Newsletter October 2022
PATENT LAW
An official date has been set for The Unified Patent Court to open its doors
The Unified Patent Court (UPC), having been underway for years, is finally becoming a reality and will open its doors on April 1st, 2023. The UPC, originally planned to com-mence in 2017, but delayed due to lawsuits in Germany, is a common European patent court set out to rule in all cases concerning traditional European patents as well as the ‘European Unitary Patent’. The new unitary patent shall have uniform effect throughout the EU (with the exception of Spain, Poland, Czech Republic, Hungary and Croatia,) and will be introduced along with the UPC agreement.
The UPC will bring major changes for patent holders and larger technology companies, as the UPC agreement entails that many patent cases must now be brought before the UPC instead of national courts. On October 19, 2022, the UPC announced it had appointed 85 judges, in-cluding 34 legally qualified judges and 51 technically qualified judges. They will take up their duties as of the entry into force of the UPC Agreement on April 1st, 2022, where the UPC will start to receive cases.
The Danish Eastern High Court upholds decision to dismiss request for preliminary injunction
On 6 October 2022, The Danish Eastern Hight Court upheld a decision made by the Maritime and Commercial High Court in June 2022 to dismiss Novartis’s request for a preliminary in-junction against three competing companies, Glenmark, Zentiva, and Viatris, as the request was based on a pending European patent application.
The High Court ruled that Novartis lacked sufficient legal interest in the matter due to the pa-tent not being formally granted by the patent authority. With its decision, the High Court has provided a clear framework in cases of preliminary injunction on the basis of a patent applica-tion, stating that if a request for an injunction is based on a pending patent application, it will not constitute sufficient and current legal interest.
BUGGE VALENTIN represented Glenmark and Zentiva in the case.
Our full article on the matter can be read on Kluwer Patent Blog here. The decision can be read in Danish here.
COPYRIGHT law
Advocate General opinion in important case concerning platform liability
On 20 October 2022, The Advocate General (AG) Szpunar issued an opinion in the Grand Production-case (C-432/21) concerning online streaming platforms and whether they are lia-ble for copyright infringement when their subscribers use VNP services to bypass geo-blocking restrictions. The AG advised the CJEU to rule that a platform operator should only be liable if either failing to implement any geo-blocking restrictions or intentionally imple-menting ineffective geo-blocking restrictions.
The case is of great importance as it will allow the CJEU to clarify to what extent a platform operator might be directly liable in connection with users’ own activities, essentially whether platforms are directly performing an act of communication to the public if users of the plat-form use a VPN to circumvent geo-blocking restrictions.
The AG concluded in the opinion that streaming services should not be liable for VPN ‘pirates’ as long as they have implemented sufficient geo-blocking technology.
The opinion can be read here.
IT law
President of the United States Joe Biden issues executive order and takes first step in commitment to the Trans-Atlantic Data Privacy Framework
The General Data Protection Regulation (GDPR) allows data on EU-citizens to be transferred outside of the EU, if the receiving country can ensure an EU-equivalent level of data protec-tion. In the Schrems I and Schrems II decisions, the CJEU invalidated two former bilateral agreements that had previously ensured data transfer between the EU and the US. The US au-thorities and its far-reaching abilities to access data on EU-citizens was central in both cases.
The EU and the US are now in the process of negotiating a new agreement, the Trans-Atlantic Data Privacy Framework, and on the 7th of October 2022, President Joe Biden signed an ex-ecutive order to implement the new data protection framework in the US. The executive order will form the basis of the Commission's assessment in its future adequacy decision.
The Danish Data Protection Agency has issued a statement reminding Danish companies that the agreement is currently not constituting sufficient legal basis for data transfer to the US, as several steps are yet to be made, such as finalizing the legal documents and adopting them on both sides.
The executive order can be read here, and The Danish Data Protection Agency’s statement can be read in Danish here.
The European Commission’s ‘Digital Service Act’ is here
The European Commission has published the Digital Services Act (DSA), a new legal frame-work to upgrade rules governing digital services in the EU. The rules specified in the DSA primarily concerns intermediaries and platforms and will include special obligations to apply to so-called ‘very large platforms’ (VLOP) and ‘very large online search engines’ (VLOSE).
According to the Commission, the purpose of the DSA is to better protect consumers and their fundamental rights online, establish a powerful transparency and a clear accountability framework for online platforms and foster innovation, growth, and competitiveness within the single market.
The DSA will be directly applicable across the EU and will apply in fifteen months or from 1 January 2024, whichever comes later, after entry into force. As regards the obligations for very large online platforms and very large online search engines, the DSA will apply from an earlier date, that is four months after their designation.
The Digital Services Act can be read here.
Marketing practice law
Danish influencer receives DKK 40.000 fine for covert advertisement
The City Court of Lyngby has issued a fine to a Danish influencer in a case reported by the Consumer Ombudsman. The influencer had posted pictures and “stories” on Instagram tag-ging a number of different companies. In return, the influencer received free products or ser-vices from the companies, such as a bicycle, a skiing trip, and a dental treatment.
The Court concluded that the influencer had failed to clearly mark the pictures as advertise-ment, which constituted a breach of the Danish Marketing Practices Act’s provision on covert advertisement.
The Court’s decision is available in a summary form in Danish here, and the Consumer Om-budsman’s summary of the case can be read in Danish here.