability, circumventability and fit with Infineon’s own roadmap. Internal discipline alone does not make a patent litigation ready, though. That requires real experience with conflict, and most of that experience comes from the defensive side, where Infineon has plenty of practice finding weaknesses in patents asserted against it. Being on the offensive, Berg says, is a different level of learning entirely, whether in court or in licensing negotiations where the other side is not sure it would get a fair outcome if the case went to trial. In practice this also means systematic pruning. Internally Infineon calls the relevant phases US8 and US12, the years when annuity costs peak in the US portfolio, by far the most expensive part of the estate. Berg says his team knows every one of the more than 12,000 patent families in detail, and offensive enforcement is focused on the markets that matter most for electronic products: Germany, the US and China. An injunction at a trade show: national courts versus the UPC One concrete trigger for this conversation was an ex parte preliminary injunction Infineon obtained at a German trade show, without the defendant having filed a protective letter in advance. For Berg, enforcement at trade fairs is nothing new, it has been part of the playbook for years, now extended to venues outside Europe that Western companies have used less often in the past. His view on the UPC is nuanced. He credits the court with a strong start, good management and judges selected for quality rather than politics, and praises the body of case law it has built in a little over three years. On the other hand, some member states are still missing, a comprehensive body of case law takes time to develop, and costs do not fit every business case, especially where achievable damages barely justify the expense. Infineon in any case validates most European patents in only a handful of countries rather than dozens, so the practical difference between national and UPC enforcement is smaller than it might seem. For smaller cases the option to opt out and litigate nationally alongside UPC rights remains important, even though systematically double patenting is not something Infineon pursues for cost reasons. Four systems at once: coordinating cross border enforcement Infineon’s legal and patent departments have grown together over 25 years into a fully integrated international organization, with teams in Europe, North America and several Asian countries that, by Berg’s account, communicate on close to a weekly basis. Add to that a strong network of outside counsel. The commitment to management is not to shy away from any jurisdiction where the need arises. Berg is careful that patent attorneys do not spend their entire careers doing only litigation or only prosecution. Attorneys who rotate into a litigation team bring that experience back into their regular business support afterward, and that cycle in turn improves the quality of new filings. Litigation has become part of daily business, but never something a team slides into unprepared. Going on the offensive against a competitor requires planning several steps ahead. IP due diligence in practice: the Marvell Brightlane deal I found Berg’s answer on the Marvell Brightlane acquisition, Infineon’s 2.5 billion dollar deal for Marvell’s automotive Ethernet business that closed in August 2025, particularly revealing. In the semiconductor industry, he explains, IP is rarely primarily the patent portfolio. What matters more are frozen technologies and so called IP blocks, reusable design blocks that enable fast product development. Infineon almost never acquires a company because of its patents. Being a large, established player, its own portfolio is usually broad enough to secure a new technical area against incumbent competitors. The real work starts after signing. It means listening without being pushy, understanding the new colleagues’ processes and tools before deciding how to integrate the portfolio. Since none of Marvell’s IP staff joined Infineon in this deal, the team had to build up portfolio expertise using the acquired engineers and set up an operational patent committee, then plan which areas of the portfolio were already strong and where investment was still needed. The faster that integration decision gets made, Berg says, the better, because product development can never be allowed to stall because of an acquisition. The Cypress lesson: NPE exposure from legacy portfolios One risk many companies underestimate in acquisitions is patents an acquired business sold to a non practicing entity, or NPE, before the deal closed. That happened with Cypress Semiconductor in 2016, after its merger with Spansion left it with an oversized portfolio it did not need. Cypress sold around 2,000 patents to the NPE organization IP Value, and only a few years later Infineon acquired Cypress. Because the sale included a retained license for Cypress’s own business, Berg sees no exposure for Infineon from those specific patents today. The broader issue of NPE enforcement, though, remains real. Realistically there are many dozens of new cases a month, often directed at customers or the wider ecosystem rather than at chipmakers directly. Even when Infineon is not the target, it has to support its customers whenever its own technology is implicated. For the industry as a whole this consumes a great deal of resources without moving innovation forward, a point that comes up especially often at this time of year in Munich, when IP practitioners from around the world gather for meetings. Post quantum cryptography: patent density ahead of standardization In December 2024 Infineon became the first company to achieve a CC EAL6 certification in post quantum cryptography, one of the highest security certifications available. Berg describes two angles to the work. On one side, Infineon develops its own chipsets to enable quantum computing itself, already a real business rather than pure research. On the other side, customers across Infineon’s application fields need to be prepared for what he calls quantum day, the point at which powerful quantum computers become available, including to bad actors. Because that day may only be three to five years away, infrastructure needs to be built now so it can handle new cryptographic approaches. On standard essentiality he is measured rather than evasive. There are certainly patents in this field from Infineon and others, but security standards have historically leaned toward royalty free licensing rather than the large patent clusters seen in cellular communication from 2G through 5G. Whether that pattern repeats for post quantum cryptography, he cannot say, but Infineon is preparing for either outcome. Germany’s Employee Invention Act: opportunity or burden Asked whether Germany’s Employee Invention Act is an opportunity or a burden for the country’s innovation ecosystem, Berg does not hold back. With more than 30 years of experience, he estimates that 99 percent of all inventions are simply the regular work product of engineers in R&D, requiring no extra incentive at all. In countries without an equivalent law, employees are demonstrably just as innovative and just as willing to share their inventions with the company. His core objection is that invention does not equal innovation. Procurement, production, quality management and many other functions all contribute to a product’s success, not just the named inventors. That the inventor alone receives extra compensation while everyone else does not strikes Berg as unfair, especially since Infineon already rewards its top engineers appropriately regardless of statutory requirements. He calls the law a bureaucratic nightmare that should be abolished or at least radically simplified. Smaller organizations, he notes, often just ignore it or implement it badly, and every company Infineon has acquired with German operations has come with its own legacy mess to clean up. Artificial intelligence in day to day patent work at Infineon On AI, Berg describes three layers. The first is established tools: patent search, translation between the team’s main working languages, and, for about two years now, drafting replies to office actions. As with any tool, the benefit only shows up with repeated use at real volume, which is why Infineon works deliberately with outside counsel to broaden adoption across the team. The second layer is ongoing testing of new tools, limited mainly by the time available to evaluate them. The third is everyday office use. Since spring 2025, everyone from paralegals to attorneys has been able to use AI tools broadly within a secure environment. The bar stays the same throughout: if AI output is not at least as good as an attorney’s prior work, it is not worth using, or the cleanup afterward eats up any time saved. Where it does work, responses to standardization proposals, for instance, can be produced far faster. One question Berg expects to face next year, without yet having an answer: how should efficiency gains be split between the company and outside counsel once both sides benefit from AI? Three messages for the IP community I closed by asking Berg for the most important messages he would want to give our listeners, mostly IP professionals in companies and law firms. His first message: think about IP strategy from the end, starting with what needs to be asserted against whom and for what purpose in ten or twenty years, rather than letting today’s deadlines dictate everything. Only that kind of multi year plan, combined with a sound cost benefit ratio, produces genuinely litigation ready patents. His second message is again about artificial intelligence: anyone who has not started training with it yet risks missing the wave, and this is not a skill built overnight. His third message is aimed at anyone not yet connected to peers in the profession: use the associations and networks that already exist to build that exchange, a thought that ties neatly back to the VPP, where our conversation began. And here is the full transcript: Peter Berg: Hi, I’m Peter Berg, Chief IP Counsel at Infineon Technologies and President of VPP, the Association of In-house Patent Practitioners in Germany. And you are listening to IP Fridays. Rolf Claessen: Today’s interview guest is Peter Berg. If you don’t know Peter, he is an electrical engineer by training and is the Chief IP Counsel at Infineon Technologies and also serving as the VPP president. Thank you very much for being on IP Fridays. Peter Berg: My pleasure. Rolf Claessen: So first I want to talk about VPP. You succeeded Beat Weibel from Siemens as VPP president in May 2024 and have publicly called for Germany to finally deliver on the coalition agreement promise of the national IP strategy. So politics, what are the two or three most concrete things that strategy must contain? What happens if it doesn’t get done in this legislative period? Peter Berg: First of all, I think I need to correct you. It was May 2025, so not that long as a standing president. But if you mention national IP strategy, national means here for Germany. I think the question isn’t anymore whether or what happens if we don’t get that strategy. I think that is now on its way. The question is rather how good and comprehensive the national IP strategy will be, and if it’s just not enough from an industry perspective, I would say then we adjust afterwards. Of course, there is a big paper out from the BDI, the German Industry Association, published in 2024, and I need to focus on something which is really close to my heart. If you ask me the main content it should have, it is first of all better IP education, and I see there are kind of three levels. One is really society as such, so each and everybody from kindergarten to retirees, we need to acknowledge in the knowledge society that IP is central for our well-being. We have to respect the IP of others. We have to be proud to create IP, not just treat it as an entry in the accounts. Yeah, society at large. The second level is really academia and education in our professional environment. And finally, life is difficult for startups, people who want to create a new company, and small and medium-sized enterprises. There is good stuff out there. The German Patent and Trademark Office has a mandate to educate, but a very small budget to do so. In a federal country like Germany, there are local support systems, be it the chambers of commerce or the patent information centers. The structure is there, but it’s underfinanced, and Germany has to gear up on that one. So besides IP education, I believe solid national IP institutions are key. This is also a funding issue, be it headcount or technology. Think of the German Patent and Trademark Office, think of the courts, be it on the infringement side or the nullity side, so the Federal Patent Court. We need to back up nationally the European institutions, since we believe not every case is worth taking to the UPC, so for smaller cases we need a good national system as a backup. And government needs to have that in mind and not rely too much on European institutions alone. Finally, facilitate the IP transfer from universities and research institutions into industry. Right now it’s all about startups, et cetera, but that kind of IP transfer starts first of all with people leaving university, leaving those research institutions and joining industry, be it as staff or through research contracts. And finally, of course, startups are the area where Germany needs to catch up in particular. Perhaps I need to add for non-German listeners, there is a particularity in Germany in that the IP institutions, like the Patent and Trademark Office, report into the Ministry of Justice, although it’s an instrument for thriving innovation and building a solid economy. So it’s right now a totally new thing for this country that three ministries, research, economy and justice, are working together on this national IP strategy, with only recently some good progress. Rolf Claessen: You’ve said publicly that Infineon’s primary focus is patents that provide clear competitive advantages, and that for you it’s about litigation-ready patents. That’s a very specific phrase. How do you define it operationally, and how has the pruning of your more than 12,000-family portfolio changed in the last two years? Peter Berg: Yeah, I think that’s a process which lasted much more than two years, and it’s never over. This is work in progress. Thinking back to 2017, I joined Infineon, and the company has developed very nicely since. I think we roughly tripled turnover but kept the portfolio size roughly stable, despite acquisitions, despite that growth, also in R&D, et cetera. We’ve even been able to shrink costs since then, and I believe we’ve achieved our strategic goals, now with a good, or let’s say not yet good enough, cost-benefit ratio. And the answer to that equation is quality. Now, we as patent practitioners might call it differently, but at the end it comes down to the fact that, most likely for all companies and for practitioners who support companies in private practice, you need a collaboration platform. That means for Infineon, the inventors are key. They are involved in decision-making, so they pitch their invention to senior technical experts, my team members, and patent attorneys, and the quality of that expert panel makes a big difference. Then come repetitive reviews, not just once the decision to file is taken, but the draft itself is also reviewed by multiple stakeholders. Then we get the notice of allowance, the patent is granted, another review, and later on we try to apply consistent criteria: what’s the technology assessment, what’s the market size, is it detectable, is it easy to circumvent, et cetera, and does it fit with our own roadmap. And of course it would be nice if you could easily compare it with a competitor’s roadmap, or take the time to speculate on certain market changes which might be disruptive. And I believe if you apply that consistently over a sufficiently long period, you get patents you could call litigation-grade or litigation-ready. What is then missing, though, is real experience with conflicts against competitors and how the courts look at that. So the truth comes out once you go to court. On the defensive side, of course, we have tons of experience trying to find weaknesses in patents being asserted against Infineon, et cetera. But I think it’s another level of learning to be on the offensive, and that might play out in court, but it might also play out in licensing negotiations, where the other side is sufficiently unsure whether they would get an outcome they believe would be fair if they went to court with those patents. You asked me about the pruning of all this. So what is our approach there? There is a kind of forced pruning rate which we believe is necessary, to make it mandatory for everybody to identify the weakest patents in the respective portfolios. We focus on the years where costs are highest, what we internally call US8 and US12, since a big chunk of money needs to be spent on annuity payments for the US portfolio, which is the dominant one, and for the rest of the world it’s rather towards the end of the patents’ lifecycle. Now, having a good team, people who really like the technology and stay in charge for a long time, I could proudly say that my team knows every one of those 12,000 patent families well, and not just on the German or the US side, but really focuses on the jurisdictions with the biggest markets for electronic products. And there we see offensive litigation as a good choice, and that is Germany, the US and China. Rolf Claessen: Yes, talking about patent quality is really a hot topic right now, especially in industry and at the EPO, I guess, but that’s a topic for a different hour, probably. But talking about litigation-ready patents, you recently obtained possibly the first ex parte preliminary injunction at a German trade show in recent history, without a protective writ having been filed by the defendant. What does that show about your view on German national courts versus the UPC for this kind of enforcement? Peter Berg: I mean, first of all, litigation is not an end in itself, and in the markets a semiconductor company like Infineon operates in, a product might implement potentially hundreds or thousands of patents. So litigation itself doesn’t resolve all of that, but it has its place in our strategy execution. You’ll understand that I can’t get into specifics of any of the litigations you hinted at. But enforcement of trademarks, and I think you mentioned a patent case, trademarks and patents at trade fairs has been part of our activities for years, and sometimes you can catch somebody by surprise. It’s all about good preparation. But what I believe is more important is that we also prepare for venues so far less used by Western companies, be it China, et cetera. So being litigation-ready means looking into different venues. The UPC is certainly one of them, but there’s more beyond that. Enforcement for us is not only a German or European measure. I personally believe national courts and the UPC will both have a role to play in the future. There are pros and cons to each, which need to be evaluated case by case. I need to congratulate the UPC, which had a great start, good management, good communication about what they do, and a selection of judges based on quality, not politics. In a little more than three years, they’ve built up a pretty good body of case law. On the downside, some countries are still missing, building a really comprehensive body of case law will take time, and the cost side is still a concern, meaning that not every kind of business case reaches damages high enough to justify it, and there’s a certain risk that the case won’t be decided quickly by the court. In such situations, it might not make sense to go to the UPC. We have, I guess, quite a few companies in the electronics or mechanical engineering field where we don’t validate European patents in dozens of countries, maybe two, three, four, and over time it might be even fewer. So geographically, the difference between US, UPC and national enforcement isn’t that big. That’s why the alternative, and I mentioned this a bit at the beginning regarding the national IP strategy, needs to stay a good alternative. So the possibility to opt out and litigate nationally in lesser business cases remains, from my perspective, important, and we continue to use that as well. Rolf Claessen: Yes, and also the hurdle for double patenting has been lowered a little, so you can still have national patent rights in parallel with UPC patent rights. That’s also an advantage, probably. Peter Berg: Yeah, I think that was almost an invitation to say, you know, if you’re not sure whether the unitary patent is your choice, you can do both in parallel. True. But again, all we need to do is achieve our goals with a good cost-benefit ratio, so systematically double patenting is not really the way forward for us. Rolf Claessen: Right. Yeah, that was a very interesting insight about German national courts versus the UPC. But in fact you’re also litigating across borders, in many different countries, for example the US, Europe, Germany, and other countries, in China maybe. So what does coordinating enforcement across all these different systems simultaneously actually look like from the inside, and was it always the plan to have such complex litigation and enforcement systems, or did it evolve? What’s your take on this? Peter Berg: Yeah, at Infineon, our legal and patent departments, as we call them, have grown together over the last 25 years, roughly the age of our company, into an organization that doesn’t just have broad general legal or semiconductor application market expertise, for us that’s automotive, consumer goods, industrial and IoT, but is an organization that’s been tested by hundreds of assertions against us and our customers, and by negotiations with operating companies and NPEs. So that comes with experience. If I look now at our organization, not just my own team but legal in general, we have patent and legal teams in all the hotspots, and that’s grown in the last couple of years too. It’s Europe, of course North America, and various countries in Asia, and it’s a fully integrated international organization. We know each other and communicate, it feels like, on at least a weekly basis. Not to forget a good network of outside counsel to execute enforcement wherever strategic needs require it. That’s kind of our promise to management: we don’t shy away from any jurisdiction, if the need is there we can act and set up a team. Perhaps we’ve learned more on the defensive side, which we can now translate into offensive action. And I guess you’re somehow relating your question to a specific litigation against a Chinese competitor, and that’s not a litigation you kind of slide into. You need to plan a few steps ahead. Litigation has become part of our daily life, and the key moment is always, once it’s decided that this is going to happen, to set up a team for the new litigation. It starts to feel like a routine operation. The staffing depends of course on the technical area of the enforcement, the jurisdiction, and the workload of existing attorneys. And the good thing is that once we rotate patent attorneys into a litigation team, it’s great experience for them, that leads to expertise, and since we try not to over-specialize, so that people don’t only do litigation or only do prosecution, that experience from litigation is a great asset when they go back to supporting a certain business unit doing prosecution work. And coming back to your first question, that personal experience also helps in creating litigation-ready patents over time. Rolf Claessen: Yes, you’ve also acquired a couple of companies, and I have a question about a certain deal, especially the Marvell Brightlane acquisition and the IP due diligence. This $2.5 billion Brightlane deal closed in August 2025 and presumably transferred a substantial patent portfolio in the automotive, let’s say networking, technology field. How much of that big deal is really about buying IP, and how does a deal like that change your daily work in your IP function the day after closing? So once you’d signed the deal, did your daily life change? Peter Berg: It depends on the size of the deal. A couple of questions in there. Let me start with IP in the semiconductor industry, my industry, and that’s more than patents, trademarks and design rights. Speaking to practitioners and R&D colleagues, IP for them is rather frozen technologies and what we call IP blocks, design blocks which enable fast product designs that you can reuse. And if I take that as a basis, although each acquisition is different, IP plays a very big role because it should enable us to bring new products to market quickly, et cetera. Seldom does Infineon acquire a business because of its patent portfolio. Being a large, established player, our existing patent portfolio should be good enough to move into whatever technical area is of interest, and to make sure incumbent competitors couldn’t easily attack us when entering that field. Now, you mentioned the Marvell acquisition. We call it rather the Marvell automotive Ethernet acquisition. From Marvell’s perspective it was a smaller part of their business, which they sold to Infineon about a year ago. How should I say it, you get the assets but you get relatively little IP. So it’s more that you try to familiarize yourself with the assets and how they fit our business case, et cetera. Of course there is due diligence to get an idea and to make sure that everything that should belong to the business is transparent, but the more important part comes after the acquisition. Once the business is owned by Infineon, all the other functions handle their own areas of responsibility. For us, when it comes to IP rights, it’s about reaching out to the new colleagues, helping them for the first couple of days, but also leaving them alone, because there are so many changes they have to go through, and not being overly pushy. Understanding their current processes and tools, and their view of their own portfolio, is important at that point. So you hold back a little and see what they do and why they do it, sometimes you can learn from their best practices. But there comes a moment when we need to finally decide how to integrate the portfolio, and which of our processes and tools they have to adopt, and the faster you make that decision, the better. Since in the case of Marvell none of the IP staff joined us, the task was to build up a portfolio using the expertise of the senior engineers, get a good operational patent committee running, and develop a plan for which areas of the portfolio are good enough and which need to grow, in line with the growth of the business. It’s now more than a year ago, but that was an interesting time, and I doubt many people listening are aware of it, but a big thank you to everybody involved back in 2025. Rolf Claessen: From your answer I get that your job involved a lot of listening, basically, to the needs of the teams that joined your company, right? Peter Berg: At least as much talking as listening. Of course they want to know as well how we do things and what’s expected of them. So first of all it’s about reaching those people and making sure, and this is also a concern, that if everything changes for them, then perhaps the patenting process isn’t the most important thing. Product development is key, and making sure there’s no interruption so they can keep their timelines, et cetera. So being very mindful of that setting. But you’re right, it’s not just about telling them, it’s about listening to them and finding the right moment to switch. Rolf Claessen: Right, I have a very different question now, about NPEs, non-practicing entities, and exposure. I think some NPEs acquired patent families that trace back to Cypress, just before you bought it, or around the time of your acquisition. Are these patents, held by these NPEs, now a problem for Infineon? Peter Berg: That would be it, right? Actually, no, let me give some context first. Companies in distress, or with an overly large patent portfolio for their business, sometimes sell patents at a certain point in their history. Regarding Cypress Semiconductor, that happened around 2016, after they merged with a company called Spansion and ended up with a large combined portfolio they didn’t need. At that point Cypress teamed up with an NPE organization called IP Value and sold them around 2,000 patents, that’s public knowledge, and only a few years later Infineon acquired Cypress. So that was done by Cypress before it became an Infineon company. But good practice is, if you sell a patent, you retain a license for your own business, so in that sense I don’t feel any exposure from those patents. But of course this touches on the general topic of exposure to NPE enforcement, which is a concern in the electronics industry. Realistically, hundreds is perhaps too much, but many dozens of new cases a month, often against our customers or the wider ecosystem. But since it involves technology implemented in our products, even if the enforcement doesn’t target semiconductor players directly, we need to support our customers, and that is a kind of a load we need to help carry. But these are typically patents that somebody else sold to an NPE. You were also asking whether acquiring businesses brings new opportunities as well as new risk. I think that’s natural, and we shouldn’t shy away from that kind of risk. If we, like any other company, go for the big, high-margin, fast-growing businesses, the stakes are high in those areas, and you can’t complain if these also turn out to be litigious marketplaces, because many people want to be there. Around this time of year, since it’s Oktoberfest season here in Munich, many IP practitioners from around the world gather for meetings and share their view on the world. Everybody talks about AI, and NPEs try to acquire whatever patents are on the market that could be the basis of stronger or weaker infringement actions against that part of the industry. From an industry perspective, this consumes a lot of resources and doesn’t really help accelerate innovation in our space. Rolf Claessen: Good that you have a solution for the patent families that were acquired before you acquired Cypress. And now, turning to a very different topic, cryptography. You’re also working on quantum cryptography and post-quantum cryptography, a difficult word, and you, Infineon, were the first to obtain a certification, a really high certification in post-quantum cryptography, the so-called CC EAL6 certification, a very high certification in cryptography for our listeners, in December 2024. Now this field of technology is heading towards standardization. How patent-dense is Infineon’s patent stack in this field, and how are you thinking about the potential standard-essentiality of this new post-quantum cryptography technology, where maybe the American standards from the NIST institute become the infrastructure, or the standard? Peter Berg: It’s a big field with different components. We take the quantum challenge seriously at Infineon, but there are two elements to it. You spoke more about cryptography, but for us, as a semiconductor player, on one hand we want to enable quantum computing with our own chipsets, and we support two different technology streams there, it’s not just development, it’s already a real business. On the other hand, we need to educate and enable customers in the application fields we serve to prepare for that quantum day, the day quantum computing becomes available, and not only to the good guys. You need to think about this now, because it might be just three, four, five years away, you don’t know for sure. It means investing in infrastructure able to handle post-quantum cryptography and security in communications, because you need certain computing power and different ways of handling cryptography algorithms compared to today. Today’s approaches won’t be enough, you need better ones, and you mentioned one at the beginning, which Infineon has proposed. That’s not easy. If you invest in a core today, you’re investing in something like a power station, which stays connected to the internet for a long time, so you need infrastructure robust enough to handle post-quantum cryptography. Regarding the patent stack question, yes, certainly there are several patents in this field owned by Infineon, but also by others. In general, I believe, both in semiconductors and in security more broadly, this tends toward royalty-free licensing, and standard setting has in the past been marked by the avoidance of the big patent clusters we saw building up in cellular communication, from 2G through 5G. I don’t see that happening in the post-quantum cryptography field, but who knows, so we prepare for whatever scenario comes. Rolf Claessen: Let’s see if the Infineon patents end up in a big pool or something later on, and you get all these license fees. Peter Berg: I wouldn’t mind, yeah. Rolf Claessen: Let’s see. Right, now turning to another topic, maybe, for example US colleagues ask me a lot about the German employee invention law. It’s very different from other countries, especially the US. Do you see the German employee invention law rather as an opportunity or a burden for Germany’s innovation ecosystem? Peter Berg: As IP professionals in larger corporations in Germany, we’re so used to that law that we hardly challenge its usefulness. To your question, though, with more than 30 years of experience, I’d say that 99% of all inventions are made by engineers in R&D as part of their regular job, nothing extra on top, so they don’t need an extra motivation for it. And we see it in other countries too, where that kind of law doesn’t exist, and people are just as innovative and just as ready to share their inventions with us as an IP organization, with or without the law. So it doesn’t seem to fulfill the role some see as a competitive edge for Germany, and because of that inventor law, people just end up being more cautious, or more descriptive, about their work results. There are more reasons why I believe this is obsolete. Invention does not equal innovation. There are many other colleagues in a company, in procurement, production, quality management, et cetera, and all of them contribute to a product becoming a bestseller. It’s not a single person, and it’s not just one team’s result, and somehow it doesn’t feel fair that the inventor gets an additional bonus and the others don’t. In any case we’d give our top engineers a premium anyway, and we reward inventors in all other countries, with the law or without it, without any worldwide mandate for that kind of remuneration. So from a corporate perspective we don’t need a law to help us work out the benefits and share them with our top inventors. The law is a bureaucratic nightmare. It needs to be abandoned, or at least radically simplified. In smaller organizations, I guess it’s often just ignored or badly implemented. Believe me, every company we’ve acquired with operations in Germany has left us a bit of a heritage to clean up. Rolf Claessen: Yeah, I understand. Now for a different topic, AI, the use of AI. We as patent attorneys talk about this a lot, it’s a big topic, how to use AI, whether to use AI, and how to use AI in law firms. But can you tell us about the use of AI in the operations of your team? Peter Berg: Recently we discussed this and agreed on kind of three layers to it. First, good use of established AI tools. AI, in that sense, isn’t something that started three years ago with ChatGPT. It began with search, patent search, then translation, at least between the major languages like German and English, which most of my team masters, and then, I’d say about two years ago, drafting and replies to office actions. So there are established tools, and as with every tool, you need to use it repeatedly, at a certain volume, to really benefit from it. We try to work with the best of these established tools, driving wider adoption within the team and partnering with our law firms, since a substantial part of the legal work is done by our outside counsel. So this is a bit of a joint exercise. Second, there are constantly new tools coming up, which we try to test. There are many, so the time we have available to look into them is the limiting factor. I’d like to test more, because there might be a new frontrunner coming up that we should definitely try ourselves. But last, and certainly not least, we try to implement AI into everyday operations, into the office environment itself. The company made a good decision in spring to allow wide adoption of AI-specific tools in a secure environment, and that has opened up a lot of opportunities for everybody, paralegals and attorneys alike, and now it’s about fostering an open exchange on what’s possible and what’s not. And finally, since Infineon, like most corporations, doesn’t do everything in-house, there’s the question of what the benefits are that we can plan around, so that we get better quality. If the quality of the AI results isn’t as good as the attorney’s results before, then we shouldn’t use it, or we’d spend so much time cleaning it up afterwards that nobody could tell the difference. Second, we can now do things that weren’t possible before, because they were too tedious or took too long, or we get faster turnaround times, so we can respond more quickly to standardization proposals, what used to take many days we can now do in a few days, while still trusting the quality of the output. And only then comes what’s often discussed as efficiency gains, and the question that will probably be asked next year is how we split the pie: if both we and outside counsel benefit from using AI, what do we do with those benefits, how much stays with outside counsel, and how much should also benefit my budget? Rolf Claessen: But I clearly see the advantages of using AI, I’m using it myself, especially for cases like oppositions, where in earlier times you had to read through some 30 papers, patents and books, and now you can just ask the AI where you find a certain feature across those 30 documents. So it’s really useful in a lot of cases. Now my last question to you, and maybe the most important one, what do you think are the three most important messages you want to convey to our listeners, who are mostly IP professionals, both in-house and in law firms? Peter Berg: Do you want me to repeat things I said before, or can I think freely, in general? Free thinking, of course. Okay. Many of the things we spoke about now were about what to do next, and how to execute certain things, how to prepare. I believe that if you think about IP strategy, you think about it from the end: what do I need to assert, against whom, for what purpose, before building a portfolio of IP rights. So it’s not just about the deadlines you have today and tomorrow, which you somehow have to get through, but about taking a step back and thinking, what should this be good for in 10 or 20 years’ time. If you do that, it helps you get to litigation-grade patents and litigation readiness. We’re all busy, and there are so many things we need to do today and tomorrow, so it’s easily forgotten to look a little further down the road. So I’d say, think about a multi-year plan to achieve your goals, and there are hardly any moments, unless perhaps you’re one of the big AI platforms with unlimited resources, where that isn’t true. So plan for multiple years, but with a good cost-benefit ratio in mind. And I can’t really avoid mentioning AI here. It’s having a major impact on our operations. We’ve talked about it, we’ve tested it, but ramping it up is a different matter, and I think next year will be decisive. That’s really the full value chain, from interacting with our inventors to get better quality ideas, all the way to claim charting and negotiating, the bread-and-butter activities of patent attorneys, drafting office action replies is of course part of that too. I’m really keen to see that happen, and I’m trying to keep my team ahead of the wave. And I can only encourage everybody in our profession, if you don’t yet have a contact, team up with friends or colleagues in the profession, use the various associations that exist in our profession to network and discuss. The worst thing is to miss the train, and it takes time, this isn’t something you become good at overnight, so it needs time to train, and it’s good to start now. Rolf Claessen: Yes, that’s a very good point, and closing where we began, with the VPP, exchanging ideas among colleagues really is key, I think, important. Thank you very much for being on IP Fridays, on our podcast. That was really interesting, and I think our listeners can learn a lot from this interview. Thank you very much. Peter Berg: Don’t mention it, it was a pleasure talking to you, and for me it was also the first time doing this kind of podcast. Thank you. Rolf Claessen: Thank you
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  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 28.08.2026 24นาที

