News Updates: December 2023

EU Agrees Upon New Regulation to Govern AI

After intense negotiations, the European Commission, representatives of the European Parliament, and the Member States of the European Union have reached a provisional agreement on the Artificial Intelligence Act (the AI Act). This instrument seeks to protect fundamental rights and democracy while also providing a conducive environment for businesses to thrive. It attempts to categorise and regulate AI systems based on their risk level and introduces transparency requirements for generative AI models. While we await the formal adoption and voting on the agreed text, a summary of the agreement can be accessed here.

‘Burger King’ Declared to be a Well-Known Trademark by Delhi High Court

In 2011, Burger King Company LLC brought an action against a restaurant operating under the trade name and trademark ‘Burger King Family Restaurant’ for unauthorised use of the former’s trademark. The long-drawn battle finally saw an end with the Delhi High Court recognising ‘Burger King’ to be a well-known trademark. In its analysis, the Court considered the longstanding usage and reputation of the mark and its variations and observed that the trademark has acquired a secondary meaning in respect of burgers. Further, the Court noted an uncanny resemblance between the two trademarks and concluded that the defendant’s website ‘www.burgerkingfamilyrestaurant.com’ imitates the well-known trademark.

Delhi High Court Restrains Virat Kohli's One8 Commune From Playing Copyrighted Songs Owned by Phonographic Performance Limited

Phonographic Performance Limited (the “PPL”) filed a copyright infringement suit against One8 Commune for playing PPL-owned songs without authorisation. It is alleged that, despite receiving a legal notice regarding the lack of a license for playing the songs in their restaurant, One8 Commune did not comply with the notice. Justice C Hari Shankar granted an interlocutory injunction in favour of the PPL, restraining One8 Commune from the unauthorized use of the songs until the next date of the hearing.

The New York Times Files Lawsuit Against OpenAI and Microsoft Over Copyright Infringement Claims

Popular American daily newspaper New York Times (the Times) has filed a suit against OpenAI and Microsoft Corporation in a Manhattan federal court citing unlawful use of the former’s articles. It alleges that the large language models of the generative AI tools, Copilot and ChatGPT were trained using “millions of copyrighted news articles, in-depth investigations, opinion pieces, reviews, how-to guides, and more”.  According to the Times, this unauthorised use has resulted in the AI tools generating output that mimics the newspaper's distinctive style. Interestingly, the suit does not mention a monetary claim. It emphasises OpenAI and Microsoft to destroy the chatbot models infringing upon their work and take responsibility for their actions. On the other hand, OpenAI contends that the lawsuit is “without merit” and that the Times is not telling the entire story.

OpenAI to Partner With Axel Springer to Encourage Inculcating the use of AI in Journalism

Amid the growing accusations of copyright infringement against OpenAI, the organisation had a licensing deal with German media company, Axel Springer. As a result of this partnership, OpenAI will use content from Axel Springer’s brands, such as Business Insider and Politico, to train ChatGPT. Users are said to benefit from AI-powered journalism by gaining access to summaries of articles from these publications.

“AI Cannot be an Inventor”, Says UK Supreme Court in DABUS Case

Dr. Stephen Thaler filed two patent applications at the UK Intellectual Property Office (the UKIPO) and designated DABUS, an AI system owned by him, as the inventor instead of himself.  The UKIPO rejected the applications, asserting that DABUS is not qualified to be an inventor under the UK Patents Act 1977. Thaler appealed to the High Court and the Court of Appeal, both of which eventually upheld the UKIPO’s decision. The case proceeded to the UK Supreme Court, which focused specifically on interpreting the 1977 Act concerning Thaler’s applications, without delving into broader questions about the patentability of AI-generated inventions or the potential expansion of the term 'inventor.' The Court ruled that an ‘inventor’ as interpreted in the 1977 Act should be a natural person; and since DABUS is an AI system, it is not qualified to be an inventor. Accordingly, the UKIPO was entitled to treat the two patent applications as ‘withdrawn’. 

Apple vs Masimo – Apple Allowed to Sell Smart Watches Following Temporary Lift of Import Ban

In June 2021, Masimo filed a complaint with the International Trade Commission (the ITC), contending that Apple had infringed upon its patents owned in pulse monitoring technology by incorporating it into the Apple Watches. In addition to patent infringement, Masimo also accused the technology giant of poaching employees. Finding Apple guilty of patent infringement, the ITC issued a Limited Exclusion Order and a cease-and-desist order, banning the import of Apple Watches into the United States. Unhappy with the decision, Apple appealed and filed an emergency motion with the U.S. Court of Appeals for the Federal Circuit, seeking an interim stay of the ITC’s Order while awaiting the US Customs and Border Protection’s decision. Meanwhile, Apple also preemptively halted the sales of the smartwatches. Following the Court of Appeals' approval of the stay, the Apple watches are now being brought back into the market. The stay is expected to remain in effect until late January, at which point the Court will determine whether to extend it.

European Patent Office Determines Moderna’s mRNA Patent as Invalid

Moderna and BioNTech locked horns in 2022 when the former sued the latter in Germany, the UK, Ireland, Belgium, and the Netherlands over one of Moderna’s patents. It contended that BioNTech’s vaccine infringes upon two important patents covered by Moderna’s vaccine Spikevax. In response, BioNTech countersued Moderna and filed an Opposition against one of Moderna’s patents, asserting it did not meet the requirements for a grant. The European Patent Office has now invalidated the contested patent. Moderna is set to appeal this invalidation.

Mickey Mouse “Steamboat Willie” and Host of Other Works Enter the Public Domain in the USA

On January 1, 2024, a host of copyright-protected works first published in 1928 entered the public domain in the USA. Among these works are notable pieces such as Mickey Mouse’s famous animated short film, Steamboat Willie, A.A. Milne’s House at Pooh Corner, Virginia Woolf’s Orlando, and Charlie Chaplin’s The Circus. Now that these works are part of the public domain, potential users are free to incorporate them into their creative content. However, it's crucial to note that the original versions of these works have entered the public domain in the USA; subsequent derivative works may still be protected under copyright. With the Steamboat Willie already being incorporated into horror movies and a video game, it will be intriguing to see how these previously copyrighted works will be incorporated into modern creative works.