For those operating in the TMT sector, the pace of change in technology and in business models seems only to be matched by the pace with which regulators rush to keep up. It can sometimes feel like decisions in Beijing, Brussels, London and Washington, to name but a few, are creating unbeatable headwinds for those looking at cross-border M&A in the sector.
Deal Dynamics, the new Hogan Lovells analytical tool looking at cross-border M&A, presents little clear evidence to support that concern.
There may be some signs of a slight softening in an overall cross-border M&A market which continues to show significant activity. However, the statistics provide little indication that cross-border TMT M&A is being hit hard by specific regulatory challenges. Indeed, the figures suggest that strong fundamentals (innovation, convergence and consolidation) continue to carry significantly more weight than the regulatory headwinds.
Those are themes we explore further in the market insights accompanying those figures.
Of course, whether those trends continue remains to be seen. Will the fundamental business deal drivers remain as “hot” as they have over recent years? Will regulators across the world see M&A as a positive driver, or negative influence, on the development of domestic TMT sectors? Will deal makers and their advisors continue to navigate regulatory challenges?
Those are questions Deal Dynamics will be monitoring over the coming months.
For more analysis, visit Deal Dynamics our powerful interactive data tool with exclusive editorial content providing analysis and insights on cross-border M&A
Hogan Lovells has just launched a powerful new global cross-border M&A tool, in partnership with Mergermarket. Deal Dynamics combines interactive deal data by markets and sectors with exclusive editorial content to provide insights on cross-border M&A.
Diversified Industrials, Energy, Real Estate, and TMT sectors drive the M&A market in Q3 2018, according to new data from Hogan Lovells and Mergermarket.
The Deal Dynamics tool allows users to mine cross-border data set by date range, geography, sector, value and volume to create market snapshots, compare activity levels and assess cross-border and domestic deal flows. The data reaches back to Q1 2010 and offers global market trends across ten industries and seven regions.
Read the full press alert on HL.com here
The United States Patent and Trademark Office (“USPTO”) has published its new Final Rule on the standard of review used in construing challenged patent claims in the Patent Trial and Appeal Board (“PTAB”). Currently, the PTAB relies on the “broadest reasonable interpretation” (“BRI”) standard in construing challenged patent claims. However, the new rule directs the PTAB to rely on the person of ordinary skill in the art (“POSITA”) standard announced in the Federal Circuit’s landmark decision Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc). This standard will be used in Inter Partes Review (“IPR”), Covered Business Method Review (“CBM”), and Post-Grant Review (“PGR”) proceedings before the PTAB. The new rule also allows the PTAB “to consider” prior claim construction opinions by the courts and the United States International Trade Commission (“USITC”).
These changes apply to petitions filed on or after November 13, 2018. Thus, the new claim construction standard will not apply to cases already pending at the PTAB or those filed before that date. Therefore, parties seeking to file petitions using the current BRI standard must do so before November 13. It is sometimes thought that the BRI standard creates a broader claim construction that may be easier to invalidate. Consequently, there may be an uptick in the number of petitions filed with the PTAB in the next month to avoid the application of the POSITA standard.
The new rule received 374 mostly positive comments in response to its proposal in the USPTO’s May 9, 2018, Notice of Proposed Rulemaking. While some observers note that the POSITA standard is a more searching standard of review than the BRI standard, studies have indicated that the PTAB’s implementation of the BRI standard is no broader than the POSITA standard. Nonetheless, the new rule may lead to greater harmonization between the courts and the PTAB, creating greater consistency in decisions concerning challenged patent claims. Indeed, this change may reduce inconsistency between the courts and the PTO. This could increase predictability and certainty for parties, and may also result in district court judges granting more stays of litigation since the same standard of review will now apply in both proceedings. Of course, it remains to be seen whether courts and the PTAB will follow each other’s claim construction decisions.
On 9 August and 28 September 2018, the new Cyberspace Courts in Beijing and Guangzhou were officially opened. These new specialised courts, along with their equivalent one that was formed in Hangzhou in August 2017, are meant to tackle the quickly swelling stream of internet-related court procedures in China. The establishment of these specialised courts is an encouraging step for the Chinese internet sector as well as for IP owners: it promises a more flexible procedure, less bureaucracy in obtaining evidence and higher quality judgments, handed down by specialist judges.
