Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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Further Brexit Complications: On Patents

John Rizos

Milan: home of fashion, of a historic soccer rivalry, and of… intellectual property protection? Well, of course! Milan is a center of life science innovators and international property expertise[1]. The Milanese Court manages most of Italy’s patent litigation and hosts the majority of Italy’s intellectual property practitioners[2].

In response to the Brexit vote,  the Italian Trade Body in Milan (L’Ordine dei Consulenti in Proprietà Industriale) wants to replace the Court of First Instance in London, which handles claims related to pharmaceutical patents, since the court would apply EU law and Court of Justice of European Union (CJEU) rulings.  The UK Intellectual Patent Office (UKIPO), however, stated that it will preserve and implement EU regulations and abide by them as signatory to the Unified Patent Court Agreement (UPCA)[3]. The UK was historically one of the main supporters of the unified patents, had lobbied extensively to host the court in London, and had worked in advance in preparation for the system[4].

rizos_blog1_photo4

Intellectual property protection is a huge factor in the EU’s goal of harmonizing domestic laws, mainly achieved by removal of technical obstacles and implementation of directives[5]. Recently, the focus has been on harmonizing the intellectual property industry, especially patents[6]. The European Patent Convention (EPO) was signed in agreement in 1973[7], independent from the EU, comprised of EU and non-EU members. In 2013, 25 EPO States signed the Unified Patent Court Agreement (UPCA). It aims to establish the Unified Patent Court (UPC)[8] and a system of uniform patent protection throughout EPO States on new patents from any other EPO State[9]. Although it is independent from the EU, it comprises mostly EU law and can only be ratified by EU members[10]. The UPC will centralize disputes[11] through a main court in Paris with jurisdiction over legal disputes regarding patents, and two courts with jurisdiction over patents with specialized subject matter; one in Munich for engineering issues and one in London for disputes in pharmaceuticals and life sciences[12].

UK patent laws are formed by a mixture of domestic and EU laws, as many have been enacted in response to treaties and European cooperation. The UK’s ratification will not have an effect on its domestic laws, since it already includes EU law and is a signatory of the EPO. The organization will carry out the patent process as scheduled[13].The current UK patent system is governed by the Patents Act of 1977[14]. This act was framed to comply with the terms of international agreements, mainly the Cooperative Patent Classification (CPC), which although was never ratified by the EU, it was created by its predecessor, the EEC, pursuant to which the UK aligned its patent infringement provisions.[15] UK patent law is within the EU legislative framework in the areas of competition law defenses and relief for infringement for intellectual property[16]. UK supplemental protection certificates, a form of intellectual property protection which compensates for a period between filing and granting of a patent application for pharmaceuticals, is also governed by legislation implemented pursuant to EU regulation[17]. Additionally, the UK is expected to be an EU member until at least 2019[18]. During this period, the country will operate under a transitional framework pursuant to EU legislation. The government has stated that it will keep implementing EU directives and that the courts will continue to interpret EU law[19].

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In the case of an actual Brexit, the UK will likely ratify the court through the transitional framework of an EU exit or will lose its ratification vote and the UPC will be established through the very likely ratification of the rest of the EU. Even if the UK does not ratify the UPC, its patent law will be heavily influenced by EU law and it will remain an EPO member. If the UK does ratify the new court system, it would entwine UK law even closer to EU law by granting the court jurisdiction to resolve patent disputes covering EU members that have chosen to participate in the system[20]. In the case of Brexit, there would be no fundamental reason for the UK not to participate, but its participation would have to be secured by separate agreements with other countries. Since the agreements would have to be done with EU members, the UK government would have to implement laws to ensure compliance with EU laws[21]. The UK will likely consider three agreements: It remains a European Economic Area (EEA) member, it joins the European Free Trade Agreement (EFTA), or it maintains a trade partnership with the EU[22].

First, if it remains part of the EEA, court references will be made to EFTA courts and not the CJEU. However, EFTA functions to ensure uniform interpretation of EU law and the EEA has adopted EU intellectual property regulation regarding medicinal and plant protection products[23]. That may not seem important, but patent protection on medicinal products serve as “life blood” of the pharmaceutical industry, which generates 10% of the UK’s GDP, employs 100,000 people, and allows the UK to host clinical trial markets, foreign companies[24], and European medicinal organizations[25]. Second, if the UK joins EFTA, some of the remaining EU legislation could be expected to apply, especially through the transitional framework[26]. Third, if the UK decides to just trade with the EU, it would operate pursuant to a bilateral trade agreement, making it subject to CJEU jurisdiction and to EU law implementation to prevent gaps in legislation and in judicial opinions. Historically, UK judges have been influenced by decisions from other European judges, meaning they will keep referencing to CJEU rulings[27].

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In conclusion, in the field of patent protection, the EU has ostensibly achieved its goal of unity through embedded values, from which the UK will find it hard to separate. Europe does not have to worry as Brexit will not adversely affect European patent protection or UK patent law. The UK will still be guided by EU law regardless of whether it leaves the Union.

