More Beer, Less Money

Design fees consultation

Last calendar week the Patent Office launched a new consultation concerning proposals to modification the fees for registered designs. This follows an informal consultation which lasted until Jan of this year. The proposal, inward summary form, is every bit follows:

3.1 We suggest to cut the toll of registering novel designs where they are applied for inward a novel multiple pattern application.

3.2 We recall to offering customers a selection of paying the application fee together with publication together (in which instance the pattern volition live registered together with published every bit shortly every bit practical) or of paying solely the application fee together with giving customers the alternative of paying the publication fee after but inside the statutory maximum catamenia of 12 months. Customers tin thereby pick out when, or if, their pattern proceeds to registration together with solely pay the outstanding publication fee at that stage.

The precise order of the novel fees would live gear upward after the effect of the consultation became known.

The Patent Office is peculiarly neat to involve heed from users of the pattern system. Send your answer past times 31 May to Janet Folwell.

says: cheaper IP rights – it can’t live bad!

More on Budweiser

As the IPKat reported earlier, Anheuser-Busch is to appeal the conclusion past times the European Court of Human Rights finding that at that spot had been no breach of its correct to peaceful enjoyment of its possessions nether Art.1 Protocol ane where the Portuguese Government stripped the American fellowship of the BUDWEISER merchandise score which had non been finally registered. What this agency is that the instance volition live heard past times the Grand Chamber of the European Court of Human Rights, which is made upward of 17 judges, including the President, Vice-Presidents together with Section Presidents. The instance is listed every bit a pending instance on the court’s website, but no projected appointment is given. For those eager beavers who desire to rail the instance it’s Anheuser-Busch Inc. 5 Portugal (Application no. 73049/01).

suspects that it’s all a conspiracy to homecoming the English linguistic communication translation of the master due east Ct HR conclusion obsolete every bit shortly every bit it became available. Merpel notes that the superlative tidings storey for Budweiser on Google News has nix to produce alongside human rights. Instead it concerns the tape grab inward a Budweiser-sponsored fishing competiton.

Stop Press: Bud Country Of War Hots Up

here and here by the IPKat concluding year) that its Portuguese merchandise score application was non a 'possession' nether the European Convention on Human Rights. Thanks to Jim Davies for letting the Kat know. Influenza A virus subtype H5N1 More detailed analysis volition follow ...

Stuck Inward The Mdu; Parties Inward Courtroom - Amongst Arterial Balloons

Where information mismanagement is non material

has merely spotted a fresh conclusion of Mr Justice Rimer from final Friday, three March, inward Johnson five Medical Defence Union Ltd [2006] EWHC 321 (Ch), brought to you lot courtesy of early final month).

Angiotech owned a patent for a stent that was used inward coronary angioplasty. After a stent was inserted into a diseased artery inward the assort of angioplasty, a balloon could too thus live inflated to opened upward up the artery, keeping the artery open. The patent claimed a stent coated amongst a polymer loaded amongst the drug taxol, which inhibited the evolution of tissue that mightiness outcome inward the gradual closure of the artery (restenosis). Angiotech licensed the patent to Boston Scientific, who made stents. Conor, a swell competitor of Boston Scientific, too thus sought to revoke the patent, claiming that it was obvious inward the low-cal of the prior art.

Pumfrey J allowed the application too revoked the patent. The mere fact that no-one had used stents similar this earlier mightiness brand them new, but it didn't brand them non-obvious: you lot merely can't nation that everything obvious at the priority engagement should bring been done or contemplated either too thus or at whatever fourth dimension subsequently. Given the dry ground of the art, it was obvious to anyone who needed a stent of this nature that he would bring to role taxol. Accordingly the patent was invalid for obviousness.

's friend Luke Dylan Ueda-Sarson picks upward a flake inward the judgment where Pumfrey J says:

"61. ...Put unopen to other way, is the patent vulnerable solely if it tin live shown that the skilled individual would bring an expectation of success sufficient to receive him to contain taxol inward a drug-eluting stent, or is it sufficient that without whatever expectation of success he would exam or enshroud taxol?