The establishment of the two new cyberspace courts fits in with the government’s policy of encouraging and regulating China’s burgeoning e-commerce sector, and comes in the wake of the promulgation of China’s first E-Commerce Law, which will soon enter into force.
The rules on the operation of the Cyberspace Courts are enshrined in the Supreme People’s Court’s Provisions on Several Issues Concerning the Trial of Cases by the Cyberspace Courts, issued on 7 September 2018.
As to territorial jurisdiction, the cyberspace courts have cross-regional jurisdiction over all ‘cyberspace cases’ (see categories below) that have a “genuine connection” (e.g. location of contract, location of damage etc.) with respectively Beijing, Hangzhou and Guangzhou.
As to material jurisdiction, the cyberspace courts will handle a broad variety of cases mainly including:
- E-commerce disputes (including purchase contract disputes, product liability disputes, service contract disputes)
- Online copyright disputes (including the unlawful dissemination of films, music and other copyrighted works);
- Online defamation disputes;
- Domain name disputes; and
- Online loan contract disputes.
- The Higher People’s Courts have the power to further broaden these categories for the cyberspace courts within their jurisdiction.
The cyberspace courts act as Basic People’s Courts. This means that appeals against judgments from the Cyberspace Courts can be brought before the IP Courts, for IP cases such as copyright infringements, or before the Intermediate People’s Courts, for all other cases.
“…the Cyberspace Courts will make use of blockchain technology”
Procedure Continue Reading
The European Copyright Directive seeks to strike the right balance between the remuneration received by authors and performers, and the profits made by internet platforms when they make their works accessible. This difference is known as the value gap. Our 4 minute video summary covers the following points:
- What is it?
- What’s the issue?
- What about liability?
- What’s the challenge?
- Why does it matter?
- Where do the European Council and Parliament stand on this?
- Next steps?
Watch the summary here
For more information visit our DSM website www.dsmwatch.com.
We are excited to be holding the “Going Global” cross-practice, multi-track seminar again this year, 26 November in Osaka and 28 November in Tokyo. Our IP speakers will guide participants through the following issues:
- Advanced trademark issues: What Japanese companies need to know about prosecution and enforcement in the U.S. and the EU
This year, we are delighted to present an advanced level program that will provide an in-depth review of current trends and case law impacting Japanese companies with businesses in the U.S. and the EU. The program brings together an experienced team of practitioners who have represented some of the top name brands in the world, who will walk you through the most recent developments in their respective jurisdictions. Please join us to keep abreast of the current trends and the future of developing and protecting your brands.
Click here for more details (English and Japanese)
- Global patent updates for technology companies: Venues and issues of increasing importance for Japanese companies wishing to avoid or resolve disputes on the global stage
This year, we will share insights from our recent international and multi-jurisdictional matters (including patent-related licences, settlements and other agreements) to provide strategic advice for Japanese companies involved in patent matters. In addition to discussing recent and planned reforms to venues and patent practice, and will provide an update on key patent issues with a particular focus on standard essential patents (‘SEPs’) in the U.S., the UK, Europe, China, and Japan.
The session will be presented by an international and multi-cultural group of intellectual property partners who are qualified in the U.S., the UK, Europe, China and Japan, and also features a session presented by Theodore (Ted) Essex. Ted Essex is a former judge at the U.S. International Trade Commission (ITC)—one of the most prominent patent litigation fora in the U.S. – and will share his unique insights as a former judge.
Click here for more details (English and Japanese)
- Life Sciences Summit: Emerging issues and legal trends impacting the life sciences sphere from a both a corporate and IP law perspective.
Our U.S., Europe, and Japan-based members of our global Life Sciences team will hold a series of short, practical, and strategic talks to keep ahead of regional and international developments that will affect Japanese companies.
Please click here for details (English and Japanese)
The multi-track event also includes a session covering practical insights on global M&A transactions, as well as a Tokyo seminar dedicated to outbound energy investments.
Following the seminars, we will also be hosting a networking reception and hope that you will be able to attend both the seminar(s) and the reception.
To register, please choose the topic of your choice from the registration page.
We live in a visual society. And the business world is no different. As competition continues to increase across the globe, it’s unsurprising that we are beginning to see the revival of color in corporate branding.
