On Tuesday, 4 May 2021, doctoral student Anton Frey gave a digital lecture on “The reform of injunctive relief in patent law” in front of more than 100 experts.
According to Frey, the injunctive relief entails various consequential problems in view of the lack of a proportionality requirement as a prerequisite for the claim, which were explained in terms of their reasons and effects. On the one hand, the problem complex of injunctive relief for complex products was mentioned, illustrated by the example of the legal disputes between Apple and Qualcomm and between VW and Broadcom. This was attributed, among other things, to the increased incidence of intellectual property rights, the reasons for which were explained. This was followed by an illustration of the ambush situation as a further complex of problems in which often non-practising patent owners (NPEs) could build up patents as a “threat backdrop” to improve their own negotiating positions.
The more frequent occurrence of these NPEs was justified by the prominent position of German exclusive rights and e.g. the creation of an “injunction gap”. As a consequence, injunctive relief was said to have a “threat potential” that could lead to uncertainties in development and production as well as excessive use of corporate resources for litigation. Ultimately, this could prove to be an obstacle to innovation. Finally, Frey problematised the lack of consideration of third party interests in the assessment of injunctive relief and explained this using the example of the particularly relevant case group of public health.
As a possible means of counteracting this, the period of limitation in patent infringement proceedings was then cited. Already mentioned by the RG and also recognised by the BGH in the “Wärmetauscher” decision, this represented a possibility of limiting the injunctive relief from the point of view of proportionality. If use is made of this substantive limitation of the claim, which is mainly derived from Section 242 of the German Civil Code, the patent proprietor must tolerate the use of his patent for a certain period of time. The prerequisites for the period of tolerance were determined by weighting the interests of the patent proprietor and the infringer and, in appropriate cases, the legitimate interests of third parties. However, in view of the very high requirements, this possibility had not yet been used by the courts.
Finally, the draft bill on the 2nd Patent Modification Act was discussed. According to the current status, it would provide for the consideration of proportionality and legitimate interests of third parties and would also include Sections 16-20 GeschGehG as procedural means of protection in patent infringement proceedings. However, there is still considerable disagreement in politics, economics and jurisprudence.
In Frey’s opinion, the importance of the time limits for revocation will increase in the future in order to enable solutions that are tailored to the interests of individual cases. In his outlook, he also pointed to the upcoming shaping of the criteria to be taken into account within the framework of the balancing of interests as well as the possible addition of, for example, additional framework conditions. This would have the chance to eliminate the problems explained at the beginning, especially the “threat potential” and the impending obstacle to innovation as well as the lack of consideration of justified third-party interests.
In conclusion, a discussion took place under the leadership of Prof. Hoeren, in which in particular the influences of the GeschGehG, effects on neighbouring areas of law and practical problems of the legislative procedure were discussed.
The ITM would like to thank Anton Frey for the successful lecture and all participants for their active interest.
On Monday, 21 June 2021, at 2:00 p.m., two specialist lectures on copyright law will take place in the lecture Copyright Law with Professor Dr. Thomas Hoeren. First, Mr Christlieb Klages (Berlin) will give a lecture on current problems in music and film law. Then Mr. Thomas Blickwedel (Münster) will briefly present his doctoral project on exhaustion, copyright and digitisation. The event is open to the public. Registration via email@example.com
On Monday, July 12, 2021, at 2 p.m., Professor Dr. Nikolas Guggenberger, LL.M. will give a lecture/webinar on recent developments in U.S. copyright law. Prof. Guggenberger is Executive Director of the Information Society Project, Clinical Lecturer, and Research Scholar at Yale Law School. He conducts research in the areas of the intersection of law and technology, particularly platform regulation, privacy, automation of law, and the future of civil law. He is particularly interested in artificial intelligence and the uses of algorithmic decision making. Guggenberger regularly advises governmental and private institutions as an expert, especially on issues related to financial technology and regulation, data protection and media law. Further information via firstname.lastname@example.org
On Monday 28 June 2021, at 2 pm, the world-renowned and renowned conflict of laws expert Professor Dr Toshiyuki Kono will give a lecture on current developments at the interface of IPR and copyright. Prof. Toshiyuki Kono is professor and Executive Vice President of the Kyushu University in Fukuoka (Japan). His research interests include international enforcement of intellectual property rights and dispute resolution as well as the economic analysis of conflict of laws in this area. He is also Honorary President of the International Council on Monuments and Sites (ICOMOS), which acts as an advisor to the World Heritage Committee at its meetings. More information via email@example.com
This new podcast in the ITM series J!Cast with Nico Gielen and Steffen Uphues (research assistants) is about the EU Commission’s draft Digital Markets Act. With the draft, the EU is pursuing the goal of creating an appropriate counterweight to the power of large internet platforms by regulating competition in digital markets. With a view to the ongoing legislative process, some proposals are made to sharpen and improve the current draft versions. In addition, possible effects on the German legal situation are highlighted.