John Rizos is a 3L at the University of Baltimore School of Law with a concentration in International Law. He has an interest in human rights and international criminal law. In addition to being a CICL Fellow, John has served as the Secretary for Phi Alpha Delta Law Fraternity and is currently enrolled in HarvardX’s online course, “Humanitarian Response to Conflict and Disaster.” In June 2016, John was a member of the CICL Fellows team that, under the supervision of Professor Moore, assisted in drafting an amicus brief to the Extraordinary Chambers in the Courts of Cambodia, which was later approved and published. John graduated with honors from Towson University with a BA in International Studies (2013). He has interned at the Press Office of the Greek Embassy in Washington, D.C. and the International Civil Advocacy Network (ICAN), a non-profit organization advocating for women’s rights in the Middle East.

[1] https://www.thelawyer.com/issues/online-october-2016/brexit-mean-end-unified-patent-court/

[2] Id.

[3] http://www.lexology.com/library/detail.aspx?g=06cd3962-2c1d-4e8f-9618-c63b784b0875

[4] http://arstechnica.co.uk/tech-policy/2016/09/brexit-eu-unitary-patent-plans-legal-analysis/

[5] http://www.europedia.moussis.eu/books/Book_2/3/6/02/1/?all=1

[6] http://www.europedia.moussis.eu/books/Book_2/3/6/02/1/?all=1

[7] https://www.epo.org/about-us/office/timeline.html

[8] https://www.unified-patent-court.org/

[9] https://www.ft.com/content/9199ea86-80c8-11e6-8e50-8ec15fb462f4

[10] https://www.thelawyer.com/issues/online-october-2016/brexit-mean-end-unified-patent-court/

[11] http://www.lexology.com/library/detail.aspx?g=06cd3962-2c1d-4e8f-9618-c63b784b0875

[12] https://www.ft.com/content/9199ea86-80c8-11e6-8e50-8ec15fb462f4

[13] https://www.ft.com/content/9199ea86-80c8-11e6-8e50-8ec15fb462f4

[14] http://www.lexology.com/library/detail.aspx?g=dd074ec3-2c21-486f-b33e-5c0af5512ae8

[15] http://www.lexology.com/library/detail.aspx?g=dd074ec3-2c21-486f-b33e-5c0af5512ae8

[16] http://www.lexology.com/library/detail.aspx?g=dd074ec3-2c21-486f-b33e-5c0af5512ae8

[17] http://www.lexology.com/library/detail.aspx?g=dd074ec3-2c21-486f-b33e-5c0af5512ae8

[18] http://www.lexology.com/library/detail.aspx?g=dd074ec3-2c21-486f-b33e-5c0af5512ae8

[19] http://www.lexology.com/library/detail.aspx?g=dd074ec3-2c21-486f-b33e-5c0af5512ae8

[20] http://www.lexology.com/library/detail.aspx?g=dd074ec3-2c21-486f-b33e-5c0af5512ae8

[21] http://arstechnica.co.uk/tech-policy/2016/09/brexit-eu-unitary-patent-plans-legal-analysis/

[22] http://www.lexology.com/library/detail.aspx?g=dd074ec3-2c21-486f-b33e-5c0af5512ae8

[23] http://www.lexology.com/library/detail.aspx?g=dd074ec3-2c21-486f-b33e-5c0af5512ae8

[24] http://www.lexology.com/library/detail.aspx?g=06cd3962-2c1d-4e8f-9618-c63b784b0875

[25] http://www.lexology.com/library/detail.aspx?g=06cd3962-2c1d-4e8f-9618-c63b784b0875

[26] http://www.lexology.com/library/detail.aspx?g=dd074ec3-2c21-486f-b33e-5c0af5512ae8

[27]http://www.lexology.com/library/detail.aspx?g=dd074ec3-2c21-486f-b33e-5c0af5512ae8


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No Common Heritage: Why the Internet Cannot be Regulated Like the Sea

Matthew Matechik

In the rapidly unfolding digital age, the strongest player on the international stage is not necessarily the state with the biggest weapons or the most soldiers. Instead it is the cyber actor, which may or may not be a state, capable of most effectively leveraging the Internet to achieve objectives. Like the seafaring captains of old, these actors navigate the labyrinth of the Internet to discover, to trade, to pillage, and to conquer. Digital packets are their vessels. The Internet is their sea.

Internet Pirate

Like the sea, the internet encircles the globe. Like the sea, the Internet is used for benign activity, such as commerce and leisure, but also for destructive activity, such as theft and combat. The sea has sailors and pirates; the internet has cyber professionals and hackers. The comparison seems appropriate and begs the questions: Can international law regulate the Internet like it regulates the sea?