62. In my judgment, this inquiry is to live answered past times assessing the contribution to the fine art disclosed past times the specification. For the reasons that I bring given above, I am satisfied that the disclosure of the specification is that taxol may live incorporated inward a stent. It does non advise that such a stent would live prophylactic or that such a stent would function to preclude restenosis...

89. Balancing the foregoing factors is non straightforward. In my judgment, the fundamental to the solution of the work lies inward the right identification of the appropriate approach to the exam for obviousness. For the reasons that I bring endeavoured to explain, I consider that the appropriate exam is whether it was obvious to exam taxol at all. The specification giving no indication of whatever likelihood of success, too giving no indication every bit to toxicity, side-effects or indeed efficacy, it is incorrect inward regulation to permit such considerations to weigh against the obviousness of testing taxol. So I conclude that the claims were obvious".

Luke comments on this:

"In essence, this seems to live proverb to me that the exam for obviousness inward this example depended on what the patentee had written inward the torso of the specification (its "contribution to the art"). Isn't the normal exam for obviousness comparison what is claimed amongst what the prior fine art teaches too what the individual skilled inward the fine art would know WITHOUT reference to the specification inward question? Is at that spot something I am missing here?".

Would whatever IPKat readers tending to comment? Merpel adds, at that spot seems to live a novel agency of dealing amongst inventive footstep inward the UK every fourth dimension whatever courtroom gives a ruling. Can nosotros delight get-go afresh amongst a build clean railroad train of guidelines too a hope that nosotros never take away larn dorsum to too through all the quondam cases again?

Blackberry Cordial; Siemens 5 Vipa Again

The Register (cyberspace). And this is what Research inwards Motion (the BlackBerry people) says.

The Register (cyberspace). And this is what posted a weblog on the European Court of Justice ruling inwards Case C-59/05 Siemens v VIPA. His practiced friend Tim Pinto - who has read the judgment to a greater extent than carefully than the Kat - observes that zilch inwards the ECJ ruling truly says that the reference for a preliminary ruling came from a merchandise grade infringement case. Indeed, it appears that Siemens sued for unfair contest nether paragraph half dozen UWG (the High German deed against unfair competition), which implements Directive 84/450, only non merchandise grade infringement. He adds:

"As y'all know, the human relationship betwixt (a) 84/450 (as amended yesteryear 97/55) as well as (b) the CTMR as well as TM Directive is controversial, so the importance of clarifying the point".

Below: the IPKat doesn't claim to cause got a monopoly of the incorrect answers ...

Many thanks, Tim - as well as you're right, of course. However, the illustration is yet a merchandise grade case. The reference sought clarification of the pregnant of Article 3a(1)(g) of Directive 84/450, which refers to practices relating to merchandise marks. Here's what the courtroom says inwards para.24:

" It follows that the create goodness of comparative advertising to consumers must necessarily live on taken into draw concern human relationship inwards determining whether an advertiser is taking unfair payoff of the reputation of a merchandise mark, merchandise holler or other distinguishing marks of a competitor".

At to the lowest degree 1 one-half of the IPKat submits that, inwards an activity for merchandise grade infringement nether Article 9(1)(c) of Council Regulation 40/94 or Article 5(2) of Council Directive 89/104, citing the taking of unfair payoff of the reputation of a merchandise mark, the courtroom would cause got taken precisely same view.

Supreme Courtroom Patent Case

CNet reports on a big patent cases that has far-reaching consequences for USA patent infringers (and no, it’s non the BlackBerry case). This fourth dimension eBay is inward the dock. Influenza A virus subtype H5N1 federal jury works life that eBay’s ‘buy it now' feature, which allows sellers to gear upward a cost that they volition bring for their goods, fifty-fifty earlier the auction has run its course, infringed ii patents owned past times MercExchange. The illustration is due earlier the Supreme Court on 29 March, only infringement is non an issue. Instead the inquiry is whether a permanent concluding injunction should automatically survive granted inward infringement cases, or if instead the populace involvement together with irreparable harm that the accused would endure should survive weighed against the patentee’s rights. eBay’s declaration is that automatic injunctions would survive disastrous for their trouble organisation together with the businesses of may other companies together with that whatever harm suffered past times the defendants tin survive made practiced past times money.

has a practiced bargain of sympathy for this approach. He wonders whether many of the minor patent owners would induce got had whatever jeopardy of realising anything similar the returns that they stand upward to realise through the accolade of damages. Being infringed could survive the best affair that always happened to them.

