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Education and Training

Within the framework of the Strategic Plan 2016-2020, the EUIPO will be providing a course addressed to IP Professionals that will cover European trade mark and design law. Upon successful completion of the course, the participants will receive certification from the Office. The project is targeted at all IP professionals already in practice who are representatives before the Office in European trade mark and design procedures, or who could be entitled pursuant to Title IX - Section 4 of EU Trade Mark Regulation and section 4 of the Community Designs Regulation. The course will be held in English only and will run from September 2018 to June 2019, with a total of approximately 150 hours of tuition, combining e-learning, webinars and two 3-day face-to-face sessions at the EUIPO in Alicante, Spain. Apply between 15 May 2018 and 30 June 2018 here. More details: here.
Fashion expert

Fashion Law Businesshas announced a summer Fashion Law Masterclass, which will be hosted at the distinguished Condé Nast College of Fashion & Design on 22 June 2018. The session will take the participants through the law of intellectual property in the fashion industry and provide an introduction to trademarks, copyright and design rights as it applies to the business of fashion. The workshop is geared towards giving industry professionals, emerging designers and the next generation of fashion law experts insight into the basics of fashion law, the legal issues to consider when starting a fashion brand, and an understanding of those legal issues currently making a mark on the industry. Enrolment is available here.

Events

Academy of European Law is organising a conference entitled ‘Big Data: Consolidating the EU Legal Framework in the Digital Economy’, which will take place in Brussels on 27-28 September 2018. Key topics include: free movement of data, distinction between personal and non-personal data, intellectual property in the era of big data, and future EU strategy on access, fair use and sharing of Big Data. Information about fees and registration is available here.

The Hague Agreement comes into effect in the UK on 13th June 2018, and just five days later, on 18 June, MARQUES is hosting a seminar in collaboration with WIPO. This is the latest in its series of events on Mastering The Hague Agreement, following seminars in Munich, Paris and Copenhagen. The seminar will provide an introduction to The Hague System, and detailed discussion of the different substantive requirements in key jurisdictions such as Japan, Korea and the US. The registration fee is £100 (MARQUES members) or £125 (non-members) and registrations can be made online here.

Tilburg Institute for Law, Technology, and Society and the Tilburg Law and Economics Center, are organising a seminar ‘Data Access in the European Digital Single Market’, which is supported by the European Law Institute under its Data Economy project. The event aims to connect academic researchers, industry representatives and policy makers in discussing considerations at the heart of ongoing debates regarding the implementation of data access across different sectors. When: 24 May 2018; where: Regus Meeting Room at the 18th floor of the Brussels IT Tower, Avenue Louise 480, 1050 Brussels, Belgium; agenda and free registration: here.

CITMA President’s Summer Reception will be held on 4th July, 6-8pm in London. The event will be marked by the inaugural speech of the new CITMA President, who will set out her vision for CITMA and the profession over the coming two years. Details and registration: here.

Publications

Celebrating diversity
ICC has published a report on Design Protection for Graphical User Interfaces. This report gives guidance to businesses and policy makers, as GUIs and other forms of digital design become increasingly important in the digital economy. Drawing from contributions of experts from different regions, the report reviews the requirements and practices in 24 jurisdictions, including information on both prosecution and enforcement aspects of GUI designs. The report was recently presented to the 39th session of the WIPO Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications.

It may not easy to find good-quality English language resources for Chinese intellectual property practice. NiuYie China IP Blog  seeks to fill this void. It features perhaps the largest collection of China IP articles (approaching 900 pieces), all in English, carefully selected by Dr. Jian Xu, an active blogger on China IP who personally wrote over 150 of the articles.

Initiative

IP Inclusive promotes diversity and inclusion in the IP profession and invites all who consider themselves part of the IP profession to join a campaign to celebrate World Day for Cultural Diversity, on 21 May. More about the initiative: here.

Image credits: fio_even and Sylvia Chuang
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The IPKat's usual overview of various events and other IP related news!

Books

IPKat’s own Frantzeska Papadopoulou is the author of the freshly published book The Protection of Traditional Knowledge on Genetic Resources, published by Elgar. This book is the first of its kind to combine a novel theoretical framework with the practical applications of the combined theories of Rawls and Coase. A review of the book is forthcoming -- congratulations to Frantzeska!

Events

Questel, a company providing intellectual property databases, will organize two interesting events in the near future: a seminar + training event Stockholm from 29 to 31 May and in Frankfurt on 6 June to discuss IoT. For more information on the events see here and here.

The University of Warwick will host on 14 June Plant Variety Protection Debates: Connecting Law Science and Social Science, a forum where jurists, scientists and social researchers can meet and exchange their knowledge on the topic. The participants will also discuss the pending review of the plant variety provision of the TRIPs Agreement. For more information on the event and on registration, see here.