  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 carried a brand identity for years, and ask whether they’re actually protected. Second: monitor. A large share of dupe disputes start on social media, not in a courtroom. That means someone needs to be watching hashtags and influencer content, not just from direct competitors, but from adjacent or even unrelated brands that could end up duping a product without anyone noticing until it’s already trending. Third, and the one Byczko clearly considers most underused: consumer education and brand storytelling. “This is the original” is a weak pitch on its own in a market flooded with cheap alternatives. What works better is explaining, specifically, what makes a product different: its formulation, its sourcing, its performance, its longevity. Give people a real reason to pay more, not just a claim to authenticity. Where This Goes Next Byczko doesn’t think dupe culture is a passing trend. Her expectation is closer to “there will eventually be a dupe of everything,” and she’s watching an interesting generational pattern where teenage shoppers are teaching their mothers about dupes, who are in turn teaching their own mothers. On the legal side, she expects more clarity as cases like Van Leeuwen work their way through the system, giving brands a clearer formula for how to define and defend trade dress. On the brand side, she expects less reliance on litigation as the primary weapon and more investment in what’s genuinely hard to copy: real innovation, ingredient transparency, and storytelling that a dupe simply can’t replicate. One data point she raised stuck with us: search interest in the word “craftsmanship” is at its highest point in twenty years. After years of leaning into dupe culture, there are signs some consumers are swinging back toward wanting the original, the real ingredient, the real technique, the thing that can’t be copied to the same quality. For brands sitting on distinctive packaging, a signature shape, or a product identity they’ve never formally registered, that’s less a trend forecast than a to-do list. Here is the full transcript: Ken Suzan: Thank you, Ralf. Our guest today on the IP Friday’s podcast is Caitlin Byczko. Caitlin is a partner with Barnes and Thornburg LLP and is based in Indianapolis, Indiana. Caitlin crafts and defends global brand strategies, protecting intellectual property assets with creative solutions and highly tactical advocacy. She excels in trademark prosecution and litigation before the Trademark Trial and Appeal Board and federal district courts, safeguarding trademarks and digital properties for businesses of all sizes and at every stage of the business life cycle. From startups to Fortune 500 companies, Caitlin manages clients’ intellectual property needs across diverse industries. Her experience spans retail, fashion, luxury goods, sports, technology, agriculture, venture capital and pharmaceuticals. Beyond trademark law, Caitlin brings valuable insights from her law school experience with the National Collegiate Athletic Association, NCAA, and her previous work serving in a technology company’s in-house legal department. Her tenacious nature and clever problem-solving skills shine through in complex matters, earning praise from clients and colleagues alike. Caitlin is co-author of “Dupe Culture Meets the Courtroom,” published in Global Cosmetic Industry on March 16, 2026. Welcome, Caitlin, to the IP Friday’s podcast. Caitlin Byczko: Hi, Ken. Thank you so much. I’m very honored to be here. Ken Suzan: Yeah, so Caitlin, today we’re talking about dupe culture, a topic that is rapidly becoming front for many brands around the world. What’s the actual difference between a dupe and a counterfeit? Caitlin Byczko: That is one of my favorite questions. This is the most important distinction to draw when we are talking legally about dupes because the difference, because media and social media often use the words interchangeably and legally they’re very different. A counterfeit is a product that uses someone else’s actual trademark. We often think of a fake Chanel bag with interlocking C’s or a fake Louis Vuitton. It’s relatively straightforward trademark infringement and generally above certain thresholds is a federal crime. A dupe, by contrast, is a product that mimics the look, feel, or performance product without actually using the name or logo. We often think of it in the beauty products, in the fashion space, some brands like Elf Cosmetics, which was in the article you just mentioned, Zara, Costco’s Kirkland brand, Quince, who are all very well known in the dupe space. Ken Suzan: What has led to the rise of dupe culture? I’m reading about it virtually every day. Caitlin Byczko: I feel very strongly about this and I’m always talking about it in my legal and non-legal worlds. It’s a very interesting societal change that I think we’ve seen over the past year. I am a lawyer, I am not a marketer, I am not a sociologist, but in my opinion, social media and influencer culture specifically has really created the kind of rise in dupes that we see today. I don’t think we can talk about modern dupe culture without talking about TikTok specifically. Dupe content is its own genre, essentially on TikTok and on Instagram. There’s a whole vocabulary that people are dupe influencers, where their whole product, everything that they’re doing and selling, all of the content they’re making is dupe related. What’s really changed is the speed, I think, around when other products or when a dupe product comes out, how it can be marketed and how people can find out about it. The speed of commerce itself has increased wildly as a result, in part because of social media. A product used to take months to build a reputation as a good alternative. When we think about things, generic cereal is one thing that I have been talking about with my parents with respect to dupe culture. It was one of the things that there used to be, you would go to the store and there would be the cereal, the name brand cereal, and then there would be the generic version of the cereal, which was usually less expensive. That in a way was a dupe. It took a long time. Your friends knew about the dupe cereal and then you knew about the dupe cereal. Then it all got around. Now a single video can send a dupe product sold out within days, within hours sometimes. Oftentimes, a brand’s own team doesn’t even know about the dupe until it’s already been wildly out. Part of it becomes this legal issue when there are claims coming around the dupe. In the Sol de Janeiro case against Macau Beauty, part of the complaint isn’t just about the trade dress and the packaging, which I think we’ll talk about. It’s about the influencer content and the testimonials and what people are saying about the dupes. There’s so much evidence now and there’s so much content and there’s so much out there regarding dupes on social media, on TikTok, and in other places. Ken Suzan: Yeah, and it’s an ever-evolving story. Every day there’s new social media content, more evidence for a potential gain, right? Caitlin Byczko: Absolutely. Ken Suzan: So if dupes aren’t using a particular brand name, how are companies suing over them at all? Caitlin Byczko: So this is really where trade dress comes in, and trade dress, as most of us know, has been around for a long time. There are a lot of very well-known things that you probably see or use every day that you don’t know are protected by trade dress, but they are. And the trade dress protects the overall kind of look and feel of a product. So if you think about things like packaging, color combinations, shape, label design, when that becomes distinctive enough, right? When consumers see that and kind of immediately understand it has the secondary meaning related to the brand owner, then it can become a protectable trademark. And so the test for trademark infringement is likelihood of confusion. And courts will look at the factors of how similar the products actually look, how sophisticated the shoppers are, whether there’s evidence that people were actually confused. I think one of the big cases in the trade dress space that came out since you and I discussed originally, Ken, is the Van Leeuwen versus Rebel Creamery ice cream case. And so for any of those interested, it’s a very interesting opinion. It just came out of the Eastern District of New York. I think that really helps people, brands specifically, kind of provide a roadmap with respect to how to define a trade dress. I think they did an excellent job there defining what the trade dress was for the packaging. And I think that that had a lot to do with the success. Ken Suzan: Yes. Ken Suzan: Why do you think younger consumers gravitate towards dupes so much more than past generations did? Caitlin Byczko: I think there are a few things that are kind of top of each other. The obvious one is economics. I think younger consumers, especially Gen Z, they’re shopping in an environment where there’s affordability pressure. And I think that dupes let them participate in certain trend cycles without the price tag. Gen Z is a significant demographic behind the growth of dupes. And they have a predicted spending power we saw recently, $12.6 trillion by 2030. Ken Suzan: Wow. That’s incredible. Caitlin Byczko: I think it is really also coupled with more of what I would say is a cultural shift. Again, I am a lawyer and this is just my opinion. But what feels aspirational is really changing, I think. And a generation ago, we saw in the fashion world, there was a really big, people really liked logos. Having a logo, owning a logo was the point. And now for a lot of younger shoppers or even more savvy shoppers, actually being a savvy shopper is the status symbol itself. So for a lot of creators, finding the dupe before anyone else or being the one who tells your followers about the dupe really has its own, and it’s less “I have this real thing” and more, “oh, I outsmarted the markup.” And I think it’s that kind of value. I think younger consumers are more publicly skeptical of the idea that something is worth five or ten times more just because of the name on the packaging. And I think that that becomes the case particularly in beauty and then clothing as well. And so I think it’s coupled with the question of craftsmanship and all of these different things. Like we can’t view anything in a vacuum, which is why I could talk for 500 years about this topic. Ken Suzan: Yeah, definitely. Now brands obviously want to protect themselves. That’s an important thing. But going after a dupe can backfire publicly, particularly on the internet. Can you comment on this possibility and what should brands do? Caitlin Byczko: Sure. I think the biggest thing is what you just said. So I think there’s the legal component. And when we’re assessing this for one of our brand clients, I think we cannot review one without the other. So I think you have to say, do we have this claim? Do we have a protectable trade dress or a look and feel claim? And what is the potential backlash in the public? I think it is also a joint PR concern, because what we see is suing over a dupe can very easily read to the public as, oh, this big brand or big corporation is coming down on a small competitor or on its own customers that made the original brand aspirational. I think that we see this in a lot of the big cases that are out right now. So brands, I think, can start to think about enforcement as a communication strategy first, because sometimes the smarter play isn’t necessarily filing a lawsuit. It’s kind of a quieter cease and desist, a takedown request, or separately, it might be really doubling down on the craftsmanship or on a marketing side of what makes the product worth the price. I think Charlotte Tilbury is a great example of this, who’s really leaned into this kind of “can’t be duped” or “you can’t remake the original” with respect to some of their really core products. And so I think people really need to, or brands really need to, assess: one, how can we define what it is that’s being duped? And again, that’s where I think that Van Leeuwen case, I think, will be really interesting over the next few years, with respect to kind of providing this roadmap to help people say, here is a way that we can try to really define what the trade dress is and then be able to protect it and be able to enforce it. Ken Suzan: Caitlin, are there cases right now, I know we just talked about the Van Leeuwen case, but are there cases right now that you think will actually set the tone for how this area of law develops? Caitlin Byczko: Absolutely. And I think some of the cases probably are even in the works, they’re not even filed yet, which is probably very exciting to us as trademark nerds. I do think the Lululemon versus Costco case will be a big one. It’s not just trademarks and trade dress, as many of them are not. I think a lot of times we see in these cases brands are very smartly using kind of all of the different types of causes of action that they bring: trademark, patent, false advertising, a lot of different things. And so I think that that one is definitely certainly one to watch kind of in the fashion space. And then the Sol de Janeiro versus Macau Beauty. Macau Beauty has been sued multiple times, I think, in various jurisdictions. And so I think part of that one is very interesting to me because I think it’s this, it loops not only trademark protection, but also it brings in false advertising, it brings in influencers, it brings in all of these different things. And so I think, like we had talked about previously, nothing is really viewed in a vacuum. And I think for all of these cases, one really important thing, maybe that we didn’t necessarily have access to 10 years ago, or certainly 20 years ago, is this like just ripe amount of evidence of potential confusion or potential non-confusion. When we go on social media and look at all of these things, and then read the comments and all of this different data that’s out there, it’s fascinating, because if you’re in trial, or if you’re going to trial, you’re sending a cease and desist letter, like there is evidence of what the consumers think right here in front of you, right? And the weight of that evidence obviously depends on what it is. But it’s fascinating the way that you can very quickly identify, you know, is there confusion? Is there not confusion, in a way that you likely could never have even thought to consider 10 to 20 years ago? Ken Suzan: Now beyond litigation, what should brands actually be doing to protect themselves in a dupe-driven market? Caitlin Byczko: I think one of the best things that we can do, right, is starting to register the trademarks. I think that’s an obvious one. And really start to consider where the product is genuinely distinctive. And so if it is genuinely distinctive, pursuing a trade dress or a design patent early, before a dupe exists, before anything happens. And I know that can be difficult, because oftentimes brands don’t know for sure what’s going to take off and what’s not. It can also be a surprise. But I think it’s really pushing brands that when you are innovating and when you are doing something that is truly unique and truly distinctive, or when you’re looking back on your brand assets and saying, this thing has been an anchor brand asset for 10 years, you know, have we sought trade dress protection? Is there a way that we can do that? The second layer really is monitoring, in my mind, because a lot of dupe disputes do start on social media. And I think it is important to have people within a company, if you have a product that you’re really keeping an eye on, or that you’re concerned about being duped or causing confusion, having someone who is keeping eyes on hashtags and influencer content and all of these various things. You know, we’re not watching just your direct competitors, we’re watching other completely different brands, or kind of made-up brands even, who could be duping the product. And then I think the third thing that I see as very important is this kind of consumer education and brand storytelling, which is when we kind of get outside of the purely legal side of it. And, you know, legal and marketing and brand and social kind of all need to work together, right? I think if the only pitch to consumers is “this is the original,” it kind of becomes a weak argument in a market where there are cheap alternatives everywhere. But I think the brands that really explain what actually makes their product different, in its formulation, its sourcing, its performance, its longevity, it really gives people a real reason to say, I want to pay more for this brand because of XYZ, you know, the technology or whatever that is. Charlotte Tilbury is one that I had mentioned. I know Olaplex kind of had a big campaign around “OlaDupe” is what they called it. So I think really unique and interesting marketing also assists with that. Ken Suzan: Caitlin, where do you see dupe culture heading? Is this a trend that plateaus or does it fundamentally change how brands operate? Caitlin Byczko: I think dupe culture itself is here to stay. I mean, I think we are only getting into a world where there is truly going to be a dupe of everything. And it’s not good or bad necessarily. I think it is just where we are in life. And I think, you know, things serve different purposes. And it all depends a lot on how the younger consumers shop. And it’s also changing how older consumers shop. You know, I’ve read a lot about teenage girls teaching their moms about dupes, who are then teaching their grandmothers about dupes, right? So on the legal side, I think we will get clarity eventually. I think right around, you know, all like all of these things, which seem so complex, and we’ll never know the answer. You know, five [years] from now, we will probably have certainly more clarity, because a lot of these cases will move forward. You know, the Van Leeuwen one, which I’ve now talked about multiple times, but I just obviously think it’s very fascinating. I think that that’s one where you have a roadmap, right? And it may be contested, or, you know, everything is very fact-specific in the trademark world. But I think it will open the door to allow people one more aggressive brand enforcement. But it will give people a roadmap proactively to kind of say, if we follow this formula for our trade dress, or, you know, defining our trade dress, then, you know, we have something we can potentially protect. And then I think on the brand side, we’ll likely see less reliance on litigation as the primary weapon and more investment in things that are actually, you know, difficult to dupe: innovation, ingredient transparency, marketing, genuinely interesting brand storytelling is something that we’ve seen. I read this past week that searches for craftsmanship, just like generally the word craftsmanship, and kind of products with craftsmanship, is at an all-time high, than it’s been in like the past 20 years. And so it’s interesting, right, that we have gone from this kind of luxury item or high craftsmanship to this dupe culture that we are in now. But there is some potential shift where people are saying, you know, now, I’ve seen all of this and I have all of these options, but now actually what I do care about is the original, right, the innovation or the ingredient transparency or all of those things that can’t necessarily be copied to the same quality. So it’s why it will just provide us with endless topic of discussion, because I think it will only just keep changing forever. Ken Suzan: That’s right. Caitlin, I want to thank you for spending time with us on the IP Friday’s podcast. This has been very insightful, and I’m sure we’ll be talking about this issue in the months and years to come. Caitlin Byczko: Thank you so much, Ken. I really appreciate it. Ken Suzan: Thank you.
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  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 31.07.2026 38นาที