Klaus To The Mark; Sui Generis Rights Again

Watch that merchandise mark!

has been reading the lilliputian banking concern complaint inward Butterworths' All England Direct service on Fields v Klaus Kobec Ltd as well as another 2006 EWHC 350 (Ch), a Chancery Division determination of Richard Sheldon QC, sitting final Fri equally a Deputy Judge.

Fields (a jeweller) as well as the minute accused arranged to sell wristwatches which Fields designed as well as which were made past times GS Ltd. Influenza A virus subtype H5N1 company, KKIL, was incorporated on half dozen Dec 1995 for that real purpose. In August 1996 Fields registered the give-and-take merchandise score KLAUS KOBEC equally a UK of Britain as well as Northern Republic of Ireland merchandise mark, amongst Fields. Another fellowship (Klaus Kobec Ltd - the get-go defendant), was incorporated inward Jan 1997 and, on 1 May 1997, it took over all the assets as well as liabilities of KKIL. In August 2001 Fields registered KLAUS KOBEC equally a Community merchandise mark.

In Oct 2004 KKL placed direct orders for watches branded KLAUS KOBEC, exactly from a maker other than GS Ltd. Following that, Fields terminated KKL’s licence to usage the score as well as to demeanour on occupation concern nether the fellowship name, amongst outcome from 25 Dec 2004. Fields as well as then sued the minute defendant, the sole managing director of KKL, contending that his UK of Britain as well as Northern Republic of Ireland as well as Community merchandise marks had been infringed past times (i) the usage before 25 Dec 2004 of the score inward relation to watches non manufactured past times GS Ltd or sourced direct from Fields himself as well as (ii) the usage of the score inward relation to watches afterward 25 Dec 2004, whoever made them. The minute defendant, relying on ii statutory defences, argued that (i) KKL was the possessor of an before correct inward as well as attaching to the score as well as (ii) its usage of the score constituted usage of its ain name.

Richard Sheldon QC held, inward favour of Fields, that the statutory defense forcefulness of usage of an before correct had non been made out.

* past times the engagement Fields had registered the UK of Britain as well as Northern Republic of Ireland merchandise mark, KKIL had generated insufficient goodwill inward the score to back upward an activity for passing off. In whatever event, KKIL’s usage of the score had non predated Fields' usage of the mark.

* equally for the own-name defence, the interrogation of what constituted honest practices required the individual relying on it to deed inward a mode that was objectively fair inward relation to the legitimate interests of the merchandise score owner. In this case, KKL's continued of the ‘klauskobec.com’ domain elevate afterward christmas 2004 was not, inward all the circumstances, inward accordance amongst honest practices inward industrial or commercial matters since KKL continued to usage the site afterward Fields withdrew his consent.

* it was also clear that the minute accused personally controlled as well as procured the continued usage past times KKL of the website afterward Christmas 2004.

wonders why this rather interesting merchandise score number came before Richard Sheldon QC, a perfectly worthy deputy guess exactly who, equally tin live seen (click here and search for him), has no visible rails tape or sense inward intellectual holding matters. Are at that spot no IP barristers who are lucifer for the job? When nosotros maintain telling non-Brits that i of the advantages of litigating IP disputes inward the UK of Britain as well as Northern Republic of Ireland is that you lot teach skilled specialist judges, we're non beingness quite honest, are we? Merpel says, at to the lowest degree the guess boasts a working noesis of French, which is to a greater extent than than you lot tin muster.