The selection of a core color is a process that should not be taken half-heartedly as colors can communicate a deeper meaning about your identity. For example, red triggers emotions of passion, energy and danger, whereas blue can evoke feelings of calm and trust. Blue and red are the two most used corporate colors, so building a monopoly with one of those can be challenging, although not impossible. Like lime green in the legal sector, picking a color that is unusual for your industry will help you prove distinctiveness – and help you stand out in a crowded marketplace.
In Episode Eight of our Total Brand Care series, Burkhart Goebel (Global Head of Intellectual Property, Media & Technology) speaks with James Nurton about the importance of color in corporate branding; the steps that businesses should take in order to protect their color and create a monopoly; and the complex differences in approaches and confusing case law across countries in the European Union and beyond.
Watch the full interview on HoganLovels.com here
This will be the last episode in our first series of Total Brand Care interviews. We look forward to continuing this series next year after our Total Brand Care events in the United States. If you’ve found this series interesting, and would like more information about the upcoming events, please email: firstname.lastname@example.org
On 9 October we held the fifth in our LimeGreen Live webinar series. This instalment explored how the US and EU member states are handling trade secret protection: what the differences are, where you might face challenges and how best to proceed in securing adequate protection and enforcing your rights throughout the US and the EU.
If you missed the webinar, you can now watch the recording here.
You can also download the slides here.
The recent EU Trade Secrets Directive impacts on the way that businesses protect valuable proprietary information. The new rules being implemented in each EU country aim to create a minimum level of trade secrets protection across the EU. Certain countries will still offer stronger protection than others and challenges remain in implementing the Directive in each jurisdiction.
The US Defend Trade Secrets Act was introduced in 2016 with the aim of improving the rights of claimants to sue for trade secret infringement in federal court. Since its introduction, there have been several high profile examples of the DTSA enabling claimants to defend sensitive information and prevent its misuse.
LimeGreen Live – Our LimeGreen Live series of webinars provide further insight into some of the topics covered in our Global Intellectual Property Outlook 2018. Please register your interest in further LimeGreen Live webinars here.
Capable of identifying novel compounds for therapeutic use, AI is saving time and costs in a process that can take around 10 to 15 years and billions of pounds to complete.
For the pharmaceutical industry, which has traditionally relied on patents to protect innovation and fund R&D, this should be good news, but is an intelligent machine’s output really patentable? This article, first published in Intellectual Property Magazine, October 2018, explores just some of the issues.
Clever algorithm or autonomous robot?
“AI” is used to describe multiple technologies with a range of computer cognitive abilities, from clever algorithms, to autonomous computers with super-human intellect. Yet whilst the AIs at this latter end of the spectrum are, for the time being, confined to sci-fi, the AIs being developed for use in drug discovery are more advanced than some might think. Start-ups such as BenevolentAI and Healx are training their AIs to learn from public and proprietary resources – including scientific literature, clinical trials and compound libraries – to identify and plan the synthesis of new molecules or known molecules for new uses. Through machine learning, these AIs are able to analyse and learn from vast amounts of data to generate their own approaches to drug design. This is very different to programs currently used in biochemistry to model compounds or run simulations, which generally follow rules-based programming.
AI – not just a buzzword in pharma… Contine reading on HoganLovells.com
The Registry operator of the .US domain and the National Telecommunications and Information Administration (NTIA) have lifted a prohibition on the so called “seven dirty words” allowing them to be included in future .US domain name registrations. The decision came in the wake of the suspension of an anti-Nazi domain name containing a previously banned term.
The official TLD for the United States of America, .US, has been managed and overseen by the NTIA, which is part of the Department of Commerce, since 1998, with Neustar serving as the .US domain name registrar pursuant to an agreement with NTIA.
The domain name at the center of the dispute was being used by its registrant, Jeremy Rubin, to raise money via the sale of a “digital collectible lapel pins” paid for in Ethereum (a digital currency) to fight the extreme right in the US around the time of the rally in Charlottesville, Virginia in 2017 that saw participants chanting anti-Semitic and Nazi slogans. The domain name was initially suspended as it contained a term banned under the “seven dirty words” principle. This policy arose from a 1972 monologue by American stand-up comedian George Carlin called “Seven Words You Can Never Say on Television”. Continue Reading