  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 based on non-European patents to be brought before a home court where the defendant is based in the EU. Commentators quickly started calling this “long-arm jurisdiction.” One clarification matters here, because it tends to get lost in the public discussion: the ECJ did not say that a European home court can revoke or invalidate a foreign patent. That remains a matter for the authorities and courts of the country that granted it. What the ECJ said is that a European home court may assess the claims between the parties. That distinction is essential to how you should read this ruling. Consequences in Practice: Fujifilm, Regeneron, and Onesta Three recent cases show how quickly practice is already adapting to the new possibilities. Fujifilm v. Kodak: the Düsseldorf Local Division of the Unified Patent Court accepted jurisdiction over the UK part of a European patent even before the ECJ delivered its judgment, building on reasoning the Advocate General had already signaled in the BSH case. In June 2026, the UPC Court of Appeal further developed that approach based on the principles confirmed in BSH. Regeneron v. Formycon: the Munich home court applied the BSH framework and granted a Europe-wide injunction based on a European patent, one of the first examples of a national home court putting the BSH logic into practice. Onesta v. BMW: this case shows the debate has moved well beyond Europe. After Onesta attempted to assert two US patents before the Munich home court, BMW obtained an anti-suit injunction from a Texas federal court. Judge Albright took the view that US patents should generally be decided by US courts. The injunction was directed against Onesta, not against the Munich court, and Onesta has appealed the Texas decision. The Munich home court stayed the proceeding but did not reject its own jurisdiction. Whether a European home court can ultimately decide infringement claims based on US patents remains an open question, one that has turned from a European jurisdiction issue into an international jurisdiction conflict. What This Means for Your Company Heilein sums up twenty years of litigation in three lessons, and I share this assessment without reservation when advising my Mittelstand clients. First: patent enforcement has become more international. National litigation still matters, but companies should think across borders from the very beginning, not only once the first cease-and-desist letter has been sent. Second: choice of forum now carries real strategic weight. Where you bring a case can matter just as much as the legal arguments themselves. Third: long-term commitment pays off. Major developments rarely result from a single filing or a single hearing. They come from pursuing a clear strategy consistently over many years. For you as a managing director, R&D lead, or Head of IP at an innovative Mittelstand company, this translates into two concrete points. First, if you hold rights in several European countries and a competitor infringes them, you no longer necessarily have to fund five or six parallel national proceedings. A single action at the infringer’s home base can be the economically smarter option. Second, and this side of the ruling gets less attention in public discussion, if your company is based in Germany and operates across several countries, you can now be sued at your own home base over patent infringement claims tied to activities in other countries. That risk belongs in every freedom-to-operate analysis and in every assessment tied to acquisitions or market entry. Here is the full transcript of the interview: Host Today’s interview guest is Dr. Ernst-Peter Heilein. If you don’t know Ernst-Peter, he is a German and European patent attorney, the founder of HEILEIN IP LAW, and a long-time IP leader at BSH Home Appliances. Thank you for being on IP Fridays. Answer Yeah, great to be here! BLOCK 1 – THE PERSON BEHIND THE CASE Host When looking at your career, one thing stands out: you never really followed the traditional path of either private practice or industry. Er, how did your professional journey begin, actually? Answer My professional roots are actually in private practice. After qualifying as a Patent Attorney, I worked in private practice and fairly early founded my own law firm, which later became HEILEIN IP LAW. Host So you never completely left private practice behind? Answer Exactly. In 2005, I had the opportunity to take on additional responsibilities on the BSH side. There, I was able to build and lead a new unit within the IP organization. The team was responsible for patents in the small appliances business, as well as global design and trademark protection. At the same time, I helped build an international network of internal and external IP counsel and coordinated their work. Host That still sounds fairly like traditional IP work. When did international disputes become part of your career? Answer Over time, my focus gradually shifted from traditional IP protection to strategic enforcement. That included anti-counterfeiting activities, global trademark and design matters, and cross-border patent disputes. Host So your work became more about enforcing rights rather than simply obtaining and managing them, right? Answer Exactly. And that development eventually led me to play a strategic role in the case BSH Home Appliances versus Electrolux, a case that still accompanies me today. Host Looking back now — from private practice, to building an international IP organization, and eventually becoming involved in a case before the European Court of Justice — did you ever imagine that path? Answer No, not at all. Looking back, this combination of private practice, responsibilities on the business side, and international enforcement experience turned out to be very useful when our case eventually reached the European Court of Justice. BLOCK 2 – HOW IT ALL STARTED Host Yeah, talking about this case. The case BSH versus Electrolux started long before it reached the European Court of Justice. When did the story actually begin? Answer The story actually begins much earlier than most people would expect. The invention itself dates back to 2001 and concerns a new vacuum cleaner technology. In 2006, we identified what we believed to be an unauthorized use of the invention and contacted Electrolux to clarify the situation. The European patent in suit was granted in 2009 and validated in a number of European countries. At the time, nobody could have imagined that this would eventually lead to a decision of the European Court of Justice almost twenty years later. Host Wow, 20 years! That’s a long time. So, at first this was simply a normal patent dispute? Answer Yes, absolutely! After many years of opposition and appeal proceedings before the European Patent Office, we were finally able to defend the patent successfully in late 2018. Less than one year later, in the summer of 2019, the Higher Regional Court of Düsseldorf found that certain Electrolux vacuum cleaner models infringed the patent. Host Er, at that point, one might think, that the patent owner had achieved its goal, right? Answer That is what many people would think. But that judgment did not bring the dispute to an end. A new challenge emerged. The patent had been validated in many European countries. Winning in one country, like Germany, did not automatically solve the enforcement issue in all the other countries. Host What was the practical problem then? Answer We were facing a very simple question: How do we enforce a patent that exists in many countries? And how do we prevent claims from becoming time-barred without filing separate infringement actions in every single country? Doing that would not only be legally complex. It would also require a huge amount of time, effort, and money. Host That sounds less like a major legal question and more like a business problem. Answer Exactly. At the beginning, this was not an academic discussion about jurisdiction. It was a very practical business question. How can we enforce our rights efficiently without running parallel lawsuits all over Europe? That was the real challenge we were trying to solve. BLOCK 3 – THE IDEA OF A CENTRAL ACTION Host So, how did the idea of one central action emerge? Answer While looking for possible solutions, we came across Article 4 of the Brussels Ia Regulation. The idea behind that rule is very simple. In general, a person can be sued in the country where that person is based. In our case, that pointed us toward the Swedish home court because Electrolux is based in Stockholm. Host That sounds like a fairly ordinary jurisdiction rule. Answer Yes. And that was exactly what made it interesting. Article 4 is the general rule. The question was whether that rule could also be used for patent infringement claims covering several countries. Host Was that a common approach at the time? Answer No. Quite the opposite. Many people believed that cross-border patent litigation in Europe was effectively dead. Host That sounds rather dramatic. Why did people think that? Answer Because there was a widely held view that a central patent case could be stopped as soon as the defendant challenged the validity of the patent. As a result, many companies assumed they had no real choice but to litigate country by country. Host Yet you decided to look at the issue differently. Answer Yes. Sometimes it is worth taking a fresh look at accepted assumptions. We felt that Article 4 might play a much more important role than many people believed. Host So at that point, you already saw an opportunity, right? Answer Yes, we saw a possibility! Not a guarantee. But we believed there was a strong legal basis for bringing all claims before the Swedish home court. Host And that eventually led to the lawsuit being filed in Sweden, right? Answer Exactly. In 2020, we decided to file the action in Sweden. That followed our success before the European Patent Office in late 2018 and in the Düsseldorf infringement proceedings in 2019. At that stage, our objective was very practical. We were simply trying to find an efficient way to enforce rights that exist in many countries. Host At that point, you already think the case might end up before the European Court of Justice? Answer No. Not at all. We were focused on solving a business problem. The idea that the case would eventually reach the European Court of Justice came much later. BLOCK 4 – THE OBSTACLE: GAT v. LuK Host You mentioned that, er, many people believed cross-border patent litigation in Europe was no longer a realistic option. Why was that? Answer The main reason was an earlier decision of the European Court of Justice known as GAT versus LuK, decided in 2006. For many years, that decision was understood to mean that a home court could lose its ability to hear a patent infringement case as soon as the defendant challenged the validity of the patent. In practice, that understanding made many cross-border patent cases extremely difficult. As a result, many people believed that cross-border patent litigation was not effective. Host And yet you decided to follow exactly that path, right? Answer Yes. Sometimes it is worth questioning assumptions that have been accepted for many years. We believed that Article 4 of the Brussels Ia Regulation played a more important role than many people thought. That is why, in 2020, we decided to file the case in Sweden. Host And at that point, did you already realize that the case might eventually reach the European Court of Justice? Answer No. Not at all. Our goal was simply to find a practical solution to a real enforcement problem. The idea that this would eventually become a case before the European Court of Justice was far from our minds. BLOCK 5 – THE QUESTIONS REFERRED TO THE EUROPEAN COURT OF JUSTICE Host So, how did the case eventually reach the European Court of Justice then? Answer After we filed the lawsuit in Sweden in 2020, Electrolux challenged the validity of the patents. The Swedish home court then concluded that it could not hear the case and declared itself not competent to proceed. We appealed that decision, because the issues were important and affected far more than just our case. We suggested that several questions should be referred to the European Court of Justice. The Swedish Court of Appeal agreed and sent those questions to Luxembourg. Host So, what were these main questions? Answer At the heart of the case, there were three questions: First: if a home court has jurisdiction over a patent infringement case, does it lose that jurisdiction simply because the defendant argues that the patent is invalid? Second: Does it make a difference if the national legal system requires validity issues to be decided in a separate proceeding? And third: Do this jurisdiction rules also apply to patents from countries outside the European Union? Host The third question sounds particularly interesting. Answer Yes, at the time, the discussion in our case focused on Turkey. Today, many people immediately think about the United Kingdom, and some even think about US patents. But originally, the question was much simpler. We wanted to know, whether the same jurisdiction rules also apply when patents from non-European countries are involved. Host And, did you realize how important that third question might become? Answer No, certainly not to that extent. At the beginning, most of the discussion focused on the relationship between the different jurisdiction rules within Europe. Only later did it become clear that the European Court of Justice’s answers might have consequences far beyond the European Union. Host So, how did the European Court of Justice react then? Answer That was actually quite interesting. The European Court of Justice first heard the case before a Chamber of seven judges. Later, it referred the case to the Grand Chamber of 15 judges. That already showed that the European Court of Justice considered the issues to be important. And when the judgment finally came out, some of the answers were very different from what many observers had expected. BLOCK 6 – THE DECISION OF THE EUROPEAN COURT OF JUSTICE Host Let’s talk about the European Court of Justice’s answers. What was, in your view, the most important part of the decision? Answer The most important point was this: A home court does not automatically lose jurisdiction just because the defendant argues that the patent is invalid. For many years, many people believed exactly the opposite. The European Court of Justice made it clear that this understanding was too narrow. The home court where the defendant is based can generally continue to hear the infringement case. That is really the key message of the decision. Host Why is that so important? Answer Because it gives new momentum to cross-border patent enforcement in Europe. Before this decision, many people assumed that a defendant could effectively stop a central infringement case simply by challenging the validity of the patent. The European Court of Justice made clear that this is not automatically the case. Host Does that mean the home court hearing the infringement case will now also decide whether the patent is valid? Answer No, and that is a very important point. The European Court of Justice confirmed that questions about the validity of a European patent should still be decided by the national courts of the country for which the patent was granted, as provided for in Article 24(4) of the Brussels Ia Regulation. What is new, is that the infringement case does not automatically fall apart because of a validity challenge. The home court can keep control of the overall case. Host So, how does that work in practice? Answer The European Court of Justice gives the home court some flexibility. For patents from Member States of the European Union, the home court does not automatically lose its power if the defendant says the patent is invalid. The home court can look at the validity challenge. If it seems strong, the home court may stay the infringement case. If it seems weak, the home court may continue the infringement case. For patents from countries outside the European Union, the home court may also stay the case if there is already a validity case pending in that country. In such situations, Articles 33 and 34 of the Brussels Ia Regulation may apply. That creates a much more flexible system than many people expected. Host Er, we have discussed the implications for patents from Member States of the European Union, but a lot of attention has been given to another part of the decision, that we already talked about briefly, namely patents from countries outside the European Union. Answer Absolutely, and that may be the part of the judgment with the biggest international impact. Host Why? Answer Because the European Court of Justice decided that the special jurisdiction rule for patent validity does not generally apply to patents from non-European countries. In simple terms, that means the general rule can still apply. And that opens the possibility of bringing infringement cases based on non-European patents before the home court where the defendant is based in the European Union. Host That sounds like a very far-reaching statement. Answer It is. That is why many commentators started talking about what is often called “long-arm jurisdiction.” In other words, a European home court may, under certain circumstances, deal with infringement claims relating to patents from countries outside the European Union. Host So, many listeners may now wonder: Can a Swedish or a German home court really decide a dispute involving a British or Turkish patent? Answer Ah, we need to be careful here. The European Court of Justice did not say that a European home court can cancel or revoke a foreign patent. That remains a matter for the authorities and national courts of the country that granted the patent. What the European Court of Justice said is that a European home court may assess the claims between the parties in a dispute. That is an important distinction. Host Did you realize during the proceedings how important this part of the decision might become? Answer Not to this extent. We started with a very practical enforcement problem. Only later did it become clear that the European Court of Justice’s answers might have consequences far beyond the original case. Today, the decision is discussed not only in connection with Turkish patents, but also British patents and even possible claims involving US patents. Host If you had to summarize the decision in one sentence, and I know, this is a very difficult task, what would that sentence be? Answer The European Court of Justice did not re-invent cross-border patent enforcement in Europe. But after many years, it clearly gave it much more room to develop. BLOCK 7 – THE REACTION OF THE IP COMMUNITY Host So, how was the decision received after it was published? Answer Ah, the reaction was very strong. It quickly became clear that many people saw the decision as much more than just another patent case. Many articles and commentaries described it as an important development in European patent litigation. Host Did that surprise you? Answer To some extent, yes. Of course, we knew that the questions referred to the European Court of Justice were important. But I was surprised by how quickly the decision became a major topic of discussion across the European patent community. Host Er, you later presented the decision at several conferences yourself, right? Answer Yes. The discussion started right away. I had the opportunity to discuss and present the case at several conferences and events, including the annual VPP conference in Germany and the Ingolstadt Patent Symposium. I recently received an invitation to serve as a panel speaker on cross-border litigation at the AIPPI World Congress 2026 in Hamburg. What struck me most was that both internal and external IP counsel were trying to understand the practice consequences of the decision. Host So, what was the question you were asked most often? Answer Almost always the same one: How   far   does    this   decision   really   go? People wanted to know whether this was simply a correction of earlier case law or whether it marked the beginning of a new phase in cross-border patent enforcement. Host And what did you say? Answer I would describe it as: neither a revolution nor a minor adjustment. The European Court of Justice did not rewrite the system. But it clearly changed the balance between the different jurisdiction rules. That is why I believe the decision will continue to be discussed for many years, both in practice and in academia. Host Er, one year later, the case received the Managing IP Award as the “Europe Impact Case of the Year.” What did that recognition mean to you? Answer First of all, it was a great honor for everyone involved. But for me, the most important thing was the message behind the award. The award showed that the decision affects much more than the parties involved in the case. It has an impact on European patent practice as a whole. And it also shows that the underlying jurisdiction questions reach far beyond patent law. They are relevant whenever companies have to enforce rights across borders in an increasing international world. That is what makes this case special. Host You often describe this case as a team effort. Answer Absolutely. A case of this size is never the work of one person. Many people contributed over many years. On the BSH side, team members from different functions played an important role throughout the proceedings. And we worked closely with external advisors in several countries. So I see the award as recognition of a shared achievement rather than an individual success. Host Looking at the discussions today, would you say the debate is over? Answer Not at all. I actually think we are only at the beginning. There are still many practical questions that home courts will have to answer in the coming years. That is exactly why the decision remains so interesting. BLOCK 8 – WHAT DOES THE DECISION MEAN IN PRACTICE? Host Let’s move from legal theory to practical business implications. What does this decision mean for patent owners and companies? Answer In my view, the biggest change is strategic. Patent owners now have better opportunities to bring cross-border disputes together in one central proceeding. At the same time, companies need to be aware that they may face claims at their European headquarters covering activities in several countries. So the decision creates opportunities, but it also creates new risks. Host That sounds really like a significant shift; right? Answer I would call it a rebalancing rather than a revolution. The European Court of Justice did not create a completely new system. But it made clear that the general rule — suing a defendant where it is based — plays a much bigger role than many people had assumed. As a result, the court at the defendant’s home base becomes much more important strategically. Host In the patent community, people often talk about cases such as Fujifilm v. Kodak, or Regeneron v. Formycon or Onesta v. BMW. Why are those cases attracting so much attention now? Answer Because they show how quickly practice is already adapting to the new possibilities. Fujifilm was important because it was one of the first UPC cases to test the logic that was later confirmed in BSH. At that time, the BSH case was already pending before the European Court of Justice, and the Advocate General had expressed a view that pointed in that direction. Against that background, the Düsseldorf Local Division accepted jurisdiction over the UK part of a European patent even before the European Court of Justice delivered its judgment. In June 2026, based on the principles confirmed in BSH, the UPC Court of Appeal further developed that approach. Host And what happened in Regeneron v. Formycon ? Answer In the Regeneron case, the Munich home court applied the approach confirmed in BSH and granted a Europe-wide injunction based on a European patent. That was one of the first examples of a national home court using the BSH framework in practice. That demonstrates that the decision is not just an academic discussion. It already has practical consequences. Host And what about the Onesta case? Answer The Onesta case shows that the debate has moved beyond Europe. After Onesta attempted to assert two U.S. patents before the Munich home court, BMW obtained an anti-suit injunction from a Texas federal court. Judge Albright took the view that U.S. patents should generally be decided by U.S. courts. The Onesta case therefore illustrates that the limits of the BSH logic are now being tested internationally. Host Did that end the proceedings in Munich? Answer Not necessarily. What makes the case interesting is that the Texas injunction was directed against Onesta, not against the Munich home court. At the same time, Onesta appealed Judge Albright’s decision in the United States. The Munich home court therefore decided to stay the case for the time being. Importantly, however, the Munich home court did not reject its own jurisdiction. So, at least for the moment, the underlying question remains open. Host Can a European home court ultimately decide infringement claims based on U.S. patents? Answer That question has not yet been answered. But the case has already shown that such an attempt can trigger strong reactions outside Europe. In that sense, the debate has moved from a European jurisdiction question to an international jurisdiction conflict. Host For our audience of internal and external IP counsel, what are the main lessons from this decision? Answer For me, there are three key takeaways. First: Patent enforcement has become more international. National litigation remains important, but companies should think across borders from the very beginning. Second: The choice of forum is becoming more important. Where you bring a case may be just as important as the legal arguments themselves. And third: Long-term commitment matters. This case shows that major developments rarely happen because of a single filing or a single hearing. They usually result from pursuing a clear strategy consistently over many years. Host Do you think this decision will also influence the Unified Patent Court, the UPC? Answer Yes, I believe so. The decision fits into a broader trend toward more centralized patent litigation. Both, the UPC and the BSH decision are driven by the same idea: Handling cross-border disputes more efficiently and more consistently. What is interesting is that many of the questions were faced in BSH versus Electrolux are now reappearing in a new form before the UPC. Cases like Fujifilm versus Kodak show that the discussion about jurisdiction, scope, and cross-border effects is far from over. Institutions may be new. But the underlying challenge remains the same: How do we enforce patents effectively across borders? Host Some commentators even see this as a step toward a more independent European patent judiciary. Do you agree? Answer To some extent, yes. Professor Hanns Ullrich, who supervised my doctoral studies on the legal protection of a then new semiconductor technology many years ago, recently observed that the UPC is gradually developing its own European case law.[DH1]  I think that is — again — a very accurate observation. If you look at the developments since BSH and the first UPC decisions, you can see that European patent litigation is becoming more connected. National courts will remain important. But at the same time, we are seeing a more integrated European patent system taking shape. How far that development will go remains to be seen. Host Looking back on the entire journey — from a vacuum cleaner patent, through litigation in several countries, all the way to the European Court of Justice and an award-winning decision — what is your personal conclusion? Answer My main conclusion is that innovation needs effective legal protection. But it also requires the willingness to challenge established assumptions and explore new approaches. For me, the BSH versus Electrolux case shows that persistence, teamwork, a willingness to challenge accepted assumptions, and a long-term strategic view can sometimes lead to developments that go far beyond the original dispute. BLOCK 9 – THE PERSON BEHIND THE DECISION Host Ernst-Peter, today we have talked a lot about jurisdiction, patent enforcement, and European case law. When you look back at this journey, which has lasted almost twenty years, what impressed you most? Answer Probably the realization that major developments rarely follow a straight line. When we started thinking about the case, we were dealing with a very practical problem. Nobody said: Let’s create a landmark decision of the European Court of Justice. We were simply looking for a reasonable and practical solution for a company. The fact that this would eventually lead to a decision with Europe-wide impact was something nobody could foresee at the time. Host Were there moments when you thought the case might fail? Answer Of course. Whenever a case lasts many years, there will be setbacks, new questions, and unexpected developments. That is exactly why persistence is so important. In the end, success is often not about one filing or one hearing. It is about staying focused on a clear objective over a long period of time. Host You often talk about teamwork. Is that one of the main lessons from this case? Answer Absolutely. A case of this size requires commitment from many people and institutes over many years. On the BSH side, my role was to help maintain the strategic direction and long-term commitment that such a case requires. At the same time, experts from different functions within BSH contributed technical expertise, testing, documentation, and practical support throughout the proceedings. On the legal side, Roman Sedlmaier and his team at IP-Counsels Gigerich & Sedlmaier (IPCGS) helped develop the cross-border litigation strategy and the overall case architecture. Our Swedish litigation team then carried the arguments through all stages of the proceedings. Looking back, it was the combination of institutional commitment, technical expertise, strategic leadership, well-designed case architecture, and consistent execution that made the difference. Host One final question. What advice would you give to young internal or external IP counsel? Answer Stay curious: Don’t be afraid to question accepted assumptions. Be patient: Intellectual property is usually a marathon, not a sprint. And never forget that every patent dispute involves an invention, a business, and many people who have worked hard to bring that innovation to market. For me, that connection between technology, law, and strategy is what still makes this profession so fascinating today. Host Ernst-Peter, thank you very much for joining us today on IP Fridays. Answer Thank you. It was a pleasure to be here.
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  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 26.06.2026 36นาที