Anyone out at that spot organised, corporate, extraordinary - as well as wants to sign something?

has received the next comment, which has been prepared past times Jonathan Band (Policy Bandwidth):

COMMENTS ON DATABASE DIRECTIVE POLICY OPTIONS

The undersigned organizations as well as entities appreciate the chance to comment on the policy options outlined inward the Dec 12, 2005 DG Internal Market as well as Services Working Paper on the Directive on the Legal Protection of Databases. We stand upward for the interests of engineering scientific discipline as well as fiscal services companies; libraries, scientists, scholars, as well as educational institutions; as well as consumers. We both attain databases as well as usage databases compiled past times others. For the past times decade, nosotros accept opposed the adoption of overly protective database legislation inward the United States. For the reasons laid forth below, the sui generis correct should live withdrawn.

The authors of the Working Paper are to live commended for their frank criticism of the “sui generis” right. The Working Paper candidly concedes that the “sui generis” correct required past times the Directive has non had its intended effect: it “has had no proven impact on the production of databases.” Working Paper at 20. The Working Paper acknowledges that “[i]nterpreting the precise ambit of the the ‘sui generis’ correct has proved difficult,” as well as that the “’sui generis’ provisions accept … created considerable legal uncertainty….” Id. at 15. Further, the Working Paper observes that “the complexity of the ‘sui generis’ authorities may accept caused confusion amidst sure users, inward item the academic as well as scientific community.” Id. at 22.

Alarmingly, inward the years since the adoption of the Directive, the European part of the global database marketplace has decreased relative to that of the United States, as well as the ratio of European to U.S. database production has decreased from 1:2 to 1:3. Id. The Working Paper wrestles amongst a seeming paradox: During the menses inward which the intellectual holding protection for databases inward the European Union exceeded the protection available inward the United States, the European part of the global database marketplace decreased relative to that of the United States. This marketplace information runs opposite to the widely-held supposition that “more as well as to a greater extent than layers of IP protection agency to a greater extent than excogitation as well as increment ….” Working Paper at 24. Indeed, this information seems to propose that increasing intellectual holding protection beyond a sure indicate really provides a disincentive for excogitation as well as creativity.

Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit i time observed that
[o]verprotecting intellectual holding is equally harmful equally underprotecting it. Creativity is impossible without a rich populace domain. Nothing today, probable null since nosotros tamed fire, is really new: Culture, similar scientific discipline as well as technology, grows past times accretion, each novel creator edifice on the plant of those who came before. Overprotection stifles the real creative forces it's supposed to nurture. White v. Samsung Electronics, 989 F.2d 1512 (9th Cir.)(Kozinski, J., dissenting), cert. denied, 113 S. Ct. 2443 (1993).

Judge Kozinski stressed that “intellectual holding rights aren't free: They're imposed at the expense of futurity creators as well as of the populace at large.” For this reason, “intellectual holding police is total of careful balances betwixt what's laid aside for the possessor as well as what's left inward the populace domain for the repose of us….” The limits on intellectual holding rights permit the populace usage something created past times someone else, exactly they “are necessary to maintain a gratis surround inward which creative genius tin flourish.”

One of the critical balances inward intellectual holding police is that copyright protection inward a database extends entirely to the master copy alternative as well as organisation of the facts inward the database, exactly non to facts themselves. This regulation of copyright police is recognized inward the U.S. Supreme Court’s determination inward Feist v. Rural Telephone, 111 S. Ct. 1282 (1991); inward Chapter II of the European Union’s Database Directive; inward Article 10.2 of GATT-TRIPS; as well as Article v of the WIPO Copyright Treaty. The exclusion of copyright protection for raw facts reflects an awareness that facts are the building-blocks of knowledge. If a publisher could exert a holding correct inward facts, that publisher could forestall the usage of those facts non entirely inward novel information products, exactly also inward inquiry inward all fields of human endeavor. This, of course, would undermine the role of intellectual property: promoting, inward the words of the U.S. Constitution, the progress of scientific discipline as well as the useful arts.