The International AI Conference hosted by GOAL took place on April 8 and 9 2021. Due to the special circumstances caused by the corona crisis, it was held digitally. Both internal and external speakers discussed interesting issues revolving around the governance of algorithms.
The approximately 80 participants were first welcomed by Prof. Dr. Johannes Wessels, Rector of the WWU Münster, and Prof. Dr. Thomas Hoeren. Then Assoc. Prof. Dr. Sandra Wachter of the Oxford Internet Institute gave the opening lecture on how the extensive inequality and bias that characterise Western societies are inevitably embedded in the use of data for machine learning processes. In the Q&A session that followed, Prof. Wachter also emphasised that AI should become more equitable and unbiased than human decision-makers.
The lecture was then followed by Ass. Prof. Dr. Christian Djeffal from the Munich Centre for Technology in Society at the Technical University of Munich. He spoke about how digital technologies would gradually reconfigure our democracy. Afterwards, Prof. Dr. Katharina Zweig from the AAL at the University of Kaiserslautern spoke on the topic “Is Fairness by Unawareness fair?”. In addition to the question of whether protected characteristics should be included in decision-making processes, she used various practical examples to show how human discrimination is reflected in training data sets and affects ADM systems. The topics presented by Prof. Zweig and Prof. Djeffal were more comprehensively addressed by questions and suggestions from the participants.
After a short lunch break, Reuben Binns, Assoc. Professor of Human Centred Computing at Oxford University, spoke about the challenge it poses for regulators to undertake comprehensive investigations and enforcement actions against the harmful use of algorithms. Professor Binns also shed light on the use of algorithmic methods to guide and support regulatory efforts. Next, Hanna Hoffmann and Johannes Kevekordes from ITM argued in their presentation that the growing influence of algorithms on society makes it essential that citizens are able to understand and evaluate decisions that algorithms make for and about them. To this end, they shed light on the existence of a possible Right to Explanation in the GDPR and the possibilities and challenges for implementing such a right.
An exciting discussion was followed by Catharina Rudschies and Mattis Jacobs from the University of Hamburg, who reported on their recent research findings that ADM systems are best understood as dynamic and evolving socio-technical ecosystems. The final talk on the first day of the conference was given by Frank Pasquale, professor at Brooklyn Law School of the law of artificial intelligence, algorithms, and machine learning. He presented how algorithmic accountability has become a major concern for social scientists, computer scientists, journalists and lawyers over the last decade and gave some recent examples from the public debate on socially harmful behaviour of algorithmic systems.
At the end of the first day, Professor Frank Pasquale, Professor Sandra Wachter, Professor Joanna Bryson (Hertie School of Governance) and Dr. Fabian Niemann (Partner at Bird & Bird LLP) discussed the topic: “Transparency in algorithmic decisions” in a panel discussion. The discussion was moderated by Dr Nikolas Guggenberger (Yale Law School). The panelists debated, among other things, the opportunities and risks of AI, as well as the progress and hurdles that have existed for market participants from a data protection perspective since the GDPR came into force.