  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 likeness and voice without foreclosing the development of generative AI systems that depend on broad rights to process and learn from content. Somewhere between those two interests, a workable legal framework needs to emerge. The brand deal context may be where the issue becomes most immediately practical. When a brand partners with an influencer and the campaign involves generative AI in any form, the contract needs to address control explicitly. Who has final approval over how the influencer’s likeness or voice is used in AI-generated deliverables? What happens to those assets after the campaign ends? These are not hypothetical questions. They are contract drafting problems that any brand counsel or creator attorney should be addressing today. What Comes Next Graves is cautious about predictions, but his sense of direction is clear. The regulatory environment will continue to fragment before it converges. The right of publicity will be updated, imperfectly, in more jurisdictions. Creators will continue to move toward owning more of their infrastructure. And the lawyers who do this work best will be the ones who understand the technology well enough to translate it into practical, defensible decisions for the people they advise. Full Transcript: Ken Suzan: Thank you, Rolf. Our returning guest today is Franklin Graves. Franklin is the founder and editor of Creator Economy Law, a website and newsletter that educates creator economy professionals on the intersection of law and policy with the world of creators, brands, and platforms. Franklin also published the first law review article focused on the creator economy, Upload Complete, an introduction to creator economy law. He regularly appears across news and media outlets as a commentator and contributor with a focus on educating creators and raising awareness of all legal aspects of the creator economy. Franklin is based in Nashville, Tennessee. Ken Suzan: Franklin was invited to participate as one of the creators and creator economy professionals in the first ever White House creator economy conference. Franklin works full time as a product counsel at LinkedIn Corporation. As a member of the product and data team, he focuses on emerging issues in AI and data. Franklin previously held roles on the technology law group at HCA Healthcare, the commercial legal team at Eventbrite, and the business and legal affairs team at Naxos Music Group. Welcome back Franklin to the IP Fridays podcast. Franklin Graves: Thank you so much for having me. It is exciting to be back and reflecting over the last decade since I last joined and also the paper that I wrote that dives into this in more detail. So I really appreciate it. And yes, full disclosure, I currently work for LinkedIn, which is a subsidiary of Microsoft. I’m here in my personal capacity to talk about this, the paper I wrote before joining LinkedIn and all of that. So thank you so much for having me back. Ken Suzan: Excellent. So Franklin, since your last appearance on IP Fridays in 2017, your career has evolved significantly. You are now senior product counsel at LinkedIn focusing on AI and data. How has working inside a major tech platform changed your perspective on the legal frameworks governing digital content compared to when you were viewing it purely from the creator side? Franklin Graves: I appreciate that question because when I wrote the article, I did not work for LinkedIn. And I had been coming from a history in my career where I, right out of law school, worked for a record label like we talked about almost 10 years ago. And I was on the content creation side. I’ve represented a major distributor of classical music digitally at the time. And that was my first exposure to understanding how content was taken from the initial inception stage from creators and routed through all the various digital platforms that were at the time still evolving and even arguably still today continue to evolve. The early days of YouTube Music launching and then Apple Music launching, and then going through all the phases of high-res audio and everything that came after that. So that was an interesting perspective to start my career with. And then I went to Eventbrite, which is a ticketing platform, but was also focused on elevating event creators. They kind of took on that moniker of “Hey, we are event creators that we support.” And that was arguably my first exposure to the platform side, the tech platform side of it, because Eventbrite is a platform. And so then I evolved from there in my personal capacity, in a pro bono capacity representing individual creators across the YouTube space. And that’s what we talked about a little bit back when I first came on the podcast. Franklin Graves: Over the last decade, it’s been a chance to grow my own understanding of the creator economy. The terminology “creator economy” came around. And then now on the other side of it, having written the article and all that, and now being fully in-house at LinkedIn, I truly am experiencing a social media platform. LinkedIn is of course arguably way more than just the platform itself. There are so many different avenues to it, but it is a chance for me to understand what it is like working for a company that is operating the platform that people are distributing content on. There’s a user journey to content and all of that. So it’s definitely enhanced and given me a different perspective from a major tech platform side. And part of my role at LinkedIn is really heavily focused on understanding regulation and how that from an AI and data perspective impacts the company. And so I’ve been really leveling up my game over the last year and a half that I’ve been here, understanding mostly EU regulations, but also US regulations that are still in their infancy when it comes to AI. But really when it comes to privacy and data, those are pretty well established across the board. It’s been kind of a combination of what I learned at Eventbrite, because I went to Eventbrite when GDPR was going into effect. And so that was an eyes-wide-open moment of getting in the weeds with negotiating data processing agreements, understanding data transfers and cross-border data transfers and the like. So it’s been kind of an evolution as the laws and regulations have evolved. So has my career, so has my own understanding, so have the platforms’ responses to those laws and regulations. And I’m sure that probably resonates with a lot of your listeners who have also been growing their practice and their understanding as the laws and regulations in this realm have been evolving too. Ken Suzan: Yes, indeed. Now let’s switch gears and talk about AI. You advise on AI and data daily. As platforms integrate generative AI tools into their tech stacks, what are the most critical best practices in-house counsel should be adopting right now to embed responsible AI principles into product development? Franklin Graves: So as an attorney, one of my key roles is to understand the technology. Even representing creators and working for creator platforms, that’s something I’m constantly trying to do: put myself in the shoes of being a creator. And I think I talked about this last time I was on, but I come from a background where I was working for a major label doing marketing, video editing, social media work. And I was creating content. I understood the whole life cycle from the inception point of an idea to execution and then to the final delivery and distribution of that content to an audience within a major music label. And so part of that is the same thing that I think attorneys, especially in-house, should be doing: using the tools that the product and engineering teams are either developing in-house or partnering with third parties to develop, or a combination of the two. Using them, understanding them, using them as a creator would, using them as an end user or a client or customer would. And making sure that if you understand the product and understand the nuances of how it operates, and being a part of the iterations of that internally before it fully ramps, that really gives you a chance to understand: okay, we have a lot of responsible AI principles and standards and protocols that are in existence right now, whether it’s NIST, whether it’s based on the EU AI Act or anything and everything in between. It’s understanding how to apply those and bring those into a product and an engineering environment in a way that is practical and actionable for the people that you’re supporting, the stakeholders you’re supporting. So I think one of the critical best practices is, number one, understand the product or features that you’re supporting. Franklin Graves: And then understand how you as an attorney can use your expertise and understanding of responsible AI practices, whether it’s a regulatory standard or an industry-adopted standard or a hybrid of the two, to leverage those and implement those, break those down and make them into actionable controls and processes and flows that work within your existing infrastructure. That’s a lot of high-level talk, but that’s the general idea. One concrete example we talk about frequently is with open source AI. If you’re working with a product team or an engineering team that is taking an off-the-shelf open source model and bringing that in-house, a lot of times companies have pre-existing open source processes that cover the use of open source software or code. Piggyback on that. That’s the easiest quick win for attorneys: leveraging your existing open source processes to just build on top of that the AI flavor and layering. It’s not very much that you have to do, but the underlying process of the key stakeholders that need to be involved in the review, whether it’s security, whether it’s executive sign-off if it gets to that point, even export control considerations should already be part of your existing open source software process. So layering in on those existing processes the specifics of generative AI or large language models that you’re trying to bring in is a great way to put this into practice. Ken Suzan: Now looking at the geopolitical landscape that we currently have, we have the EU AI Act setting strict standards and shifting US executive orders. How should platforms and brands prepare for this fragmented regulatory environment when deploying AI tools to a global user base? Franklin Graves: It’s a great question. It’s something that is still evolving, I think is fair to say. I would equate it, as I do in the paper that I wrote, to how creators and arguably brands don’t own the platforms that they’re building their communities on. That spawned this concept of de-platforming or going into building your own platform, a decentralized platform of sorts, and owning your community. That gives you that control and takes away the level of instability that can come for creators trying to build a business on a platform they don’t own, they don’t control when certain updates happen, when algorithms change, when tools and functionalities either become available or go away completely. So it’s very similar to what we’ve been experiencing in a regulatory environment where we have geopolitical complexities, for lack of a better term, that can overnight seemingly disrupt the way in which a platform or even a multinational brand is able to connect and reach an audience or continue to leverage the user base that they’ve built. I think TikTok is a great example of that, where it became a national security concern and suddenly it was facing an executive order that required it to be effectively disabled in the US or completely owned and operated by a US entity. All the mechanics and technicalities of whether it’s actually possible and still have a global platform with a global user base is a whole different discussion. But that’s an example of very similar considerations that are now not just a discussion point at the creator level or the individual brand level, but also in a much broader context at a platform level as well. Ken Suzan: Franklin, let’s now shift gears and talk about your article. In your recently published journal article, Upload Complete, which we will have linked in our show notes, you advocate for a shift in terminology from internet creator law, a term used during our first podcast almost a decade ago, to creator economy law. Why is this distinction important and how does it change the way legal practitioners should view the ecosystem of creators, brands, and platforms? Franklin Graves: Oh yes, this is part of the reason why I wanted to write the article: to lay this foundation of understanding. Because at the time I’d written the article, the term creator economy and creator had really not appeared but for maybe once in an actual court decision. And it was kind of focused on influencers and this concept, and it was just not getting it right. And so it was also, as you mentioned, when we first spoke I was even using the term internet creators. And I think that was something that was common at the time. The “internet” portion as a qualifier has since dropped off. And now for purposes of the creator economy, the term creators refers to individuals, it can be small businesses, which is what we’ve seen from a regulatory standpoint, how these small businesses are being impacted by regulations. But essentially creators in the article I pin in the context of intent. What is the intent behind the person or the small business that is posting content, trying to build a community and form a community in a virtual environment? And then that can even spill over into real physical world environments. And so the intent is kind of what I look at. Franklin Graves: And I have a chart in the article that has a diagram showcasing the overlap of what I refer to as “users generating content.” It’s a play on the concept of user-generated content, UGC. Users generating content is that large bucket of anyone posting on a platform of some kind. And within that large bucket, that large circle, are smaller subsets. You have creators, you have brands. Those are really the two buckets you can put people into. Otherwise it’s like your grandmother or your parents posting content on Facebook or Instagram, and those are everyday users of a platform. The distinction to get into that subcategory of being a creator more so has been analyzing the intent behind the posting. Are you posting content to build an audience, to build a community, to eventually have a chance to monetize the following that you’re bringing in or sell services or something like that? Brands are posting for that reason. Creators are maybe posting for that same reason. But even within the creator category, there’s a subcategory of influencers that are trying to sell something, that are trying to build more than just an awareness of who they are, their influence. They are trying to do brand deals, partnership deals, upsells and all that, and start an actual small business aside from just the content itself that they’re creating. So that’s kind of the distinctions that I make in the paper. And that’s why it’s important to understand and lay that foundation, that anyone can post content online, but the intent, the why behind their posting that content, really does ultimately matter, especially when you’re looking at it from a court case or from a regulatory standpoint. Ken Suzan: Now, Franklin, we’re seeing unprecedented geopolitical activity around platform ownership. For example, the US legislation targeting TikTok and Brazil’s recent temporary ban of X. How do these macro-level battles impact the day-to-day livelihood of creators? And how can they legally and operationally protect themselves? Franklin Graves: So the shift that we’re seeing, and I alluded to this earlier in our conversation, is this concept of Web 3. And that term may or may not be really popular anymore, but that’s essentially what we’re looking at: a shift into a federated, decentralized operation of a platform. So instead of one owner, one company, one entity owning and operating the platform, it’s decentralized. Anyone can start up a server, and it’s interoperable, meaning anyone can plug and play and connect to that larger network. And it creates this unified social network experience. Within each operating node of that network, there can be your own decisions around content moderation, your own decisions around the hosting providers you use, where you’re operating out of, the terms and conditions that apply to that. But the flip side is that instead of creators posting and sharing in a closed environment run and controlled by a singular entity, you’re now experiencing a peer-to-peer type operation where your experience can change based on which server, which node, which user you’re engaging with. You might have content that’s acceptable in one area but not acceptable in another, and maybe it just doesn’t even show up in that other area. Franklin Graves: But from a liability standpoint, as creators start to build their own networks and communities, even outside of a concept like the fediverse, it’s even down to creators building their own communities through online courses, subscription membership-based platforms that they run on their own website. There’s open source software out there, even something called Ghost, where you have memberships. And that is a creator or a small business in the creator economy that is now taking on the obligations that would typically fall upon a platform. They need to take into consideration terms and conditions, privacy policies, legal aspects, and regulatory considerations for running a platform, especially in a global world. So it’s a lot of liability that then shifts over to those small businesses and even brands sometimes that are doing the same thing. Whether it is something as simple or complex as content moderation or all the way up to monetizing an audience, this new world where creators can spin up and run a platform all dovetails back to the concept of creators not feeling like they have control in reaching the audience and the community that they’re building on an individual platform. And so this really became more mainstream conversation with TikTok and the issues around it potentially being shut down in the US. That was kind of the mindset shift and eyes opening for many creators, especially within the influencer subset, of realizing: we need to make sure that we have a way to reach the audience we’ve built if the individual platform that we’ve committed to over the last year or three years or so is no longer available. We need a way to continue that relationship outside of that one platform controlling it. Ken Suzan: Franklin, we have a few minutes left and a number of topics. So I’m going to switch gears and talk about a few issues. First, a major emerging topic in your paper is the evolution of protecting kids online. With state-level age-gating laws like the CAADCA and the recent FTC updates to COPPA, how should platforms navigate the significant tension between strict age verification mandates and the privacy and First Amendment rights of their users? Franklin Graves: Man, that is a whole discussion to unravel. It is a consideration that we’re seeing happen again, going back to the geopolitical nature of everything. Countries like Australia and certain countries in Europe and now even individual states in the US are trying to look at ways, and some of them have already put into place minimum age requirements before you can even sign up for an account with a social media platform. One of the things I’d just highlight quickly here is that one of the tensions is around how you verify someone’s age online and still maintain the ability to be at least pseudonymous. How do you still have a level of privacy, autonomy, and protection when it comes to having to provide something like a driver’s license or have parental consent tied and connected to an account managed by a parent in a situation where maybe it’s not appropriate or not beneficial to the child in that manner? But then maybe there are counterbalancing factors that outweigh that. All of that comes down to the technicalities of how it’s actually implemented and maintaining the sense of openness and freedom that we’ve had on the internet to date. And then the other element there is, since a lot of the internet that we think of today is more so through mobile applications, is it something that the mobile operating system providers and app store providers should be thinking about? So whether that’s the Google Play Store or the Apple App Store, where does that initial age verification need to fall? Is it at the platform level? Is it the app store or mobile device management level or something else? Yeah, there’s a lot to discuss there. And a lot of the issues we’re seeing with how the internet is changing in terms of being able to browse a website without disclosing personal information that might not have been required before is largely stemming from a focus on protecting children online. Ken Suzan: It sounds like, Franklin, we could have another episode covering lots of issues connected with that one topic alone. Franklin Graves: I would absolutely agree with that. There’s a lot going on there. And again, it’s different across the world. And so I know you all have a global listener base. And so there’s a lot of nuances to that whole discussion too, that are worth exploring. Ken Suzan: Last question for today’s episode is regarding the right of publicity. With the explosion of AI-generated synthetic media, digital replicas, and voice cloning, the right of publicity is taking center stage. What are the biggest legal risks for brands partnering with influencers right now? And how can creators protect their most valuable asset, their likeness? Franklin Graves: That’s a great question. I think we’re seeing kind of a throwing-spaghetti-against-the-wall-to-see-what-sticks approach right now by a lot of different parties, whether it’s trademark attorneys, whether it’s general entertainment attorneys or whoever. For example, we’ve seen Taylor Swift filing trademarks to protect certain sounds of her voice and phrasing that she uses. It’s a difficult area because in the realm of generative AI with deep fakes and virtual avatars, that is where it gets tricky, because traditional IP laws are just not able to fully cover that spectrum. It’s a piecemeal approach, but even then it doesn’t fully cover it. So for example, I’m based in Tennessee and a couple of years ago we had the Elvis Act that updated our right of publicity law to add voice and to explicitly reference artificial intelligence. And so that’s the kind of effort we’re probably going to continue to see: efforts to develop some framework around protecting what is essentially a privacy right, in a manner that doesn’t restrict generative AI systems from continuing to develop and operate the way they’re operating now, while layering in those protections so that in the US at least a First Amendment right doesn’t necessarily get squashed, and those traditional well-recognized efforts to not overregulate a technology in its early stages are respected. Franklin Graves: And so I think a lot of what we’re seeing is just a need to update laws. The SAG-AFTRA debate and the strikes that happened around maintaining control of your performance and any iterations of that, or building upon that by a media company that might come later, it’s all on the table right now and still being discussed, still being worked out. I think in the short run, a lot of times if it’s in a brand deal, the key question is: if you are using generative AI to enhance in some way the final deliverable for the campaign, who has control over that? Who has final say and sign-off on how that likeness or that digital replica or that person’s voice is represented? And even outside of the brand space, we’ve seen actors like James Earl Jones signing over certain aspects like their voice and allowing it to continue to be used in these manners powered by generative AI as Darth Vader. And I think I saw something that Boy George was even starting up an AI company that allows musicians, the original recording artist, to rerecord new versions of their masters so that they don’t miss out on that revenue. It’s powered by generative AI, by taking their voice now, which is significantly different than it was back in the 80s, and using generative AI to make it sound closer to the original, but all based on their current performance. So I think it’s still an evolving area. And what’s interesting too is on the platform side, we’re seeing the early stages of platforms like Google starting to acknowledge and rely on the license grant contained in their terms of service for YouTube, which grants them broad rights to use the content to run their platform. So all that to be said, it’s still early stages. I’m very interested to see where we go from here in the future, especially from a global perspective as well. Ken Suzan: Franklin, I could spend hours talking to you about this. You’re such a knowledgeable person on these topics. Maybe in a few years, will we connect again and talk further on AI and all the things that are yet to be developed? Franklin Graves: Thank you. Yeah, it doesn’t have to be another decade. Maybe we can cut it to half a decade, given the pace at which technology is going now. Ken Suzan: Sounds good, Franklin. Thanks again for being on the IP Fridays podcast.
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  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 Podcast – Episode 175 29.05.2026 50นาที