The “sui generis” correct runs opposite to this policy past times coming “precariously unopen to protecting basic information.” Working Paper at 24. By preventing competitors from reusing information inward novel database products, the sui generis correct restricts the evolution of innovative databases. Because the sui generis correct overprotects databases, it is no surprise that the European database manufacture has lost marketplace part to the the States industry, where facts rest inward the populace domain.

The 2004 decisions of the European Court of Justice withholding the sui generis correct from databases consisting of facts “created” past times the publisher sure as shooting cut the accomplish of the sui generis right. However, equally the Working Paper notes, “other industries similar the publishers of directories, listings or maps, rest protected equally long equally they do non ‘create’ their ain information exactly obtain these information from others.” Working Paper at 13. Thus, many databases inward Europe rest off limits equally the source of information for novel products.

Since the sui generis correct places European companies at such a competitive disadvantage to U.S. database companies, i mightiness await the undersigned U.S. based entities to promise that the Commission decides to leave of absence the sui generis correct unchanged. However, many of the undersigned entities engage inward operations inward Europe, as well as so accept been adversely affected past times the sui generis right. Moreover, U.S. users accept been harmed past times the irksome increment of databases based on European information, specially inward the fields of finance as well as science.

Finally, the existence of the sui generis correct inward Europe gives impetus to the efforts of the small-scale number of publishers that seek the adoption of overly protective database legislation inward the United States. These publishers typically are sole source providers that seek to command all downstream uses of the information contained inward their databases. These publishers claim that inward guild for them to do goodness from the reciprocity provision of the Database Directive, the the States Congress must enact legislation establishing sui generis rights inward the United States. Since 1996 Congress has resisted these demands, exactly the House of Representatives passed overly protective database legislation twice inward 1998, as well as the House Judiciary Committee has endorsed such legislation on ii other occasions. So long equally the sui generis correct exists inward Europe, nosotros volition accept to fight the enactment of similar legislation inward the United States.

Accordingly, nosotros respectfully propose that both database developers as well as users inward both the European Union as well as the the States would do goodness from the withdrawal of the “sui generis” right.

Jonathan Band wants signatures as well as writes: "I'm looking for companies, institutions, associations, as well as police professors -- non ordinary individuals". So if you lot qualify as well as are suitably motivated, electronic mail Jonathan through the link above. , who is silent quite undecided on the sui generis issue, is pleased that at that spot is some serious debate as well as analysis at last, since he remembers how the sui generis correct was foist upon an unsuspecting Euro-world past times the European Commission. Merpel, however, is silent wondering why police professors are non 'ordinary individuals' ...

Rats As Well As Trolls

smells a rat

Bad word for lovers of pine-scented contest everywhere. WCAX reports that Texas-based Corndog Cards too Novelties has reached an out of courtroom village alongside Car-Freshner Corporation, producers of the tree-shaped air-fresheners for cars. Under the price of the agreement, the Texas companionship volition destination making greetings cards which characteristic a cast like to that of the tree.

didn’t realise that tree-shaped air-fresheners were an indication of root pointing dorsum to a unmarried company, maybe because he’s non a driver. He wonders if his readers did.

Time for copyright trolls?

has read inwards the New Zealand Herald of yet around other small-scale writer claiming that the big boys own got stolen his idea. This fourth dimension it’s Gavin Bishop, writer of 24-page children’s mass The Secret Lives of Mr too Mrs Smith. He claims that 20th Century Fox has infringed his copyright past times making the cinema Mr too Mrs Smith. While Bishop’s Smiths are spies, Fox’s Smiths are assassins. Bishop is nonetheless deciding what activeness to take.

says that past times directly we’re all familiar alongside the persuasion of the patent troll. Perhaps nosotros involve a novel concept – the copyright troll – to designate the band of authors who claim, on spurious bear witness that oft seems to rely on copyright inwards ideas too the loosest of plots, that big evil baddies own got stolen their stories. Ever the pragmatist, Merpel points out (i) Smith is actually rather a mutual cite too (ii) does it actually assistance Bishop to compare his children’s mass to a even close assassins containing rigid linguistic communication too sexual content?

Apologies

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