The second day started with a presentation by Dr. Christina Timko from the Ruhr University Bochum. She reported on their research into how app developers’ values and views harmonised with client expectations and market business models. For this purpose, they conducted interviews with software developers and explored how app developers perceive needs for governance, consumer protection and risks from applied behaviour management, including discrimination risks. Finally, they presented possible protection measures and alternative incentives and business models.
This presentation was followed by Assoc. Prof. Dr. Linnet Taylor from the Tilburg Institute for Law, Technology and Society, who spoke about the concept of fairness in relation to AI, which could be applied in a formalised way through guidelines and technology regulation. This presentation triggered a lively question and discussion session among the participants. The main controversy was whether trustworthy AI can be created more effectively through normative or human-centred concepts (human-centred AI).
Afterwards, Prof. Dr. Joanna Bryson from the Hertie School in Berlin spoke in her lecture about what she sees as an untruth in the political discourse on AI regulation: that AI is necessarily opaque. In fact, she said, artificial intelligence is not necessarily more opaque than natural intelligence; in fact, AI can be made far more transparent by design. She shed light on the technological, sociological and economic barriers to transparency, how these are influenced by AI and the digital revolution, and what governance policies should be used to counter it. Dr Carsten Orwat from Karlsruhe University – ITAS then addressed challenges associated with risk regulation of AI and ADM in his presentation.
The lunch break was followed by the presentation of Andrew Burt, Managing Partner at bnh.ai, a boutique law firm focusing on AI and analytics, and Chief Legal Officer at Immuta. He spoke about the profound privacy and security gaps in AI systems and the three implications of this trend that are not immediately obvious, which he summarised as follows: “1. Privacy is dead. 2. so is trust. 3. and you are not who you think you are.”. In the concluding discussion round, the participants mainly discussed the proposals presented to counteract the effects of the data protection and security gaps and also discussed the advantages and disadvantages of the GDPR.
The contributions from the project partners and external speakers, as well as the controversial discussions, gave the participants some new impulses and detailed insights into the opportunities and risks of artificial intelligence. Above all, the differentiated perspectives of the participants in the course of the international dimension of the conference opened up new perspectives and broadened horizons. Already during the conference, some of the experts agreed on further exchanges in the future.
The GOAL team would like to take this opportunity to thank: the BMBF and DLR for making the event possible; all speakers for their exciting presentations; the participants in the panel discussion for the lively debate; and all conference participants who enriched the event with their interested questions and contributions to the discussion.
A detailed conference report can be found here.
Video recordings of individual lectures can be found here on the GOAL Youtube channel.
You can listen to a report by Deutschlandfunk in the programme Computer und Kommunikation in the programme of 10 April 2021 (topic: “Machtfrage: Wenn künstliche Intelligenz über Menschen entscheiden”) here.
On 04 May 2021 from 12:00 to 13:00, Mr Anton Frey will give a lecture on Zoom on the topic of “Abuse period in patent infringement proceedings”. He did his doctorate under Prof. Hoeren on this topic and has now been working as a legal trainee at the Berlin Court of Appeal since November 2020.
In his lecture, Mr Frey will present the legal institution of the period of limitation in patent infringement proceedings and, in doing so, shed light on the topic of his dissertation, in particular from a practical perspective. To this end, he will start by discussing the much-discussed case constellations of injunctive relief in complex products, in ambush situations and in the case of legitimate interests of third parties. In this context, Mr Frey would also like to deal with the government draft of a Second Act on the Simplification and Modernisation of Patent Law (RegE-2. PatModG), which focuses on a possible legal amendment of the patent law injunctive relief of Section 139 (1) PatG. Registration is possible until 28 April 2021 with Oliver Lampe by e-mail (firstname.lastname@example.org). Subsequently, the access data for Zoom will be sent out.