  [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 the back door. As a last resort, he has not excluded a judicial review, a procedure that does not simply challenge the substantive decision but holds the Comptroller General of Patents to account for whether the Office is deliberately circumventing the Supreme Court’s direction on the intermediate step. That is, as Dearling put it, “a nuclear option,” but one he would not rule out if the evidence in the file already suggests the Office is in contempt of court. There is also an international dimension. Singapore’s Intellectual Property Office launched a public consultation shortly after the ruling, asking whether Singapore should adopt the Emotional Perception approach into national law. That is British soft power operating in real time within the Commonwealth. G. Three Takeaways for Patent Practitioners At the end of our conversation I asked Bruce Dearling to distill the most important practical points. His first takeaway: make sure the claim contains hardware. This applies not only to UK and European applications but is simply good drafting hygiene. Without hardware in the claim, the application remains exposed. The second takeaway concerns the description. Anyone filing an AI invention needs to explain clearly which function is achieved by which piece of hardware, circuit, or software. Not as boilerplate, but as a complete technical account that describes the real-world effects. Dearling’s experience is that practitioners who write the claim first and fill in the description afterward run into trouble. The third takeaway emerged from the conversation itself: how the EPO assesses inventive step for AI inventions is not a settled question. It is worth following the development of UPC case law and any shifts in EPO practice closely. Anyone advising on AI patent applications today needs to know these arguments. H. Conclusion The UK Supreme Court’s Emotional Perception ruling is not a British footnote. It has declared the Aerotel test dead, introduced the intermediate step that brings non-technical features back into the inventive step analysis, and set off a convergence movement that is already visible at the UPC and still pending at the EPO. For everyone working in AI patent practice, whether in prosecution, examination, or counseling, this ruling is required reading. Rolf Claessen: Our interview guest on IP Fridays podcast is Bruce Dearling. He has been in the IP field and a patent attorney for 36 years and is partner at Hepworth Brown in the UK. Thank you very much for being on the podcast. Bruce Dearling: My pleasure, Rolf. Thank you for inviting me. Rolf Claessen: All right. We just met at the INTA annual meeting in London. And you talked about the UK Supreme Court case where you were involved. And the core questions were whether non-technical features would be considered when assessing inventive step of patents. Can you briefly summarize this case? Bruce Dearling: It’s a bit more than that. It started — I actually wrote the case. And I prosecuted it through the patent office. The patent office rejected the case for being excluded subject matter. So pretty much the excluded subject matter provisions in the UK are nearly identical. They’re as near as practical to the language of the EPC, so those of the European Patent Office — Article 52.2. But again, they apply as such. The actual technology relates to artificial neural networks. And the invention related to a very clever way of what is termed closing the semantic gap at the output of the neural network. So that means that in a neural network, there is always a discrepancy between the output of the neural network in terms of what it’s telling you you should be thinking essentially, and what reality is. So if you can close the semantic gap, then you align the neural network or the artificial intelligence system to better reflect human knowledge or human reactions and human expectations. So that’s really what the invention is about. There’s no point in going into too much detail with it — that’s the way it is. It’s very clever. So the UKIPO rejected this because they said it was essentially a computer program excluded from patentability as such. And they used a decision which is called Aerotel, which has been around since 2006. And that decision has caused considerable consternation and tension between the EPO Technical Boards of Appeal and the UK courts. Aerotel was described as being essentially disingenuous by the EPO Technical Board of Appeal. And the UK courts pushed back and said, you don’t know what you’re talking about. So that’s where it fell apart. So that’s where they rejected it for essentially being a computer program as such, possibly with a bit of business methods thrown in as well. But let’s leave that for the time being. So the case then went to the High Court and at the High Court, we won. The judge said, actually, it’s not a computer program. Neural networks aren’t computers. They’re not programs themselves. There’s more to them than that. And the invention as claimed is not excluded from patentability as such. The UKIPO obviously weren’t very happy about that because they liked their Aerotel case and so they appealed it. And they appealed it on several grounds, including a new one, which was that it was a mathematical method. The Court of Appeal decided that the UKIPO was right and that we were wrong, so we lost the case. So we then went to the Supreme Court. Well, actually, they denied us an ability to go to the Supreme Court. The court said no appeal. We went — actually, no, I think there is a bigger issue here — because we realized, or I realized at that point, that the work that we were doing was much broader than this. It requires real consideration of what an invention is at a fundamental level. So not only exclusions, but how inventive step is applied. And these issues were built into the case from the very beginning. And they sort of — I wouldn’t say crept up on the court as we went through — but they became more and more prominent to the extent that ultimately, when we made an application to the Supreme Court, the Supreme Court went, yeah, we’ve got some issues here. We want to hear the full arguments on why this is not excluded from patentability, why Aerotel is potentially bad and how we more or less try to align ourselves with the European Patent Office. So that’s essentially what happened. And the Supreme Court hearing was last July. It took them the thick end of eight months to come out with a decision, which was issued in early February, at which point the entire legal landscape in the UK changed because they said we were right. The Patent Office doesn’t know what they’re talking about. Aerotel is bad. It’s unsound. That’s what they described it as — unsound law. It needs to be removed and we’re going to harmonize with the European Patent Office. So before I — I’m just going on a bit of a rant here, standing on my soapbox telling you what you already know. But the Aerotel test essentially was — it was a four-step test, past tense. So you firstly had to construe the claim. That’s pretty straightforward. Then you actually had to identify the actual contribution. This is what they said — identify the contribution. Really in this aspect, you’re asking what, as a matter of substance rather than form, the inventor has added to human knowledge. So that’s what they said the contribution was. And then they said, the next step in Aerotel was to ask, well, does that contribution fall solely within the excluded subject matter field or realm? And then they said, well, if you get through that question, then you check the actual contribution or the alleged contribution to see whether it’s technical in nature. So that’s the Aerotel test as it was. And what the Supreme Court in their unanimous final decision said was that Aerotel at best jumbles up the order. It reverses the logical order of the analysis by starting with the contributions and then addressing the Article 52 exclusions. And then finally it goes back to what the technical nature of the invention is about. So they really went, no, we don’t like any of this stuff. It’s bad, it’s stupid, it puts the cart before the horse. So, in the intervening period between finding the case and actually seeing it progress all the way to the Supreme Court, we obviously had the G1/19 decision from the EPO Enlarged Board. And they basically said that they are going to validate any hardware as the approach. And that’s essentially what the UK also went with. The UK Supreme Court said we’re going to say that the threshold of patentability — or the exclusion to patentability — is simply overcome by the inclusion in a claim of any piece of hardware, whether it’s a processor or a piece of memory or whatever. It doesn’t matter. Any hardware makes the invention a technical invention. So it’s a really low threshold to consider. And they then went, well, actually, if we now align and harmonize with the European Patent Office sensibly, then we need to look at how we assess inventive step, which is the other thing that we raised with the Supreme Court. In fact, we probably raised it at other times and in all the other instances as well, but it came to a head at the Supreme Court. So the Supreme Court then also went a bit further and said, well, actually, whilst we do like the global approach to assessing inventive step for all fields of technology — whether it’s chemistry or biotech or electronics or software or AI — we use a test called Pozzoli. So that isn’t problem-solution. We don’t like problem-solution. We think it’s not codified in the European Patent Office. It’s just a mechanism that the EPO has come up with to try to objectively assess inventive step. We don’t particularly think that’s appropriate. We like our approach called Pozzoli. That’s it. So we’re going to say with Pozzoli, however, in order to actually understand — particularly in the context of mixed inventions having technical and non-technical features — it’s necessary for the examiner to undertake the so-called intermediate step, where you have to look at the interactions between features within a claim. The invention is defined by the claim. That’s what the act says. That’s what everyone understands. It’s the invention defined by the claim. So you look at the claim features and then you have to understand the interactions that take place. And even if they are between technical and non-technical features, if they bring about an overall technical effect when you consider the invention as a whole, then your claim should be good and you can assess it for classical inventive step. So that’s really where we’re at. There’s a lot to unpack there already. It’s probably a podcast in its own right, but that’s the positive history of where we’re at. And I can keep going if you wish me to for a second and talk about why I think this is — we’ll just contrast it quickly with the problem-solution approach at the EPO and COMVIK. So for inventions in the computer-implemented field, they use COMVIK and the problem-solution approach. The Supreme Court said, as I said, they don’t like problem-solution. I think the problem-solution issue is that it is also inherently pre-baked with hindsight because you have to look at the invention and then step back and exclude those features which are common. And then you formulate a problem based on the function that the claim achieves. And then you’re asking whether or not it would be obvious for a skilled person to arrive at the claimed invention, having been given that hindsight-developed problem. So COMVIK is not great by any means. And we know from a practical perspective that examiners are only too willing to look at a claim and simply line through features which they believe are non-technical, whereas they don’t actually look at the interaction of those features in the context of the claim as a whole. There is also a decision — very recent one actually, about a year ago — T 1249/22, where the Technical Board of Appeal told the examiners and the examining division, you cannot do this. It’s okay to have a claim directed towards an invention in a non-technical field, as long as the invention is directed to a technical solution of that problem. I think it’s paragraphs 11 and 12 or 10 of that decision that are worth looking at. But they’re saying that in all fields of technology, it doesn’t matter as long as the technical solution is about technology — therefore, you should be able to obtain a patent as long as there is a realistic and appropriate technical effect. Be careful actually, Bruce — I don’t mean technical contribution, I mean technical effect. There’s a reason for that distinction. Rolf Claessen: The non-technical features are nevertheless used to assess inventive step in the UK now after this decision, right? Bruce Dearling: Yes, that is the intermediate step. The decision says you must look at the invention as a whole. It’s the important thing. There are a couple of issues that arise out of this. The first one is that you have to provide context for the invention. The Supreme Court never provided any specific guidance about how we deal with the intermediate step or what the exact test is, which is in some respects fine. It seems to be fairly clear that you just have to engage your gray matter — your neurons — to work out what is going on in the real world. And once you work out what’s going on in the real world, what the benefits are, then you look at whether or not the actual implementation of the invention fundamentally has a technical flavor to it, which is not just coding, not just simple coding, but it does something smarter. There’s a real technical impetus. There’s a technical effect. Now that actually brings me onto something I’ve postulated or said. I think the intermediate step will follow something like what I’ve termed the holistic character test, which essentially is: work out what’s going on in the real world. Then once you’ve worked out what’s actually being achieved, what the benefits are, what the invention’s concerned with, then you ask the question, how am I achieving it technically? And how is there a technical effect? How does the technical effect arise? That brings out a couple of issues. The first one is that it’s actually about the word “contribution” because it depends on how the word is used. So if you look at head note one in COMVIK, it uses the word “contribute” — how the non-technical feature contributes to the invention. So that’s an additive inclusive concept. The UK IPO historically, and arguably at the moment today whilst they’re trying to retrain their 400 examiners — which this has caused them to have to do — their idea of contribution is this backward-looking concept. So technical contribution and technical effect, I think — although we mix them up and interchange them — are distinct. Technical contribution: you’re looking backwards. Technical effect is what you look at when you look forward into what’s going on. So this is subtle — it’s really subtle, but it’s important. And once you realize that you are actually looking for the technical effects, then you’re on much safer ground. It’s much more objective in terms of the assessment. This might be somewhat contentious, because it’s the way I’m looking at this, but I’ve been working on this a long, long time and thinking about it for probably decades, worryingly so. So technical contribution and technical effects are probably not the same, where they are interchangeably used to mean the same thing within existing decisions. Rolf Claessen: And in the beginning you said, now that Aerotel is dead basically, it’s more harmonized with the EPO’s approach. But what I take from the discussion now is that maybe — especially in view of the problem-solution approach — it’s not fully harmonized with the EPO’s approach at the moment, right? Or did the UK Supreme Court get something wrong, or was that a desired outcome from your point of view that this is not so completely harmonized with the EPO? Bruce Dearling: Well, the EPO — the any-hardware solution is fully harmonized, no doubt. So it’s now a question of inventive step under Article 56 or Section 3 of the Act. The EPC nowhere mandates the use of problem-solution. And we know that there are many different ways of actually assessing inventive step, including the concrete elaboration test from last year and problem-of-invention approaches. So there are numerous ways of assessing inventive step. So the UK says, “Pozzoli — we like Pozzoli.” Interestingly, I had a discussion with someone I probably can’t mention. They’re saying that the UK approach may actually be more permissive now. It might even influence how the EPO operates. So they may move away from COMVIK towards more of a Pozzoli approach, which basically says this: You identify the notion of the skilled person — step one. You identify the common general knowledge of that skilled person — step one B. You identify the inventive concept of the claim in question, where you construe it if you can’t work out what it is. You then identify what the differences are. And then you ask the question, is it obvious to the skilled person, given knowledge of the common general knowledge? This is entirely not artificial because, as I said beforehand, when you look at problem-solution, you are formulating a problem by backtracking from what the claimed invention is to a situation where you say, well, these are the common features and I’m going to project a problem to try and solve. Now that is already tainted with hindsight reasoning. It’s not safe, it’s not thoroughly objective. There is an inherent problem with this which sees good inventions cast by the wayside. Although it’s a preferred mechanism, it’s not fully baked. There are situations where examiners are inherently lazy, or they just simply use something like the requirements specification argument, which is just factual. It just demonstrates that they can’t be bothered to actually argue it properly or think about what the invention is. Sorry to any examiners listening to this, but this is just my personal view, that sometimes there are problems. I’m reminded of a quote from an EPI hearing I was at a long time ago, where the Legal Board of Appeal member said: “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.” Now that one has stayed with me because you think — did someone just say that? And the answer is yes, they did. But it just goes to show that there is some tension between the TBA and the examining divisions, and they don’t always get it right. Rolf Claessen: So there might be a small difference now between the UKIPO’s future approach of assessing inventive step and the EPO? Bruce Dearling: Yeah, it might do. But the other interesting thing here — and thank you for pointing this out, I hadn’t entirely caught up with it, I’ve been traveling beforehand and I missed some of the UPC case law. So the UPC case law — in, was it — yeah, we talked about that. Rolf Claessen: Yeah. There was a decision in April, Abbott versus Sinocare. Bruce Dearling: Yeah, 901 of 2025. So a Court of Appeal decision from the UPC. It was APP_000000901, I believe, 2025. Decision 17th of April, hearing 27th of March. The UPC is not bound by — it’s a court. The European Patent Office is not a court, it’s an agency that administers and looks after the administrative rule of law. So the fact that this decision came out from the UK Supreme Court in February, and you see almost identical language used in the UPC decision, suggests that there is some alignment here, or some convergence in thought. Now, whilst the UPC decision also references G1/19 and uses problem-solution, there is enough — you’ve got to bear in mind that high-level courts do look at each other’s decisions. And this is really a question of influence and the desire to converge. So the fact that they’ve done this at this time is quite interesting. Again, I can’t quote someone directly from the EPO, although I would love to. They were saying — at a very high level — and they used the words “converge UPC practice towards UK Supreme Court practice on interpretation of the law.” So this may actually be happening in real time. Again, it would be wrong to actually refer to anyone by name, but it’s an observation that when I looked at the case, I can see why this is going ahead. And I can see why the judiciaries — they want to maintain independent judicial controls. They won’t reference the UK Supreme Court decision, not least because we’re not in the UPC. But if you look at the arguments in sections 106 and 107 of the UK Supreme Court’s Emotional Perception decision and head note one, you go — wow, this is very close. Rolf Claessen: Very close and nearly identical wording. Yeah. And the UPC also now uses non-technical features for assessing inventive step. Is that a problem for the EPO that has historically been aggressive in throwing out non-technical features for inventive step analysis? Bruce Dearling: Well, I think they really need to get to the situation — I don’t know — this holistic character test that I’m sort of proposing, where you really have to think about what the invention is achieving, and then look at how it’s technically being achieved. And then if you look at that again in the context of that other decision I mentioned — T 1249/22 — it says something like, in the case of an invention that amounts to a technical implementation of a non-technical method, provided the non-technical method does not contribute to the technical character of the invention. The board validated the approach of identifying the non-technical method and then goes through and says it’s patentable. There are decisions like this which suggest that examining divisions have to give it a bit more thought, because the Technical Board will realize that to satisfy the WTO requirements — which pretty much everyone is bound by — Article 27.1 TRIPS, which requires that you protect all fields of technology. And that means whether it’s data processing or business methods, because business methods can be patentable so long as they are implemented on a technical basis. That essentially seems to be what T 1249/22 is saying, although it doesn’t explicitly say “allowing business methods.” The exclusion is only “as such.” So does this decision, in combination with the Supreme Court case and the movement of the UPC, say: well, actually, let’s look at this properly? It requires objective assessments, not just superficial “let’s strike through that feature because I don’t like it, it looks non-technical.” Rolf Claessen: So are you hopeful that the EPO is adjusting and will reshape their case law in view of the UPC decision and the UK Supreme Court decision? Bruce Dearling: It’s a bit unfortunate that the corresponding UK case at the EPO was dropped by the applicants, because it was heading towards an examination hearing at the examining division. It would have gone to the TBA, and I’m sure it would then have gone from the TBA to the Enlarged Board. I’m pretty sure that’s the case. There is another case from the same client which will probably argue the same thing because the specs are almost identical. It’s just lagged in time. So is it going to change? I hope so, because I think the EPO have got it wrong — more often than not in this field. Well, maybe not more often than not — they get it wrong more times than they should do. Would I like to see it changed? Yes, I would, because I want the examiners to actually think about the technology as opposed to just — oh, it’s not — I don’t want to engage the gray matter. That serves no one. That doesn’t serve technology. That doesn’t serve industry. These patent rights are there for a reason. They are property rights. I’m referring to the award of the 2025 Nobel Prize for Economics — they are a core driver for society’s development. So the 2025 Nobel Prize was for something called creative destruction — the replacement of old technology with new — and it’s based on the patent paradigm. So all this stuff is coming to a head now. It’s just a question of how quickly the EPO actually catch up, and maybe they have something to catch up on. It’s just understanding that the examiners have to start to think. As I said, we’ve got the issues at the UKIPO where they’re going to have to retrain 400 examiners. Rolf Claessen: Yeah, right. Bruce Dearling: The Emotional Perception case wasn’t granted by the Supreme Court. They referred it back to the patent office for consideration under the intermediate step. So the patent office produced a response that I would describe as — I’d say arguably — not well reasoned, which I’ve filed the response to, which basically says you don’t really know what you’re talking about. What really worries me a bit is that I think they’re trying to introduce the Aerotel case through the back door. It’s backsliding. It’s a mechanism for trying to apply it in a different way or a different context, which would be wrong. I think they believe that the applicant will appeal this if they get a bad decision — they will appeal it back to the courts again via the High Court, Court of Appeal, Supreme Court route. I say maybe not. I say maybe the client will file what they call a judicial review, which is a nuclear option. That’s when you actually hold the Comptroller General of Patents to account and get full discovery of whether or not there’s internal documentation showing that they are deliberately circumventing the direction of the Supreme Court on the intermediate step. This is basically holding them to account and saying: if you’re not applying the intermediate step appropriately, you are in contempt of the law. So judicial review is a really serious thing to do, but it’s certainly something I would not exclude from consideration. We’ll see what happens. It’s not saying we’re just going to go through the courts and make them decide on this. We’re going to say you’re wrong. And there’s already enough evidence in the files to suggest that they are probably in contempt of court and they’re not applying the intermediate step appropriately. They may not know any better at the moment — they need to be guided — but the consequences for them are potentially severe. Rolf Claessen: I have another question for you. You were the instructing attorney — do you think the decision was perfect? What argument that you made was the most underappreciated by the court? And where do you think the judgment got it wrong, or was it all perfect? Bruce Dearling: No, it got 90% or 95% correct. The intermediate step is right. That’s the most important thing in the decision — it’s the intermediate step. The any-hardware thing — that’s logical, that makes some sense — but if people say “if the any-hardware rule is the important bit,” no it isn’t. It’s the intermediate step. That’s the important thing. Where do they go wrong? I think they went wrong because — and you’ve got to bear in mind that unlike German courts, I’ve got to be careful about how I express this — generally, as I understand it, and correct me if I’m wrong, but the judiciary in Germany on patent cases are generally more technically able. They’re normally technically qualified. I look at the Supreme Court justices and the Court of Appeal justices — we had one who was a humanities undergrad, one was a chemist. Good luck with trying to argue complex artificial neural network technologies, which are difficult even for me to understand. And I’ve been working in the field. They’re hard to understand. They require real understanding, real appreciation. They could say, well, actually we don’t need to look at the technology — but frankly, if you’re looking at the statutes and exclusions to patentability and asking what a computer program is, then you need to understand what these technical terms really are. And if you can’t, then the judgment is potentially flawed. Their finding that the neural network is a computer program is, I think, technically obtuse. You know that the Singaporean government — the Intellectual Property Office of Singapore — released about six weeks ago a consultation note to the Singaporean profession and population, asking: is the Emotional Perception case right, and do we need to adopt it into Singaporean national law? So this is direct soft power from the UK Supreme Court changing Commonwealth legislation and statutes. We’ll see what happens. But from what I’ve seen of a draft response from the attorneys, they’re saying essentially: we agree any hardware is right, the intermediate step is right. The assessment of the neural network as a computer program is wrong, or it just doesn’t make any sense. And I’ve made the same comments before in SIPA, in the relevant round in March. There’s a disconnect. I mean, it’s like they equate a computer program with being able to be run on an analog computer. Now, an analog computer has no central processing unit. An analog computer just has resistors and transistors and capacitors. So if they’re saying that an analog computer can run a program — that’s essentially what they’re saying in part of the judgment. Where is the program in an analog computer? And if they’re saying it’s in the values of the resistors and the capacitors, then that has implications for any circuit we’ve got — it’s potentially a computer program — which is just madness, because it doesn’t sit well with the legislation and decisions we’ve looked at over the last 50 years. This is a real problem. It may be a storm in a teacup because you can overcome the objections by having any hardware, but it’s an argument they shouldn’t have been making. It seems to be abstract legal argumentation which has little credibility in my personal view, although it’s now law. It may be that someone can take that, have an argument with the Supreme Court, get them to fix this. The other thing is the EPO looks at a neural network as a mathematical method, and the UK now says it’s a computer program. Neither is right. The EPO is wrong as well. If you look at the actual decision which they regularly quote — the Vicom case — if you actually read the claim and look at the case, you see that it doesn’t make a huge amount of sense. A neural network has applied mathematics in it. It can be based on a computer program because it’s required to set up the learning objectives and the loss function. Mathematical processes — it tweaks the weighting factors of neurons over the course of the training epochs. But at the end of the day, if the function performed by the neural network is new and it’s directed towards a technical implementation which is technically relevant, then it shouldn’t fail for being a mathematical method. And I think the EPO guidelines actually say that. Even recommendations — the UK court said that a recommendation is not technical. Well, actually it is, because it’s data processing, and you’ve got to work out how does the data processing work to provide an improved recommendation? Again, it goes back to the T 1249/22 decision. There’s a whole raft of these things which are left not entirely resolved. There’s enough here to keep someone busy for a few more years. Rolf Claessen: Right. So I have a question for you now that we’ve talked about the decision of the UK Supreme Court and the UPC — the Unified Patent Court — with very, very similar wording. What do you say are the three most important takeaways for patent practitioners in the US, in Europe, in the UK, before the EPO? Are there any things that you really want patent practitioners to take away from our discussion here? Bruce Dearling: Yeah, okay. So first: make sure the claim has some structure in it. You need to have any hardware. That’s number one — in terms of claim drafting. In terms of the description, you really have to understand what the invention is about. And you’ve got to make sure that you explain what function is achieved by what piece of hardware, kit or software. And if you do that — don’t nickel-and-dime this by writing the claim first — I would suggest that you run into problems. You need to understand what the invention is about. And you need to make sure that the description is complete and full to describe the functionality and the effects that are achieved in the real world. And if you can do that, then you’re on a much sounder basis — much, much stronger. There’s a much stronger foundation for this. So that’s two things. Is there a third one? That’s me being a bit cheeky, but I suppose I know what’s going on. Rolf Claessen: Yeah, but maybe the third takeaway is that maybe the EPO will rethink the way — at least how AI inventions are assessed for inventive step. Bruce Dearling: Well, as I said to you before, it could be that that’s the case. I don’t want to repeat myself again. The word “permissive” was used in a conversation I had with respect to the UK Supreme Court approach. COMVIK fundamentally still breaks with me and has done for years, because the way it’s set up and the way it’s applied distorts fundamentally what the invention is about. And until such time as that distortion is removed, there is a problem of objectivity versus subjectivity. And I think that’s really what the EPO has to grapple with. It’s not an easy thing to deal with, but maybe there are things going on. Bruce Dearling: It’s not an easy thing to deal with. I don’t know who’s going to argue it. It would have been useful for me to still have the original case up and running at the EPO because these arguments would have been fleshed out. I’m pretty sure they would have been referred to the Enlarged Board. We would have got it resolved. So it’s whether or not I can now work this into the existing case to try and get the examining division to — well, they will refuse, I suspect. And then it’ll go to the TBA. And then the TBA will have to look at this, hopefully with the referrals to the Enlarged Board. And then that fixes the problem on a national and international basis. Rolf Claessen: Yeah. Let’s see. [Laughs] Bruce Dearling: No, we don’t know. I mean, you might have a different view. What do you think? Do you think COMVIK is fundamentally right or fundamentally wrong? Rolf Claessen: Well, I’m not so much into AI inventions. I’m a chemist and I usually deal with chemistry inventions. But from the discussion that we had, I think that the EPO might rethink their position. I don’t know. Let’s see. Let’s hope so. Bruce Dearling: Well, they liked it. They liked problem-solution. It’s been with us for 25 years. It suggests that it’s a compromise. It’s not mandated by the European Patent Convention — that’s the point. It’s something they think works. And these things only work until such time as someone comes along and says, actually, you’re wrong, and this is the reason. Rolf Claessen: Let’s see if they choose a different route at least for AI inventions. So Bruce, thank you very much for your insight and for talking about the case that you were involved in with the UK Supreme Court. Where could people reach you if they have more questions about this field — basically patents, AI protection in the UK and Europe — and if they want to ask you more questions about this case? Bruce Dearling: Sure. Through the Hepworth Brown website or my LinkedIn profile, I suppose. The Hepworth Brown website has an email link. I’m trying to post things on it as well to try and provide a bit more context. But if people have fundamental questions on this stuff, then I’m happy to try and answer them. I suppose that I can be considered to be quite knowledgeable in the area. Rolf Claessen: Right. Certainly more than I am. [Laughing] Bruce Dearling: So I was fortunate. As a consequence of the work I’m doing, I was appointed last year to the WIPO Standing Committee on Patents and Privacy. That was discussed for the issues of where WIPO goes and what the direction of the problems are that we have in high-tech areas. So there seems to be some degree of understanding that I might know what I’m talking about. I think I probably do. Rolf Claessen: Thank you, Bruce. Thank you very much for being on IP Fridays. Bruce Dearling: My pleasure. Thank you very much, Rolf.
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  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 01.05.2026 34นาที