The similarities between the Internet as a medium and the sea as a medium suggest that international principles governing the use of the sea could effectively be applied to the use of the Internet. Upon inspection, however, this theory quickly erodes for numerous reasons. Perhaps the most significant obstacle is the lack of a common heritage to the Internet. Common heritage is the critical component that has allowed the law of the sea to develop.

Customs governing the use of the sea probably began to emerge when humans first encountered other humans at sea. These customs grew out of a recognition that the sea was an incredibly vast shared space that no one nation could hold in the way that land territory could be held. The sea was recognized as the common heritage of mankind. Seafaring parties intersected with both allies and enemies in this shared space. Customs and laws continued to develop over millennia to regulate these encounters. As humanity’s access to the sea increased, international norms increased, including codifying many of these customs in the UN Convention on the Law of the Sea (UNCLOS). These laws were based on the idea that all humans enjoyed freedom of the sea because it was common heritage.  The laws fostered shared use of the sea while deterring nefarious actions on the sea.

As a recent phenomenon, the Internet has no such common heritage, although it has become a common resource. The Internet traces its origins back to a research project completed by the United States Defense Advanced Research Projects Agency (DARPA) during the 1960s.[1] Its usage grew exponentially until it became the truly globe-spanning super network of today, reaching an estimated 3 billion people.[2] Because the United States was the primary driver of early Internet adoption, its infrastructure and usage patterns have developed in such a way that most of the world’s internet traffic passes through the United States.[3] This position offers the United States unique advantages and opportunities that the United States is unlikely to relinquish.

Global Internet Map

Other nations have more recently undertaken measures to ensure their own Internet posture also offers unique advantages and aligns with their interests. For example, China has erected “The Great Firewall” around Chinese Internet users, allowing China to censor which traffic is accessible by Chinese users.[4] China is leveraging its Internet power to further its interests at the expense of internet freedom and access. Meanwhile in the European Union, some European leaders are advocating for new Internet regulations that could bolster European tech companies’ positions against their American counterparts.[5] The fortifying of digital space will not enable the international community to adopt any sort of “freedom of the Internet” measures akin to the freedom of the seas.  Quite the opposite in fact, the trend seems to be increasing restrictions on communal use.

Even if the international community did characterize the Internet as a resource to be shared by all, regulation appears to be technically impossible, at least at present, because Internet traffic cannot be finitely quantified and observed in the same way that seafaring vessels can. Sea regulations are enforceable in large part because nations are able to observe a meaningfully quantifiable number of vessels and react by employing the appropriate legal measure. On the sea, the regulator can, for example, react to nefarious activity by boarding a vessel and searching it.

Over the Internet, the regulator would likewise have to conduct inspections in some manner but there are far too many data packets to deal with. By the end of 2016, an estimated 1,000,000,000,000 gigabytes of data will traverse the Internet annually.[6] That number is too large to fathom its significance. Finding nefarious activity among that much data and reacting appropriately while still fostering Internet freedom is technically impossible given the current state of technology. There are simply too many packets traversing the internet.

The lack of common heritage to the Internet and technological limitations on widespread enforcement make the application of the law of the sea’s principles to the Internet impossible for now. The international community must approach the Internet with a fresh perspective that considers its modern and unique characteristics. The Council of Europe’s Convention on Cybercrime, which entered into force in 2004, is currently the leading international convention in this field. The Convention identifies numerous cybercrimes that signatories must address in their domestic criminal laws, requires that certain law enforcement procedures be put into place, and demands that signatories cooperate to investigate and prosecute cybercrimes.[7] The Convention has been ratified by forty-seven states so far and signed by an additional seven.

The Convention shows some real promise because it addresses uniquely cyber issues and has seen at least some adoption. However, it still lacks global utility because it does little to address state-on-state cyber acts and lacks signatures from significant cyber powers, notably China and Russia. The lack of widespread adoption suggests cyber stakeholders with competing interests have a long way to go before they are able to agree on international regulation that works as effectively as sea regulations.

Matthew Matechik is an Evening J.D. student at the University of Baltimore School of Law (Class of 2016). He currently works full-time for the U.S. Federal Government as a Counterterrorism Analyst. He has a Bachelors of Arts (Magna Cum Laude, 2008) from Florida State University. All views in this blog post are Matthew’s own views and do not represent that of the U.S. Government. 

[1] http://www.internetsociety.org/internet/what-internet/history-internet/brief-history-internet

[2] http://www.washingtonpost.com/sf/business/2015/05/30/net-of-insecurity-part-1/

[3] http://faculty.georgetown.edu/irvinem/CCTP748/Internet-Mediology.html

[4] http://abcnews.go.com/Technology/story?id=4707107&page=1

[5] http://www.reuters.com/article/2015/06/23/us-eu-digital-letter-idUSKBN0P32AX20150623

[6] http://www.cisco.com/c/en/us/solutions/collateral/service-provider/visual-networking-index-vni/VNI_Hyperconnectivity_WP.html

[7] http://conventions.coe.int/Treaty/EN/Treaties/Html/185.htm