  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 legal matters, including privacy and data security, intellectual property, artificial intelligence, corporate transactions, software, and internet law. His deep understanding of privacy and technology law enables him to guide clients through rapidly evolving regulatory and operational challenges. Welcome Brian to the IP Fridays podcast. Brian McGinnis: Hey, thanks Ken. I appreciate it. Great to be here and thanks for having me. Ken Suzan: Excellent. Brian, the C-suite tends to treat data privacy as a compliance tax, something to hand off to legal and forget about. But when you see how companies actually get into serious trouble, what’s really going on? Brian McGinnis: Yeah, well, it’s a great place to start Ken and looking forward to the conversation today covering some of these privacy issues and AI issues, which I found in my own practice is really bled into the straight privacy stuff. Companies can’t really handle these things in a silo anymore. It’s really about managing and coming together as a coherent program for governance for the organization. I think if you do that right, the good news is we can become revenue generators and show growth for the company and not just compliance centers and a compliance tax. But I think the core problem that we face in working with most companies is that a lot of companies still treat their data as invisible, costless. They don’t treat it, in other words, like they would a patent portfolio or trademark or other IP portfolio. It’s just not managed as an asset in the ways that we’ve seen more sophistication around IP. And it really should be. Data is either a managed asset for the company or it’s an unmanaged liability. There’s really not an in between. And so for those companies that haven’t gotten their arms around all this data and what can be done with it, I think they’re really missing an opportunity. Having an understanding of what data the organization is collecting, how it’s being used, and having the proper governance around it really unlocks a lot of opportunity for use of that data in new ways — ways that can drive revenue and growth for the company. So I approach privacy not just about compliance, not just about avoiding penalties or doing it because some law out there says that we have to do it. It’s really about knowing and controlling one of the company’s core assets. And if you’re not doing that, you’ve got unmanaged data that you’re not getting value out of and that potentially could be a huge liability for the company. Managed well, it really supports trust, efficiency, and growth of the organization. Otherwise, I think it’s a missed opportunity. Ken Suzan: Yes, well said. Now let’s talk about state laws. With 20-plus state privacy laws now in effect, how should companies build a program that actually works across the board without starting over every time a new state law kicks in? Brian McGinnis: Yeah, so the first answer is don’t build 20 separate programs. This really goes back to having a comprehensive, sophisticated, well thought out program that really takes into account not only the 20 state laws, but obviously we’ve got international exposure with laws like GDPR and upcoming privacy laws internationally. Most of the larger economies in the world have some form of laws around privacy and AI. So you can’t really anymore build programs that account for the one, two, three, four, five different laws that in the past we had experience with — where you could just treat California as its own thing, treat New York as something else, and treat Europe as something else. The laws and the pace of these have really forced companies into having comprehensive programs. I don’t expect to see fewer laws. You’re only looking at potentially additional state laws, additional federal laws here in the US, and then certainly additional laws throughout the world. So a lot of the strategy these days is not only where are we today with these laws, but how do we set up our governance program in a way that really cuts to the core of the purpose and intent behind these laws so that we can be better prepared when new laws come about in the future. Historically, at least in the US, most companies just haven’t had laws that force them into compliance postures. As these laws have started to come along, a lot of companies have been playing from behind and saying, oh, the California Consumer Privacy Act, I just read about it and it goes into effect next week — let’s throw something together and call that our compliance program. We’ve now got years of these laws being in place, CCPA came into effect in 2020, and what we’re seeing much more of are companies looking to get more sophisticated in their programs and stop feeling like they’re always rushing to catch up. The goal is to level up their program, going from level one — constantly playing from behind — to level two and then level three, so that they really feel like they’re on top of it and have a sophisticated program that not only accounts for all the various privacy requirements that come at them, but also positions them to take advantage of the data and all the things that come along with having a good governance program. Ken Suzan: Brian, there’s an explosion of litigation targeting something most companies barely think about — the tracking tools baked into their own websites: pixels, session replay tools, analytics scripts, chat widgets, the list goes on and on. What’s happening, Brian, and what should companies do? Brian McGinnis: Yeah, and I think a lot of companies — the executives, the business teams — don’t even realize a lot of these tools are on their sites. IT deployed them years ago, the web team deployed them, marketing teams are constantly using them and certainly have a good understanding of it. But in a lot of cases, legal has never touched them and has no idea what’s happening on the website. We also see a lot of cases of companies who, even if they’re generally aware these tools are in use, aren’t aware what other teams are putting on the site or what those pieces of technology are tracking. And that gap can be really expensive. What we’re seeing right now — and this has been a trend for a number of months now and is really continuing to pick up steam — is a series of what I call gotcha lawsuits, where you have some enterprising plaintiffs’ counsel who have taken a look at some 1970s-era telephone wiretapping laws, including a law called CIPA, the California Invasion of Privacy Act, passed in the 70s with the idea that you shouldn’t be able to wiretap people’s telephone conversations. They’ve taken that and applied that theory to the internet. The way it works is: if a website has some sort of cookie, pixel, or other tracking technology on it that collects personal information about an individual — and that can be as simple as an IP address and device ID — and if that collection occurs as soon as the individual shows up at the website, prior to them being able to have notice provided to them or opt in and consent to that collection, then the theory under these lawsuits is that it constitutes wiretapping. We see a lot of this with the Meta pixel, with LinkedIn pixels, and the like. What they’re doing is effectively showing up and suing, threatening to sue, trying to take you to arbitration, depending upon what’s included in the company’s existing privacy notice. If you don’t have a cookie banner, if you don’t have a cookie notice, if you’re not getting opt-in on these things, they’re leaning on those failures and effectively trying to force you into a position where you are forced to make a settlement. Because the cost to litigate one of these to their conclusion would be expensive, whereas a lot of these cases will settle for $10,000 to $15,000 somewhere in that range. They’ve got technology crawling the internet looking for websites that don’t have these risks covered, sending demand letters and then collecting settlements, $10,000 to $20,000 at a time. It’s been very profitable for them and a very dangerous thing for our clients. And it’s a bit unusual because you can be fully compliant with the statutory privacy laws that require notification of the use of tracking technologies and cookies and banners — and still be subject to these lawsuits because of the wiretapping arguments being made. The timing wherein the data is collected from the individual could still subject you to these lawsuits. So it’s a tricky problem, one that I hate seeing companies get hit with and one that we spend a lot of time helping companies avoid. Ken Suzan: Yes, let’s talk about contracts, Brian, because I know you work with contracts probably on a daily basis. A lot of data risk lives inside vendor and technology agreements — the contracts companies sign with marketing platforms, analytics providers, cloud infrastructure, and SaaS tools. What should those agreements actually contain? Brian McGinnis: Yeah, so there’s quite a lot of things. You’ve got a world where marketing is constantly under pressure to learn more about their customers. The way they can do that is through any number of different tools and data gathering techniques, and we have all this technology available to help marketing and sales do better at their jobs. But we, at least in this country, got to a position where people really felt like they lost control of their information and their data. And so these privacy laws came along and really started to provide more rights to individuals — to have an understanding of what data exists within various companies that they do business with, who they’re sharing it with, trading it with, selling it to for advertising purposes; to have the right to opt out; the right to delete their information. Not checking through the agreements by which these teams are implementing these tools is a huge issue for companies. As part of an overall compliance program, having some kind of process where people who are aware of the growing numbers of privacy laws are reviewing these marketing contracts to make sure they are aligned with that program and aligned with those laws is absolutely critical. To talk about IP, given the IP Fridays audience: it’s kind of the equivalent of having really bad IP licenses. In other words, you own and control this information and data, and you need to control what the other side can do with one of your most valuable assets — or you’ve effectively given it away. So thinking about it in that way could be useful. In terms of more specifics: a big one is ownership of the data. The agreement itself may or may not have anything that addresses data. If there’s personal information involved, you probably need what we call a data processing agreement or addendum — a DPA — that specifically controls what that third party is able to do with that data, how they’re able to use it, whether they’re able to share it, whether they’re able to get value out of it on their own, or if they’re only allowed to be what we call a service provider, just providing services to the business that hired them. There needs to be explicit prohibition on retaining, using, and disclosing personal information for any purpose other than performing the exact services in the contract. Whether or not they’re permitted to sell or share data under CCPA terms is another key point. Certification that the provider will comply with any restrictions and security requirements you have on your data, and making sure those obligations flow down to any sub-processors they might use. You hire Company A, but Company A works with Company B and C to provide parts of their service. You’re effectively responsible for the protection of personal information throughout its lifecycle. A couple of other key provisions: breach notification triggers and timeline. It’s very possible under a lot of agreements that one of your vendors can suffer the world’s worst hacker breach and have no legal obligation to tell the company that hired them about it — unless there’s personal information involved. State data breach laws apply to personal information, not to other types of sensitive business information. Unless you have a contract that explicitly requires notification, there’s a good chance that vendor may not want to disclose it. And then other things like audit rights and deletion obligations go in there as well. Ken Suzan: Certainly a lot to cover. Let’s talk about privacy laws and consumer rights. Privacy laws give consumers real rights — to access their data, correct it, delete it, and opt out of how it’s being used. Most companies have a process for this on paper. What does it actually take to get it right, and what happens when it breaks down? Brian McGinnis: Yeah, it takes pre-planning. It takes a process. Some companies receive many more of these requests than others — some B2B companies receive none or a couple per year, while companies heavily involved in marketing to consumers might receive tens or hundreds a day. To be able to respond to these effectively and efficiently requires some forethought. It requires policy and procedure internally to be set up, and it requires the education of the team. Some of the common ways we see this go wrong: staff isn’t trained to know the difference between what we call a DSR — data subject request — versus a regular customer service inquiry. Maybe somebody submits what would be construed by law to be a deletion request and you just put it into your normal customer service response flow — and then you’re potentially missing timelines and the like. There also need to be systems in place to respond in accordance with the individual’s rights. Somebody submits a request saying, you have my information — what information do you have about me? Can your company determine that right now? Can you look through all your systems and down the line to all the processors and sub-processors you’ve worked with and hired, and identify what information you have about that individual? Most companies, until they engage in a governance program and data mapping, are at a real disadvantage to be able to do that. Why is that a problem? Because two weeks from now your company could be sending emails to the individual who just told you to delete their data, and they get really upset. That’s when they go and complain to regulators or start class action lawsuits. The lack of planning can be really, really expensive for a lot of companies. Making sure you’ve got some kind of process to understand what’s coming in, that the people receiving those requests know the difference between a regular customer service request and a data subject request, and that it gets to the appropriate parties for action — all of that is really, really key. Another one that we’re seeing pop up is what we call GPC, or Global Privacy Controls. It used to be that people would say “do not track” in their browser and most companies would ignore those signals. Now we’ve got advancements in law and browser technology where the browser you’re using to visit a company’s website sends a signal saying, opt me out of this. Regulators and courts are construing those as deletion requests, as opt-out requests that companies are now required to respond to. If your company hasn’t gone through an exercise to understand that, and is probably receiving GPC opt-out requests on a daily basis without acting on them, there’s some exposure there. At the end of the day, a lot of this really is about getting the appropriate people from across the organization — really each department — around a table, figuring out what data you collect, how you use it, who you share it with, where it comes from. That starts the process of your data map. Then you set about mapping that to the various legal requirements and figuring out how to respond, how to make it easy for people to exercise their rights so they’re not complaining, not suing, not going to regulators. Letting these squeaky wheels out of the process — the ones who don’t want you to be processing their information any longer — is really key. Ken Suzan: Let’s switch gears a bit and talk about AI. I know we’re hearing about it every day. Generative AI tools are now embedded in how companies work — contract review, customer service, content creation, internal search. Before employees start using these tools with customer data, confidential business information, or proprietary content, what has to be in place first? Brian McGinnis: Yeah. I think we’re long past the days when companies provided individuals access to corporate technology — computers, devices, and the like — without having some kind of acceptable use policy that governs that. We don’t want you downloading stuff that could harm our network or create security issues. We don’t want you using our technology in certain ways, whether that’s a BYOD policy or just general use of company internet or company devices. An AI acceptable use policy is really a continuation of those. Every company needs to have an AI acceptable use policy. Period. In my opinion, things like that are as important as the fire escape policy out in the hallways for these companies. I can tell you with absolute certainty: if your organization has not provided rules to your employees and personnel about the use of AI, what they can and can’t use — or if you’ve said you can’t use any AI — the personnel is still using AI. They’re just not using any approved tools. They’re probably using their own private tools that they subscribe to, or even worse, tools they don’t pay for, in which case they’re putting company information into a wide open public model. The more companies can do to think through this ahead of time, reduce it to policy, and then train and educate people on that company’s particular policy, the better. You need to make it easier for people to comply than not comply. An acceptable use policy should talk about: here’s how we can and can’t use it, here’s the data that should and should not go into the system, here’s some proper uses of AI, here’s some data that’s on the fringe that we need to keep out — more sensitive information, proprietary information, etc. Making sure you’re funneling and educating people about the difference between closed systems and open systems. In other words, this is a tool that only looks at our organization, only uses the data within a certain box, and is not publicly available — the AI system is not training on our data. You have more leeway to put more sensitive information into those types of systems than you do with open systems which potentially lose control of your data. It’s almost like a patent consideration in terms of keeping information secret. If something potentially has some patentability that you want to seek to file in the future, you can’t just go out and post it publicly and use public search engines and all this other stuff at the risk of exposing it. Similar concepts here — really getting a handle and control over what tools people can use and providing some education to them about how the company wants to think about what’s acceptable and what’s not in those uses is really the key starting point. Ken Suzan: Very useful information. Indeed, we’re coming towards the end of today’s episode. One final question for you, Brian. Where do you think we’ll be two years from now in this developing field, and how best for companies to stay ahead of the curve? Brian McGinnis: Yeah, this kind of takes us full circle, Ken. I think it’s kind of back to the beginning comments about the privacy space — and we’ve only got more of these laws coming. It’s still a developing field. We’re still really in the early days of enforcement. I mean, GDPR has been around since 2018, CCPA in the US really kicked us off in about 2020, and so there’s been a settling-in period as companies adjust and get used to having these laws and get compliance programs in place at various levels — from not at all prepared to highly sophisticated. We’re still pretty early on in terms of enforcement of these things. We’re already starting to see enforcement of more egregious violations of these various laws, and we’ll only continue to see more enforcement as the laws exist currently and as they continue to come along. The days of not having to pay attention to this are kind of over. And I always tell clients: if you’re going to have to do these things, you’re going to have to be compliant — you might as well get credit for it. By which I mean, let’s put all the policies in place, let’s do all the compliance activities, let’s have a sophisticated governance program, but then let’s also use that as a sales tool, as a way to help grow the company, as a way to sell new products and gain trust and earn trust with our customers — so that they know when they’re doing business with us, or when they’re giving us information, or when they’re using our AI tool, that we respect that and are going to take care of their information and have the structure in place internally to be able to do that. With respect to AI, what I’m seeing is very similar to what we have seen with the growth of privacy law — again led by Europe, with the EU AI Act in this case. Now you’ve got a handful of states in the US that already have AI laws, and others that are interested in continuing to roll those out. There’s friction with the federal government around whether there’s going to be a comprehensive law there. Like the privacy space, you’ve got varying factions — some of which want to develop really quickly with very little guardrails, others which say we’re threatening the future of humanity if we don’t get those guardrails in place. I think ultimately, at least in the US, we’re going to end up with another patchwork of AI laws for the foreseeable future that we’ll have to navigate. So really having a company position, a company philosophy of how do we handle all these various laws, how do we treat people’s data, how do we get our arms around it, how do we respond to whatever legal rights they currently have, and what principles do we put in place so that we can adapt for the future — and then, once we’ve done those things, how do we actually get value out of this and move the business forward. So it’s not a compliance tax, but a benefit to the business. That’s the end goal here, and I think the North Star for us. Ken Suzan: Fantastic, Brian. This has certainly been a very comprehensive interview. Really appreciate you taking the time to talk about it with us here on the IP Fridays podcast. Brian McGinnis: Happy to do it, Ken. Thanks for asking me and good to see you. Thank you.
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  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 – Episode 173 27.03.2026 25นาที

  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, responsible producers. Finally, strong enforcement protects the integrity of the IP system and the trademarks that drive investment, innovation, and growth. It is important to combat the production, sale, and demand for counterfeit goods. At INTA, our anti-counterfeiting priorities focus on customs and border measures, criminal enforcement, online counterfeiting, and consumer education. Our Anti-Counterfeiting Committee leads initiatives to address the production and sale of fakes by monitoring worldwide developments in treaties and legislation and proposing policy recommendations to the board. We also partner with stakeholders to promote cooperation across agencies and borders. Additionally, the Unreal Campaign Committee addresses the demand for counterfeit goods by educating young consumers ages 14 to 23 about the importance of brands and the dangers of fakes. I remember being that age and wanting low-priced goods that looked good, but now I realize I probably wasn’t always getting genuine products. Rolf Claessen: Yes, that helps me explain to friends who buy fake clothes on holiday in Turkey and don’t realize the harm they are doing. You’re also on the presidential task force for unifying IP protection and enforcement strategy. Can you tell us more about who is part of this task force and what the agenda is? Deborah A. Hampton: When I was nominated to become an officer, I immediately wondered what my presidential task force topic would be and what I would wear for the opening ceremonies. The 2026 task force is titled “Unifying Intellectual Property Protection and Enforcement Strategy”. The goal is to eliminate value leakage and risk caused by fragmented approaches to IP protection. We want to deliver a unified global operating model that aligns strategy and enforcement, allowing organizations to work smarter and quantify their impact across all jurisdictions. Many organizations, including my own, currently operate in disconnected silos that sometimes work at cross purposes. The challenge is to maintain internal coordination across all intangible-related aspects. We have many stakeholders—business, security, cybersecurity, outside counsel, customers, the judiciary, and IPOs—all striving for the same goal, but the road we take is not always unified. I hope to build a strong cross-functional partnership focused on protecting all forms of IP, including patents and designs, not just brands. Rolf Claessen: Right, IP includes patents and designs and everything. Most importantly, you are this year’s INTA president. What is your agenda for the year and what do you want people in the field to realize? Deborah A. Hampton: As president, I chair the board and steward our strategy and governance. I am also an ambassador, representing INTA globally to IPOs and government officials. My agenda has three pillars. First is the 2026–2029 Strategic Plan, which is the roadmap for our future. Second is my Presidential Task Force on unifying IP strategies. Third is volunteer mobilization; with a new committee structure in 2026, I want to energize our volunteers and recognize their contributions. I want people in the field to prioritize mentorship and professional development for the next generation. We need to ensure young practitioners are prepared to lead. I also want them to embrace the unified approach to IP protection we are advocating. Rolf Claessen: That’s a powerful vision. Thank you so much for sharing your insights and for the work you’re doing with INTA. Deborah A. Hampton: Thank you again for the opportunity. I really enjoyed the interview
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  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 – IP Fridays Podcast – Episode 172 27.02.2026 39นาที

  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 creation. Mark is slightly more conservative on the percentage, but adds an important nuance: the market will likely stratify. Low-cost, high-volume content may become saturated with AI, while premium segments may emphasize “human-made” as a differentiator—especially if disclosure norms become standard. Bottom line for business leaders and creators This interview lands on a pragmatic conclusion: AI will change how content is made at scale, and the competitive edge will go to teams that combine creative taste, operational discipline, and legal/ethical governance. If you’re building, commissioning, or distributing content, the questions you can’t dodge anymore are: What’s the provenance of the tools and data you rely on? Who is responsible when output harms, infringes, or misleads? What rights can you actually claim in AI-assisted work? Do your contracts and disclosures match the new reality? Ken Suzan: Thank you, Rolf. We have two returning guests to the IP Friday’s podcast. Joining me today is Jeanine Wright and Mark Stignani. Our topic for discussion, how is AI transforming the media and entertainment industries today? We look at the issues from differing perspectives. A bit about our guests, Jeanine Wright is a seasoned board member, CEO, global COO and CFO. She’s led organizations from startup to a $475 million plus revenue subsidiary of a public company. She excels in growth strategy, adopting innovative technologies, scaling operations and financial management. Jeanine is a media and entertainment attorney and trial litigator turned technologist and qualified financial expert. She is the co-founder and CEO of Inception Point AI, a growing company that is paving new ground with AI-generated personalities and content through developing technology and story. Mark Stignani is a partner with Barnes & Thornburg LLP and is based in Minneapolis, Minnesota. He is the chair of the data analytics department with a particular emphasis on artificial intelligence, machine learning, cryptocurrency and ESG. Mark combines the power of artificial intelligence and machine learning with his skills as a corporate and IP counsel to deliver unparalleled insights and strategies to his clients. Welcome, Jeanine and Mark to the IP Friday’s podcast. Jeanine Wright: Thank you. Thank you. Thank you so much for having me and fun to be back. It feels nostalgic to be here. Ken Suzan: That’s right. And you both were on the program. So it’s fantastic that you’re both back again. So our format, I’m going to ask a question to Jeanine and or Mark and sometimes to both of you. So that’s going to be how we proceed. Let’s jump right in. Jeanine, your company creates AI-generated actors. For listeners who may not be familiar, can you briefly explain what that means and what’s now possible that wasn’t even two years ago? Jeanine Wright: Sure. Yeah, we are creating AI-generated personalities. So new characters, new personalities from scratch. We design who these personalities are and will be, how they will evolve. So we give them complex backstories. We give them hopes and dreams and aspirations. We every aspect of them, their families, how they’re going to evolve. And in the same way that, say, you know, Disney designs the character for its next animated feature or, you know, an electronic arts designs a character for its next major video game. We are doing that for these personalities and then we are launching them into the world as podcast hosts, content creators on social platforms like YouTube, Instagram and TikTok. And even in the future, you know, actors in feature length films, musicians, etc. Ken Suzan: Very fascinating. Mark, from your practice, what’s the single biggest legal question or dispute you’re seeing clients wrestle with when it comes to AI and media creation? Mark Stignani: Well, I think that, you know, it’s not just one thing, it’s like four things. But most of them tend to be kind of the origin story of AI data or AI tools that they use because, you know, but for the use of AI tools trained on copyrighted materials, the tools wouldn’t really exist in their current form. So a lot of my clients are wondering about, you know, can I legally use this output if it’s built upon somebody else’s IP? The second ask, the second flavor of that is really, is there liability being created if I take AI content that inadvertently infringes or defames or biases there? So there’s the whole notion of training bias from the training materials that comes out. The third phase is really, you know, can I really own this? Because much of the world does not really give IP rights into AI-generated inventions, copyrighted materials. It’s still kind of a big razor. Then at the end of the day, you know, if it’s an existing relationship, does my contract even contemplate this? So everything from authors contracts on up to just use of data rights that predate AI. Ken Suzan: And Jeanine and Mark, a question to both of you. How would you describe where we are right now in the AI revolution in media and entertainment? Are we approaching a tipping point? And if so, what are the things we need to watch for? Jeanine Wright: Yeah, I definitely think that we’re at a phase where people are starting to come to the realization that AI is the world’s most powerful creative tool. But that, you know, storytelling and point of view is what creates demand and audiences. And AI doesn’t threaten or change that. But it does mean that as people evolve in this medium, they’re very likely going to need to adopt, utilize and figure out how to hone their craft with these AI-generated content and these AI-generated toolings. So this is, you know, something that people have done certainly in the past in all sorts of ways in using new tools. And we’ve seen that make a significant change in the industry. So you look at, you know, the dawn of animation as a medium. You look at use of special effects, computer-generated imagery in the likes of Pixar. And this is certainly the next phase of that evolution. But because of the power of the tool and what will become the ubiquity of the tool, I think that it’s pretty revolutionary and all the more necessary for people to figure out how to embrace this as part of their creative process. Ken Suzan: Thank you, Jeanine. Mark, your thoughts? Mark Stignani: Yeah, I mean, I liken this to historically to like the California gold rush right now, because, you know, the technology is so far outpaced in any of the legal frameworks that are available. And so we’re just trying to shoehorn things in left and right here. So, I mean, the courts are beginning to start to engage with the foundational questions. I don’t think they’re quite there yet. I just noticed Anthropic got sued again by another group of people, big music group, because of the downloaded works they’ve done. I mean, so the courts are, you know, the courts are certainly inundated with, you know, too many of these foundational questions. Legislatively, hard to tell. I mean, federal law, the federal government is not moving uniformly on this other than to let the gold rush continue without much check and balance to it. Whereas states are now probably moving a lot faster. Colorado, Illinois, even Minnesota is attempting to craft legislation and limitations on what you can do with content and where to go with it. So, I mean, the things we need to watch for any of the fair use decisions coming out here, you know, some of the SAG-AFTRA contract clauses. And, you know, again, the federal government, I just, you know, I got a big shrug going as to what they’re actually going to come up with here in the next 90 to 100 days. So, but, you know, I think they’ll be forced into doing something sooner than later. Ken Suzan: Okay, let’s jump into the topic of the rise of generative content pipelines. My first question to Jeanine. Studios and production companies are now building what some call generative content pipelines. This is where AI systems produce everything from scripts to visual effects to voice performances. What efficiencies and creative possibilities does this unlock for the industry? Jeanine Wright: Yeah, so this is quite a bit of what we do. And if I could help pull the curtain back and explain a little bit. Ken Suzan: That’d be great. Jeanine Wright: Yeah, there’s this assumption that, you know, somebody is just sitting behind a machine pushing a button and an out pops, you know, what it is that we’re producing. There’s actually quite a bit of humans still in the loop in the process. You know, we have my team as creators. The other half of my team is the technologists. And those creators are working largely at what we describe as the the tip of the sphere. So they’re, of course, coming up with the concepts of who are these personalities? What are these personalities, characters, backgrounds going to be a lot of like rich personality development? And then they’re creating like what are the formats? What are the kind of story arcs? What is the kinds of content that this this character wants to tell? And what are the audiences they’re desiring to reach and what’s most going to resonate with them? And then what we built internally is what we refer to as an AI orchestration layer. So that allows us to pull from basically all of the different models and then all of these different really cool AI tools. And put those together in such a way and combine those in such a way that we can have the kind of output that our creative team envisions for what they want it to be. And at the end of the day, what you what the stack looks like for, say, a long form audio drama, like the combination of LLMs that we’re going to use in different parts of scripting and production and, you know, ideating and all of that. And the kinds of tooling that we use to actually make it and get it to sound good and have the kinds of personality characteristics that we want to be in an authentic voice for a podcast is going to be different than the tech stack and the tool stack that we might use for a short form Instagram beauty tip reel. And so there’s a lot of art in being able to pull all of these tools together to get them to do exactly what you want them to do. But I think the second part of your question is just as interesting as the first. I mean, what is what possibilities is this unlocking? So of course you’re finding efficiencies in the creative production process. You can move faster. You can do things were less expensive, perhaps, and you were able to do it before. But on the creator side, I think one thing that hasn’t been talked about enough is how it is really like blown wide the aperture of what creators can do and can envision. Traditionally, you know, Hollywood podcasting, many of these businesses that become big businesses have become hit making businesses where they need to focus on a very narrow of wide gen pop content that they think is going to get tens of millions, hundreds of millions in, you know, fans and dollars in revenue for every piece of content that they make. So the problem with that is, is that it really narrows the kinds of things that ultimately get made, which is why you see things happening in Hollywood, like the Blacklist, which is, you know, this famous list of really exceptional content that remains unpredited, unproduced, or why you see things like, you know, 70 to 80% of the top 100 movies being based on pre-existing IP, right? Because these are such huge bets that you need to feel very confident that you’re going to be able to get big, big audiences and big, big dollars from it. But with AI, and really lowering the barrier to entry, lowering the costs of production and marketing, the experimentation that you can do is really, really phenomenal. So, you know, my creative team, if they have an idea, they make it, you know, they don’t have to wring their hands through like a green lighting process of, you know, should we, shouldn’t we, like we, we can make an experiment with lots of different things, we can do various different versions of something. We can see what would this look like if I placed it in the 1800s, or what if I gave this character an Australian accent, and it’s just the power of being able to have this creative partner that can ideate with you and experiment with you at rocket speed. With the creators that are embracing it, you can see how it is really fun for them to be able to have this wide of a range of possibility. Ken Suzan: Mark, when you hear about these generative pipelines, what are the immediate red flags or concerns that come to mind from a legal standpoint? How about ethics underlying all of this? Well, Mark Stignani: that was not, that’s the number one red flag because I mean, we are seeing not just that in the entertainment industry, but it literally at political levels, and the kind of the phrase, to turn the phrase AI slop being generated, we’re seeing, you know, people’s facial expressions altered. In some cases, we’re seeing AI tools being misused to exploit various groups of individuals and genders and age groups. So I mean, there’s a whole lot of things ethically that people are using AI for that just don’t quite cover it. Especially in the entertainment industry, I mean, we’re looking at a fair amount of displacement of human workers without adequate transition support, devaluation of the creative labor. I mean, the thing though that I’m always from a technical standpoint is AI is simply a statistical average of most everything. So it kind of devalues the benefit of having a human creator, a human contribution to it. That’s the ethical side. But on the legal side, I see chain of title issues. I mean, because these are built on very questionable IP ownership stages, I mean, in most of these tools, there has been some large copying, training and taking of copyrighted materials. Is it transformational? Maybe. But there’s certainly not a chain of title, nor is there permission granted for that training. I mentioned SAG-AFTRA earlier, I think there’s a potential set of union contract aspects to this that if you know many of these agreements and use sub-licenses for authors and actor agreements, they weren’t written with AI in mind. So that’s another red flag. And also I just think in indemnification. So if we ultimately get to a point where groups are liable for using content without previous license, then who’s liable? Is the tool maker the liable group or the actual end user? So those are probably my top four red flags. But I think ethics is probably my biggest place because just because we can do something from an ethical standpoint doesn’t mean we should. Jeanine Wright: Yeah, if I can respond to both of those points. I mean, one from a legal perspective, just to be very clear, I mean, we are always pulling from multiple different models and always pulling from multiple different sources. And we even have data sources that we license or use for single source of truth on certain pieces of information. So we’re always pulling things together from multiple different sources. We also have built into our process, you know, internal QAing and checking to make sure that we’re not misappropriating the name or likeness of any existing known personality or character. We are creating original personalities there. We design their voice from scratch. We design their look from scratch. So we’re not on our personality side, we’re not pulling or even taking inspiration from existing intellectual property that’s already out there in creating these personalities. On the ethical side, I agree. I mean, when we came out of stealth, we came out of stealth in September. There was certainly quite a bit of backlash from folks in my—I previously co-founded a company in the audio space. I mean, there’s been many rounds of layoffs in audio and in many other parts of the entertainment industry. So I’m very sensitive to the feedback around, like, is this job displacement? I mean, I do think that the CEO of NVIDIA said it right when he said, you’re likely not going to lose your job to AI, but you will lose your job to somebody who knows how to use AI. I think these tools are transforming the way that content is made and that the faster that people can embrace this tooling, the more likely they’re going to be having the kinds of roles that they want in, you know, in content creation and storytelling in the future. And we are hiring. I’m hiring AI video creators, AI audio creators. I’m hiring AI developers. So people who are looking for those roles, I mean, please reach out to me, we would love to work with you and we’d love to grow with you. We also take the ethics very seriously. For the last few months or so, I’ve met regularly with an ethicist, we talk about all sorts of issues around, you know, is designing AI-generated people, you know, good for humanity? And what about authenticity and transparency and deception, and how are we in building in this space going to avoid some of the problems that we’ve seen with things like social media and other forms of technology? So we keep that very top of mind and we try to build on our own internal values-based system and, you know, continue to elevate and include the humanity as part of the conversation. Ken Suzan: Thank you, Jeanine. Jeanine, some argue that AI content pipelines will level the field for filmmaking, giving independent creators access to tools that were once available only to major studios. Is that the future you envision? Jeanine Wright: I do think that with AI you will see an incredible democratization of access to technology and access to these capabilities. So I do think, you know, rise of independent filmmakers, you won’t have as many people who are sitting on a brilliant idea for the next fantastic script or movie that just cannot get it made because they will be able to with these tools, get something made and out there, at least to get the attention of somebody who could then decide that they want to invest in it at a studio kind of level in the future. The other thing that I think is really interesting is that I think, you know, AI will empower more niche content and more creators who can thrive in micro-communities. So it used to be because of this hit generation business model, everything needed to be made for the masses and a lot of content for niche audiences and micro-communities was neglected because there was just no way to make that content commercially viable. But now, if you can leverage AI—we make a pollen report podcast in 300 markets, you know, nobody would have ever made that before, but it is very valuable information, a very valuable piece of content for people who really care about the pollen in their local community. So there’s all sorts of ways that being able to leverage AI is making it more accessible both to the creator and to the audience that is looking for content that truly resonates with them. Ken Suzan: Mark, let’s talk about the legal landscape right now. If someone creates an AI-generated performance that closely resembles a living actor without their consent, what legal recourse does that actor have? Mark Stignani: Well, I mean, I think we can go back to the OpenAI Scarlett Johansson thing where, you know, if it’s simply—well, the “walks like a duck, quacks like a duck” type of aspect there. You know, I think it’s pretty straightforward that they need to walk it back. I mean, the US doesn’t have moral rights, really, but there’s a public visage right, if you will. And so, one of the things that I find predominantly useful here is that these actors likely have rights of publicity there, we probably have a Lanham Act false endorsement claim, and you know, again, if the performance is not parody, and it’s so close to the original performance, we probably have a copyright discussion. But again, all of these laws predate the use of AI, so we’re going to probably see new sets of law. I mean, we’re probably going to see “resurrection” frameworks, we’ll probably have frameworks for synthetic actors and likenesses, but the rules just aren’t there yet. So, unfortunately, your question is largely predictive versus well-settled at this point. Ken Suzan: Jeanine, your company works with AI actors. How do you navigate the questions of consent and likeness compensation when creating digital performers? Jeanine Wright: I mean, if we—so first of all, if we were to work with a person who is an existing real-life person or was an existing real-life person, then we would work with them to license their name and likeness or their voice or whatever aspects of it we were going to use in creating content in partnership with them. Not typically our business model; we are, as I said, designing all of our personalities from scratch and making all of our content originally. So, we’ve not had to do that historically. Now, you know, the flip side is: can I license my characters as if they’re similar to living characters? Like will I be able to license the name and likeness and voice of my AI-generated personalities? I think the answer is yes and we’re already starting to do that. Ken Suzan: Let’s just switch gears into ethics and AI because I find this to be a really fascinating issue. I want to look at a hypothetical. And this is to both of you, Jeanine and Mark: an AI system creates a new performance by a beloved actor who passed away decades ago, and the actor’s estate authorizes it, but the actor was known to have expressed opposition to such technology during their lifetime. Is this ethical? Jeanine Wright: This feels like a Gifts, Wills, and Trusts exam question. Ken Suzan: It sounds like it, that’s right. Jeanine Wright: Throwing me back to my law school days. Exactly. What are your thoughts? It’d be interesting to see like who has the rights there. I mean, I think if you have the legal rights, the question is around, you know, is it ethical to go against what you knew was somebody’s wishes at the time? I guess the honest answer is I don’t know. It would depend a lot on the circumstances of the case. I mean, if we were faced with a situation like that where there was a discrepancy, we would probably move away from doing that content out of respect for the deceased and out of a feeling that, you know, if this person felt strongly against it, then it would be less likely that you could make that storytelling exceptional in some way—it would color it in a way that you wouldn’t want in the outcome. And I feel like there’s—I mean, certainly going forward and it’s already happening—there are plenty of people I think who have name, likeness, and voice rights that they are ready to license that wouldn’t have this overhang. Ken Suzan: Mark, your thoughts? Mark Stignani: Yeah, I mean, again, I have to kind of go back to our property law—the Rule Against Perpetuities. You know, from a property standpoint to AI rights and likenesses—since most of the digital replica contracts that I’ve reviewed generally do talk about things in perpetuity. But if it’s not written down for that actor and the estate is doing this—is it ethical? You know, that is the debate. Jeanine Wright: Well, gold star to you, Mark, for bringing up the Rule Against Perpetuities. There’s another one that I haven’t heard for many years. This is really taking me back to my law school days. Ken Suzan: It’s a throwback. Jeanine Wright: The other thing that’s really interesting is that this technology is really so revolutionary and new that it’s hard to even contemplate now what it is going to be in a decade, much less for people who have passed away to have contemplated what the potential for it could be today. So you could have somebody who is, perhaps, a deceased musician who expressed concerns about digital representations of themselves or digital music while they were alive. But now, the possibility is that you could recreate—certainly I could use my technology to recreate—that musician from scratch in a very detailed way, trained on tons of different available data. Not just like a digital twin or a moving image of them, but to really rebuild their personality from scratch, so that they and their music could be reintroduced to totally new generations in a very respectful and authentic way to them. It’s hard to know, with the understanding that that is possible, whether or not somebody who is deceased today would or would not agree to something like that. I mean, many of them might want, under those circumstances, for their music to live on. These deceased actors and musicians could live forever with the power of AI technology. Mark Stignani: Yeah, I really just kind of go to the whole—is deep-faking a famous actor the best way to preserve them or keep them live? Again, that’s a bit more of an ethical question because the deep fakes are getting good enough right now to create huge problems. Even zoom meetings in Hong Kong where a CFO was on a call with five synthetic actors who all looked like his coworkers and they sent a big check out based upon that. So again, the technology is getting good enough to fool people. Jeanine Wright: I think that’s right, Mark, but I guess I would just highlight the same way that it always has been: the ethical line isn’t AI versus human, the ethical line is about deception. Like, are you deceiving people? And if people know what it is that they’re getting and they’re choosing to engage with it, then I think it isn’t about the power of the technology. In our business, we have elected—not everybody has—but we have elected to be AI transparent. So we tell people when they listen to our show, we include it in our show notes, we include it on our socials. Even when we’re designing our characters to be very photo-realistic, we make an extra point to make sure that people know that this is AI-generated content or an AI personality. Like, our intention is not to deceive and to be candid. From a business model perspective, we don’t need to. I mean, there’s already people who know and understand that it is AI, and AI is different than people. Because it is AI, there’s all sorts of things that you can do with it that you would not be able to do with a real person. You know, we get people who ask us on the podcast side, we get all sorts of crazy funny requests. You know, people who say, “Can I text with this personality? Can I talk to them on the phone? Can they help me cook in the kitchen? Can they sing me Happy Birthday? Can they show up at my Zoom meeting today because I think my boss would love it?” You know, all sorts of different ways that people are wanting to engage with these characters. And now we’re in the process of rolling out real-time personalities so people will be able to engage with our personalities live. It is a totally different way that people are able to engage with content, and people can, as they choose, decide what kind of content they want to engage with. Ken Suzan: Jeanine and Mark, we’re coming to the end of this podcast. I would love to keep talking for hours but we have to stay to our timetable here. Last question: five years from now, what percentage of entertainment content do you predict will involve significant AI generation, and will audiences care about that percentage? Jeanine? Jeanine Wright: I mean, I would say 99.9%. I mean, already you’re seeing—I think YouTube did a survey—that it was like 90% of its top creators said that they’re using AI as material components of their content creation process. So, I think this will be the default way that content is created. And content that is not made with AI, you know, there’ll be special film festivals for non-AI generated content, and that will be a special separate thing than the thing that everybody is doing now. Ken Suzan: Mark, your thoughts? Mark Stignani: Yeah, I go a little lower. I mean, I think Jeanine is right that we’re seeing, especially in the low-quality content creation and like the YouTube shorts and things like that, you know, there’s so much AI being pushed forward that the FTC even acquired an “AI slop” title to it. I do think that disclosure will become normalized, that the industries will be pushed to say when something is AI and what is not. And I think it’s very much like, you know, do you care about quality or not? If you value the human input or the human factor in this, there will be an upper tier where it’s “AI-free” or low AI assistant. I think that it’s going to stratify because the stuff coming through the social media platforms right now—I can’t be on it right now just because there’s so much nonsense. Even my children, who are without much AI training at all, find it just too unbelievable for them. So, I think it will become normalized, but I think that we’re going to see a bunch of tiers. Ken Suzan: Well, Jeanine and Mark, this has been a fantastic discussion of an ever-evolving field in IP law. Thank you to both of you for spending time with us today on the IP Friday’s podcast. Jeanine Wright: Thank you so much for having me. Mark Stignani: Appreciate your time. Thank you again.
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  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 30.01.2026 35นาที

  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 format, or rework it as a thought-leadership piece for LinkedIn or your website. Rolf Claessen: Today’s interview guest is Eva Schewior. If you don’t know her yet, she is the President of the German Patent and Trademark Office. Thank you very much for being here. Eva Schewior: I’m very happy that you’re having me today. Thank you, Mr. Claessen. Rolf Claessen: Shortening the length of procedures has been a stated goal since you took office. What is the current situation, and which measures are in place to achieve this goal? Eva Schewior: First of all, I’m very glad that German IP rights are in high demand. Even though applicants in Europe have multiple options today to obtain protection for their innovations, we have seen increasing application numbers for years at my office, even after the introduction of the Unitary Patent system. I see this as very positive feedback for our work. It is clear, however, that the high number of applications leads to a constantly increasing workload. At the same time, we want to remain attractive for our applicants. This means we must offer not only high-quality IP rights but also reasonable durations of proceedings. Ensuring this remains a central and permanent objective of our strategy. The average duration of proceedings from filing to grant is currently about three years and two months, provided that applicants file an examination request within the first four months after application and do not request extensions of time limits. In other cases, the average duration of proceedings is admittedly longer. With these three years and two months, we do not have to shy away from international comparison. Nonetheless, we strive to get better. In the last few years, we were able to improve the number of concluded proceedings or to keep them at a high level. In some areas, we were even able to shorten durations of proceedings a bit, though not yet to the extent that we would have wished for. Our efforts are often overtaken by the increasing demand for our services. Just to give you an example, in the last ten to fifteen years, search requests increased by nearly fifty percent. Despite this, we managed to deliver search reports in ninety percent of all cases in time, so that customers have enough time left to take a decision on a subsequent application. I have to admit that we are not equally successful with the first official communication containing the first results of our examination. Here, our applicants need a bit more patience due to longer durations of proceedings. But I think I do not have to explain to your expert audience that longer processing times depend on various reasons, which are in no way solely to be found on our side as an examination office. To further reduce the length of proceedings, we need targeted measures. To identify them, we have analyzed the needs of our applicants. It has been shown that there are two main interests in patent procedures. About three quarters of our applicants have a very strong interest in obtaining a patent. They mainly expect us to make fast decisions on their applications. Here we find applicants who want to have their invention protected within Germany but often also wish for subsequent protection outside Germany. The remaining quarter consists of applicants that are solely interested in a fast and high-quality first assessment of the application by means of a search or a first official examination. We observe that these applicants use our services before they subsequently apply outside Germany. This latter group has little interest in continuing the procedure before my office here in Germany. We are currently considering how we can act in the best interest of both groups. What I can certainly say is that we will continue to address this topic. And of course, in general, it can be said that if we want to shorten the duration of proceedings, we need motivated and highly skilled patent examiners. Therefore, we are currently recruiting many young colleagues for our offices in Munich and Jena, and we want to make our procedures more efficient by using new technical options, thus taking workload from patent examiners and enabling them to concentrate on their core tasks and on speedy examination. Rolf Claessen: Thank you very much. I also feel that the German Patent and Trademark Office has become quite popular, especially with the start of the UPC. Some applicants seem to find that it is a very clever option to also file national patents in Germany. Eva Schewior: I think you’re perfectly right, and I think we will come to this point later. Rolf Claessen: In 2023, you mentioned artificial intelligence as an important tool for supporting patent examiners. What has happened regarding AI since then? Eva Schewior: Of course, we are already successfully using AI at our office. For instance, in the field of patent search, we use AI-based tools that make our examiners’ work easier. We also use AI quite successfully for classification and for the translation of Asian patent literature into English. In the meantime, we have seen a rapid development of AI in the market. I think it is strategically imperative to get an overview and to make realistic assessments of what AI is capable of doing to make our procedures more efficient. Therefore, we are observing the market to find out where AI can perform tasks so that we enable examiners to concentrate on their core business. There are many ideas right now in our office where artificial intelligence can help us tackle challenges, for instance demographic change, which certainly also affects our office, and maintaining our quality standards. We will strategically promote new tools in this field to cope with these challenges. But this much is also clear: humans will always stay in our focus. Especially in public administration, I consider it a fundamental principle that in the end, decisions must be taken and reviewed by humans. AI may help us reach our goals in a more efficient way, but it can never replace patent or trademark examiners. Rolf Claessen: You have made quality improvements in patent examination a priority and have already implemented a number of measures. How would you describe the current situation? Eva Schewior: I often receive positive feedback from different sides that our users are very satisfied with the quality of our examination, and I’m very glad about that. But maintaining this quality standard is a permanent task, and we must not become careless here. For years, for instance, we have established double checks for all grants and rejections. In addition, we have introduced a quality management tool that enables us, even during the examination process, to randomly check the quality of first office communications and searches. This helps us detect critical trends and take appropriate countermeasures at a very early stage. What is also very important when it comes to patent quality is to actively ask our customers for their feedback. We do this in different ways. Just to give you an example, we have a User Advisory Board, which is a panel of external experts implemented a couple of years ago. Discussing questions of quality is regularly on the agenda of this board. We carefully listen to criticism, ideas, and suggestions, and we have already implemented some of them for the benefit of the office and our users. Rolf Claessen: The German Patent and Trademark Office, as the largest patent and trademark office in Europe, records very high numbers of trademark applications. What are you currently especially concerned with in the trademark area? Eva Schewior: In 2025, we saw around ninety-five thousand trademark applications. This is an increase of eighteen percent compared to the previous year, and I have to say that this took us by surprise. Especially applications from outside Germany, and above all from China, have risen significantly. It is of course challenging to cope with such a sudden increase on an organizational level. Another challenge is dealing with trademark applications filed in bad faith, which we are currently seeing more and more of. We have thoroughly trained our trademark examiners on how to identify and handle such applications. As regards the new types of trademarks, the rush has been moderate so far. Sound marks, multimedia marks, or holograms are apparently not yet common solutions for the majority of applicants. The key focus remains on word marks and combined word and figurative marks. Nevertheless, I believe that the new trademark types are a meaningful supplement and may play a greater role as digitization advances. The most significant changes, however, concern procedures. Applicants can now choose whether to file revocation or invalidity actions with the courts or with our office. While courts may proceed somewhat faster, the financial risk is higher. Before the DPMA, each party generally bears its own costs, apart from exceptional cases. Rolf Claessen: How does this dynamic filing development impact the duration of trademark proceedings? Eva Schewior: This is indeed a major organizational challenge. For a long time, our trademark department managed to keep durations of proceedings very short, especially with regard to registration. Despite the recent increases in applications, especially in 2025, we hope to avoid a significant extension of processing times. We have restructured the organization of the trademark department to distribute applications more equally among teams. Applicants should also be aware that it is possible to request accelerated examination for a relatively moderate fee of two hundred euros. This often leads to registration within a very short time. The filing date, of course, always determines priority. Rolf Claessen: Since December 2025, the EU grants protection not only for agricultural products but also for craft and industrial products through geographical indications. Has your office already received applications? Eva Schewior: Yes, we have received our first application, and interestingly it concerns garden gnomes. Protected geographical indications are an important topic because they help maintain traditional know-how in regions and secure local jobs. The DPMA is the competent authority for Germany. Applications go through a national examination phase at our office before being forwarded to the EUIPO, which takes the final decision on EU-wide registration. Eligible products must originate from a specific region and derive their quality, reputation, or characteristics from that origin, with at least one production step taking place there. Rolf Claessen: The DPMA has expanded its outreach activities, including social media. What else is planned? Eva Schewior: Raising awareness of IP rights, especially among small and medium-sized enterprises, is part of our statutory duty. We currently use LinkedIn and YouTube to communicate IP topics in an understandable and engaging way. We also plan dedicated LinkedIn channels, for example for SMEs. Studies show that fewer than ten percent of European SMEs use IP rights, even though those that do earn significantly more on average. In 2026, we will further expand outreach activities, cooperate more closely with universities and educational institutions, and publish new studies, including one on the patenting behavior of innovative German start-ups conducted together with WIPO. Rolf Claessen: Where do you see the biggest future challenges in IP? Eva Schewior: Germany depends on innovation, but awareness of IP protection is still insufficient, particularly among SMEs and start-ups. Some companies deliberately avoid IP rights and rely on trade secrets, which I consider risky. Another growing concern is the increase in product and trademark piracy, often linked to organized crime. For our office, remaining attractive and competitive is crucial. Applicants have many options in Europe, so we need fast procedures, legally robust decisions, qualified staff, and modern IT systems. Rolf Claessen: The DPMA is currently recruiting. Which areas are you focusing on? Eva Schewior: Our focus is on patent examination and IT. We recently hired fifty new patent examiners and are particularly looking for experts in fields such as electrical engineering, e-mobility, IT, and aerospace. We are Europe’s largest national patent office and offer meaningful, secure jobs with fair compensation and strong development opportunities. Rolf Claessen: Is there a final message you would like to share with our listeners? Eva Schewior: The Unitary Patent system has created many new options. German and European patent systems do not compete; they complement each other. For many SMEs, a German patent may already be sufficient, especially where Germany is the core market. Holding both European and national patents can also be a strategic advantage. My key message is: be aware of the options, stay informed, and choose your IP strategy deliberately. Rolf Claessen: Thank you very much for being on IP Fridays. Eva Schewior: Thank you for having me. It was a pleasure.
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  Valuation of Intellectual Property Rights – Damages in Infringement Cases – Interview with Brian Buss – Happy Holidays! – IP Fridays – Episode 170 26.12.2025 29นาที

  Brian is: Managing Director, GlassRatner LinkedIn bio: https://www.linkedin.com/in/brianbuss I am Rolf Claessen and my co-host Ken Suzan and I are welcoming you to episode 170 of our podcast IP Fridays! We also want to wish you a happy holiday season and a successful year 2026! Today’s interview guest is Brian Buss. He is the managing director of GlassRatner and my co-host Ken Suzan talks with him about the valuation of intellectual property rights and damages in infringement cases. But before we jump into the interview, I have news for you! A US start-up called Operation Bluebird is trying to take over the “Twitter” trademark. It has asked the USPTO to cancel Twitter word marks, arguing that Elon Musk’s company X no longer uses them after the rebrand. Led by a former Twitter trademark lawyer, Operation Bluebird also filed its own “Twitter” trademark application. Commentators note that X could face challenges defending the legacy marks if they are truly no longer in use. In parallel, the US debate on patent quality and review procedures is intensifying. The USPTO proposed controversial rule changes that would restrict Inter Partes Review (IPR). The proposal triggered substantial backlash, with more than 11,000 public comments submitted—over 4,000 of them via the civil liberties group EFF. In the EU, a major trademark reform will take effect on 1 January 2026. It aims to simplify procedures, recognize new types of marks (including hologram, multimedia, and motion marks), and make fees more SME-friendly (e.g., lower base fees for the first class and discounts for timely renewals). Opposition procedures will be further harmonized across the EU, including a mandatory “cooling-off” period, so mid-sized brand owners should adjust filing and monitoring strategies accordingly. The Unified Patent Court (UPC) continues to see strong uptake, especially in Germany. In the first 18 months since its launch on 1 June 2023, well over 900 cases were filed, with German local divisions (Munich, Düsseldorf, Mannheim, Hamburg) leading in patent actions. While many early cases were filed in German, English now dominates as the main language of proceedings. The court has largely met its timelines, with oral hearings typically held within 12 months of filing. China has reached a milestone in its patent system: for the first time, a country has surpassed 5 million active invention patents. CNIPA emphasizes a strategic shift from “quantity to quality,” citing growth in “high-value” patents and higher commercialization rates for university inventions. China has also led global PCT filings for six consecutive years—signals of rapid technological progress relevant to IP planning for German SMEs. On 4 December 2025, the USPTO issued new guidance on “Subject Matter Eligibility Declarations.” These declarations allow applicants to submit additional evidence to support patent eligibility for emerging technologies such as AI systems and medical diagnostics, aiming to reduce the risk that breakthrough inventions are excluded from protection under strict eligibility case law. In December, the European Patent Office (EPO) introduced new patent-quality measures. Third parties can now submit observations on published applications or granted patents via a simplified online form. These Third-Party Observations—supported by evidence and even filed anonymously—go directly to examination teams to flag potential obstacles early. The Interview with Brian Buss: Ken Suzan interviews Brian Buss, a valuation and damages expert who describes his work as “financial detective” work: identifying what intellectual property and other intangible assets are worth and how they translate into measurable economic benefits such as sales, profit, earnings, or cash flow. Buss emphasizes that “IP” should be understood broadly, not only as formal rights (patents, trademarks, copyrights), but also as brands, technology portfolios, internet and social media assets, know-how, and other business intangibles that help generate economic value. A central point is that IP is often a company’s most valuable resource but is rarely measured well. Buss cites a “value gap” he observed in middle-market public companies: market capitalization often exceeds the asset values shown on balance sheets, and much of the gap is explained by intangible assets and IP. He argues that valuation helps companies understand ROI on IP spend (prosecution, protection, enforcement) and supports better strategic decision-making. He outlines common scenarios that trigger IP valuation: internal management needs (understanding performance drivers), disputes about resource allocation (e.g., technology vs. marketing), external events (M&A, licensing, partnerships, franchising, divestitures), and pricing strategy (how exclusivity supported by IP should affect product/service pricing). On “how” valuation is performed, Buss summarizes the three standard approaches—cost (replacement/replication cost), market (comparable transactions), and income (present value of future benefits). He adds that strong IP valuation requires integrating three dimensions of analysis: financial factors (performance data and projections), behavioral factors (customer demand drivers, perceptions, brand recall, feature importance), and legal factors (registration/enforcement history and competitive IP landscape). For practical readiness, he advises companies to improve data discipline: maintain solid books and records; develop credible budgets, forecasts, and business plans; document marketing activities; and actively collect/monitor website and social analytics (e.g., traffic sources, engagement). He stresses that these datasets inform valuation even for technology assets like patents, because they reveal whether protected features are actually marketed and valued by customers. A concrete example is domain names, which he frames as “virtual real estate.” In due diligence for a domain sale, he would focus on analytics showing whether the domain itself drives traffic (direct type-ins, branded search terms, bookmarks) versus traffic driven by other marketing efforts. The key question is whether the address is known and used as a pathway to the business. In closing, Buss argues that while gathering the necessary information requires effort, the investment typically pays off through greater awareness of the most valuable assets, better strategic decisions, and stronger support for growth opportunities. He presents IP valuation as a virtuous cycle of information, insight, and improved decision-making—summed up in his recurring theme: knowledge of IP value is “power” to increase business profitability and enterprise value. Here is the full transcript: Ken Suzan: Our guest today on the IP Fridays podcast is Brian Buss. Brian is a managing director with Glass-Rattner Advisory and Capital Group. Brian provides financial analysis, corporate finance, and expert testimony around the world. Ken Suzan: Mr. Buss provides strategic advice for owners of intellectual property portfolios, transactional services such as acquisition due diligence and purchase price allocation, and valuation services for trademarks, patents, copyrights, brand assets, trade secrets, technology assets, and intangibles. Ken Suzan: During his career, Mr. Buss has provided valuation opinions and financial analysis in business disputes and in transactions, and he has been retained as a testifying expert and consulting expert in federal court, state courts, and arbitration proceedings. Ken Suzan: As an expert, Mr. Buss has provided over 100 expert opinions, served as an expert witness at trial and deposition, and has been published in numerous journals and publications. He is also a participant in the International Task Force on Intellectual Property Reporting for Brands. Ken Suzan: Brian holds an MBA from San Diego State University and a bachelor’s degree from Claremont McKenna College. Welcome, Brian, to the IP Fridays podcast. Brian Buss: Thank you, Ken, for having me. I appreciate the opportunity. Ken Suzan: Excellent, Brian. Can you tell our listeners a little bit about your professional background and what you do in the world of IP? Brian Buss: Sure. I’m a valuation professional and an economic damages expert. Most of my work involves valuing intellectual property and intangible assets and, in litigation contexts, assessing economic damages—often related to IP disputes. My role is frequently to translate legal or technical issues into financial outcomes. Ken Suzan: When people hear “IP,” they often think patents, trademarks, and copyrights. In your work, how broadly do you define intellectual property and intangible assets? Brian Buss: I define it very broadly. Of course, there are the formal rights—patents, trademarks, copyrights—but there are many other intangible assets that drive value: brand reputation, customer relationships, proprietary know-how, trade secrets, data, software, domain names, social media assets, and the systems and processes a business builds over time. All of those can create economic value, even if they’re not always captured well on a balance sheet. Ken Suzan: Why is IP valuation important for companies—especially mid-sized businesses that may not have a large in-house legal or finance team? Brian Buss: Because IP and intangible assets can be a large portion—sometimes the largest portion—of what makes a business valuable, yet they’re often not measured or managed with the same discipline as tangible assets. Valuation can help companies understand what is actually driving revenue, profit, and enterprise value. It can also help them justify investment in IP creation, protection, and enforcement, and it can support strategic decisions like licensing, partnerships, acquisitions, or pricing. Ken Suzan: You’ve talked elsewhere about a “value gap” between what’s on the balance sheet and what the market thinks a company is worth. Can you explain that concept? Brian Buss: Sure. If you look at many companies—particularly in the middle market—you’ll often see that market capitalization exceeds the asset values recorded on the balance sheet. A significant portion of that difference is attributable to intangible assets and IP that accounting rules don’t fully recognize unless there’s an acquisition. That “gap” is essentially the market saying, “There is value here beyond tangible assets,” and much of it comes from intangibles. Ken Suzan: What are the most common situations where a company needs an IP valuation? Brian Buss: There are a few big categories. One is transactions—M&A, due diligence, purchase price allocation, and financing. Another is licensing and partnerships—setting royalty rates, structuring deals, or evaluating whether a proposed license makes economic sense. A third is internal management: understanding ROI on R&D, marketing, or IP spend, or resolving internal debates about what is really driving business performance. And of course, litigation—damages, reasonable royalties, lost profits, and other economic remedies tied to IP. Ken Suzan: In practical terms, how do you value IP? What methods do you use? Brian Buss: The valuation profession generally relies on three approaches: the cost approach, the market approach, and the income approach. The cost approach looks at what it would cost to recreate or replace the asset. The market approach looks at comparable transactions—if you can find good comparables. The income approach is often the most relevant for IP: it looks at the present value of future economic benefits attributable to the IP, based on cash flows, risk, and time. Ken Suzan: In addition to the financial methods, what other factors matter? For example, legal strength or market perception? Brian Buss: Exactly. A strong valuation integrates financial, behavioral, and legal analysis. Financial is obvious—historic results, projections, margins, pricing. Behavioral is about demand drivers—what customers value, how they perceive the brand, how features influence purchasing decisions, and what drives loyalty or switching. Legal involves the nature of the IP rights, scope, enforceability, registration and maintenance history, and the competitive landscape. IP exists at the intersection of all three. Ken Suzan: What kind of information should a company have ready if they want to do an IP valuation? Brian Buss: Good books and records are essential—reliable financial statements, product-level revenue and cost data if possible, and credible budgets and forecasts. They should also document marketing activities, product positioning, and the role of IP in commercialization. For digital and brand assets, analytics matter—website traffic sources, conversion data, engagement metrics, and social media statistics. The more you can connect the IP or intangible asset to measurable economic outcomes, the stronger the valuation. Ken Suzan: That’s interesting—people might not think that marketing analytics matter for patents. Can you explain how those link up? Brian Buss: Sure. A patent might cover a particular feature or technology, but the key economic question is: does that feature drive demand? If customers value it and it supports pricing power, adoption, or market share, that’s important. Marketing materials, customer communications, sales training, and analytics can help show what the company emphasizes and what resonates with customers. It helps tie the legal right to real-world economic value. Ken Suzan: You mentioned domain names earlier. Many people underestimate them. How do you think about domain names as an asset? Brian Buss: I often describe domain names as virtual real estate. The question is whether the domain is a meaningful pathway to the business. In a valuation context, you’d look at the domain’s role in generating traffic—direct navigation, branded search, bookmarks, and repeat visits. You’d also look at how much traffic is attributable to the domain itself versus paid marketing. If the domain is known and drives organic traffic and credibility, it can be quite valuable. Ken Suzan: So, if you’re doing due diligence on a domain sale, what would you look for? Brian Buss: I’d look closely at analytics: traffic volume over time, sources of traffic, geographic distribution, conversion rates, and the relationship between marketing spend and traffic. If traffic is mostly paid and disappears when marketing stops, that’s different than sustained direct navigation. I’d also look at brand alignment, risk factors, and whether there are disputes or competing rights. Ken Suzan: For a mid-sized company listening to this, what are the biggest “misses” you see—things companies do that reduce the value they can capture from IP? Brian Buss: A big one is not collecting and organizing information that demonstrates value. Another is not aligning IP strategy with business strategy—filing patents or trademarks without a clear plan for how they support products, markets, and revenue. Some companies also underinvest in documenting commercialization and customer impact, which becomes important in transactions and disputes. And sometimes they simply don’t revisit their portfolios to understand what is still relevant and what is not. Ken Suzan: How should companies think about ROI on IP spend—both the costs of prosecution and the costs of enforcement? Brian Buss: They should start by identifying the economic role of the IP: is it supporting pricing power, is it protecting market share, is it enabling licensing revenue, is it reducing competitive entry? Then they can compare the costs—filing, maintenance, monitoring, enforcement—against the value it protects or creates. Valuation can provide a framework for that, and it can also help prioritize where to spend resources. Ken Suzan: When valuation is used in litigation, what are the typical types of damages analysis you’re asked to perform? Brian Buss: Commonly, reasonable royalty analysis, lost profits, unjust enrichment, and sometimes disgorgement depending on the jurisdiction and the claims. The specifics depend on the legal framework, but the core is the same: quantify the economic harm and connect it causally to the alleged infringement or misappropriation, using financial data, market evidence, and assumptions that can be tested. Ken Suzan: Are there misconceptions about valuation that you’d like to correct for our audience? Brian Buss: One misconception is that valuation is purely subjective or that it’s just an “opinion.” A good valuation is grounded in data, established methodologies, and transparent assumptions. Another is that intangibles can’t be measured. They can be measured—often through the economic benefits they create and through evidence of customer behavior and market dynamics. It takes work, but it’s doable. Ken Suzan: If a company wants to prepare for a future transaction—say a sale or a major partnership—what are some practical steps they can take now to make their IP story stronger? Brian Buss: Maintain clean records, develop credible forecasts, and document the link between IP and business results. Make sure registrations and maintenance are up to date. Track how IP supports products and competitive differentiation. Collect evidence of brand strength and customer loyalty. And if possible, structure internal reporting so you can see performance by product line or offering. That helps in due diligence and helps buyers or partners understand what they’re paying for. Ken Suzan: Any final thoughts or advice for owners of intellectual property portfolios, transactional professionals, or executives listening to this? Brian Buss: I’d emphasize that the investment in gathering the information needed for evaluation typically pays off. It creates awareness of the most valuable assets, supports better strategic decisions, and makes it easier to pursue growth opportunities. IP valuation is a virtuous cycle of information gathering, analysis, deeper understanding, and then decision-making. Knowledge is power, and knowledge of the value of your IP is the power to increase the profitability and value of your business. IP valuation is a key element of the management toolkit. Ken Suzan: Brian, well said, and thank you so much for taking time today to be on the IP Fridays podcast. Brian Buss: Thank you, Ken. I really appreciate the opportunity.
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  The Current State of the Unified Patent Court (UPC) – Interview With Prof. Aloys Hüttermann – Comparison With the US and China – Strategies for Plaintiffs and Defendants – Learnings From Key Cases – Cross – Border Litigation With the UPC – Top Mistakes of Plaintiffs and Defendants at the UPC – IP Fridays – Episode 169 28.11.2025 49นาที

  I am Rolf Claessen and together with my co-host Ken Suzan I am welcoming you to episode 169 of our podcast IP Fridays! Today’s interview guest is Prof. Aloys Hüttermann, co-founder of my patent law firm Michalski Hüttermann & Partner and a true expert on the Unified Patent Court. He has written several books about […]
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  Interview With Wole Araromi About the Registration and Enforcement of Trademarks in Nigeria – the Future of the PTAB in the US – UPC Anti-Interim-License Injunction – Personal Liability on Patent Infringement Cases – Episode 168 – IP Fridays 31.10.2025 24นาที

  I am Rolf Claessen and you are listening to episode 168 of our podcast IP Fridays! My co-host Ken Suzan has interviewed Wole Araromi about the registration and enforcement of trademarks in Nigeria. But before we jump into this great interview, I have news for you: The U.S. patent system is currently undergoing significant changes. […]
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  Interview With Prof. Karsten Lemmer – German Aerospace Center DLR – Licensing, Startups and IP Strategy For a Large Research Institution in Germany – IP Fridays – Episode 167 27.09.2025 26นาที

  Interview with Prof. Karsten Lemmer, Executive Board Member of the German Aerospace Center DLR responsible for ‘Innovation, Transfer and Research Infrastructure’. ECJ strengthens enforcement of national trademarks across borders: In its ruling C-76/24, the ECJ clarified that trademark owners can also take action against trademark-infringing goods if these are located in another member state—provided that […]
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  Update UK Trademark Caselaw – Doctrine of Postsale Confusion – Interview With Joshua Cunnington – Lutnick Suggests 5% Patent-Value Fee – UPC Court of Appeal Does Not Endorse Referral to the CJEU – IP Fridays Podcast – Episode 166 29.08.2025 24นาที

  I am Rolf Claessen and my Co-Host Ken Suzan and I are welcoming you to episode 166 of the IP Fridays Podcast. Today’s interview guest is Joshua Cunnington, who is Managing Associate at Stephenson Harwood in the UK. My Co-Host Ken Suzan talks with him about an update on Trademark Caselaw in the UK, e.g. […]
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  Interview With J. Christian Wichard, Deputy Director General at the German Federal Ministry of Justice and Consumer Protection in Germany – History of the Unified Patent Court (UPC) – Important Changes in IP Law in Europe – the EU IP Reform Package – Copyright and AI – Remuneration of Creators in the Platform Economy – IP Fridays Podcast – Episode 165 25.07.2025 46นาที

  I am Rolf Claessen and my co-host Ken Suzan and I are welcoming you to episode 165 of our IP Fridays podcast! Today’s interview guest is Christian Wichard, who is the Deputy Director General of at the Federal Ministry of Justice and Consumer Protection and he has been doing that for about 14 years, with […]
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  AI Tools For IP Lawyers – Cost Savings – Real World Examples – Human Oversight – Interview With Arthur Rothrock and Nicholas Sarokhanian – EPO Enlarged Board of Appeal Decision G1/24 Regarding Patent Claims – USPTO Discontinuing Accelerated Examination For Utility Patents – Octoberfest Decision of the European Court of Justice – IP Fridays – Episode 164 27.06.2025 35นาที

  I am Rolf Claessen and my co-host Ken Suzan and I are welcoming you to episode 164 of our podcast IP Fridays! Today’s interview guests are Arthur Rothrock and Nicholas Sarokhanian. My co-host Ken Suzan talks with them about AI tools for IP lawyers. Arthur Rothrock https://www.linkedin.com/in/rothrocka/ Nicholas Sarokhanian https://btlaw.com/en/people/nicholas-sarokhanian Podcast: The Litigator’s Path – […]
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  Interview with Lucy Wojcik, Chief Intellectual Property Counsel at OCADO GROUP – Cross-Border Patent Litigation – In-House Organization of IP Teams – Agile IP – IP Fridays Podcast – Episode 163 30.05.2025 46นาที

  My Co-Host Ken Suzan and I are welcoming you to episode 163 of our podcast IP Fridays! Today’s interview guest is Lucy Wojcik, who is Chief Intellectual Property Counsel at OCADO GROUP PLC, and we talk about cross-border patent litigation, in-house organization of IP teams, agile IP and much more! Lucy has just been inducted […]
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  Bequeathing Bitcoin – What Happens to Bitcoin After Death – Interview With Debbie Hoffman and Anna Mouland – UPC Decisions About Anti-Anti-Suit Injunctions – Podcast IP Fridays – Episode 162 25.04.2025 32นาที

  My co-host Ken Suzan and I are welcoming you to episode 162 of our podcast IP Fridays! Today’s interview guests are Debbie Hoffman and Anna Mouland and my co-host Ken Suzan talks with them about bequeathing bitcoin, so what happens to cryptocurrency after death? “Bequeathing Bitcoin, Storing and Transferring Cryptocurrency Upon Death” published in the […]
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  Interview With António Campinos, President of the European Patent Office – Draghi Report – Unified Patent Court – Patent Quality – Challenges – IP Fridays Podcast – Episode 161 28.03.2025 39นาที

  I am Rolf Claessen and my co-host Ken Suzan and I are welcoming you to episode 161 of our podcast IP Fridays! Today’s guest is António Campinos, who is the president of the European Patent Office. We talk about the Draghi report, patent quality, the Unified Patent Court, AI, validation in non-European countries and many […]
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  Interview with James E. Malackowski, the Founder of Ocean Tomo – Patent Auctions, Managing Patent Portfolios, Blockchain in the Field of IP, the Market For Data Rights – IP Fridays – Episode 160 31.01.2025 36นาที

  My co-host Ken Suzan and I are welcoming you to episode 160 of the IP Fridays podcast! Today`s interview guest is James E. Malackowski, the founder of Ocean Tomo, in my view the first successful patent auction venue. We talk about monetization and auctioning patents, use of blockchain technology for IP and especially for licensing, […]