UNION-IP is delighted to announce that Baron Neuberger of Abbotsbury will be the speaker for their 2018 Summer Drinks Event on the evening of Monday 18 June at The Royal Society in London. Having presided over major decisions impacting both on IP law and practice, not the least Actavis v Eli Lilly, Baron Neuberger will be sharing his insights and reflections on “IP in the UK and Europe – a view from the top”. Full details and tickets can be obtained through Eventbrite - book early to avoid disappointment!

All the plant variety a Kat needs

On 19 June, J A Kemp will host an IP Symposium in Copenhagen on How to Protect and Exploit Pharmaceutical Intellectual Property. The event will offer both talks and workshops addressing the key issues affecting pharmaceutical innovation in both Europe beyond. The event is free. More information on the event and registration here.

The School of Law of the University of Geneva will organise the fist IP Researchers Europe Seminar (IPRE) on 29 June at WIPO. The seminar IPRE "aims to promote scholarly exchanges in the field of IP, to build the engagement between scholars and policy development, and to provide an opportunity for selected IP scholars to present and discuss their work-in-progress with IP experts and other IP researchers, with an emphasis on including European-based research of wider comparative and international interest". For more information on the seminar  see here.

To end the summer on a high note, the AIPPI World Congress will take place in Cancun from 23 to 26 September. You can find out more about the programme (subject to changes) here and additional information on the congress and registration here

The William S. Boyd School of Law (University of Nevada) will host the Intellectual Property Rights Enforcement at Trade Shows conference on 4 October. The conference will focus on discussing best practices for intellectual property rights enforcement at trade shows. For more information on the conference and for registration, see here. Marketa Trimble of the Technology & Marketing Blog also talks about the conference and this area of IP in general.

Papers/Initiatives

On 25 April, the European Commission published both the Study in Support of the Evaluation of the Database Directive, the second evaluation on the 1996 Database Directive and the Staff working document and executive summary on the evaluation of the Directive 96/9/EC on the legal protection of databases, discussing whether the results of the previous evaluation are still valid. The Database Directive will not be amended for a while, but the EC, in its Evaluation re-use of Public Sector Information (or, in short,"PSI") has clarified the relationship between the Database Directive and re-use of PSI.

On World Intellectual Property Day (26 April), the Intellectual Property Office of Singapore launched the new FinTech Fast Track initiative. Under this initiative, FinTech patents can be granted in as quickly as six months, compared to two years for normal applications. The objective is to support the growth of Singapore’s FinTech sector and help businesses bring their FinTech innovations to the market more rapidly. This will also help advance
Singapore’s Smart Nation agenda.


Also contemporaneous with the World Intellectual Property Day, Spinal Tap’s Fairness Rocks platform has been renewed as a Campaign, with the launch of its website. It is designed to be a useful source of information for journalists and the creative industry alike.
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Mexico has recently put into effect a number of provisions regarding diverse IP issues that merit close attention. Kat friends Edith Rivero and Veronica Avilez of Dumont have summarized these developments for IPKat readers.

Amendments to the Mexican Industrial Property Law involving patents, utility models and industrial designs came into force on April 27, 2018. The amendments are directed to attempting to fix certain perceived shortcomings related to lack of information to third parties, the prosecution time for a patent application, and the system for prosecution and maintenance of industrial designs. A brief discussion of these amendments is provided below.

Amendments related to availability of information

Publication of patent applications has been limited to bibliographic data and the abstract of the invention. Utility model and industrial design applications, as well as divisional applications of any type, have not been published until grant. This limited information led to uncertainties regarding important aspects of the application process. For example, third parties were unable to know when an application was abandoned, withdrawn, rejected, or simply pending longer than usual. Applicants had, and still have, no obligation to provide notice of the filing of a divisional application in parent cases. Thus, even if complete files for granted parent cases have been accessible by third parties, in certain circumstances, such as pharma-related patents, it was not totally clear whether a further divisional application covering relevant matter was filed before grant of the parent case. Against this backdrop, these amendments bring the Mexican system in line with leading jurisdictions on this matter.

An amendment directed to optimize the prosecution time of patent applications

This amendment relates to third party observations, which can be submitted by any person against the patentability of an application within a fixed term after a patent application has been published. The term, within which the examination cannot start, has been reduced from six to two months. According to official information, only 0.173% of patent applications filed between 2011 and 2017 attracted third party observations, but all applications (approximately 82,000 in total) were delayed for six months to wait for the statutory time to expire before proceeding to examination. The amendment directly addresses this matter, allowing, at least in principle, for reduced patent prosecution times.

New concepts for industrial design examination

Novelty for industrial designs is now defined in terms of “independent creation” requiring that a design must be different to a “significant degree” from already known designs or a combination of features of known designs; both of these concepts are new to Mexican IP law, having been adopted from the European system. Still, while the addition of the concepts is meant to impact on examination and litigation, the Patent Office has indicated that, for the time being, it will not significantly change the methodology for assessing novelty of industrial designs.

If this transpires, Mexico might lose an opportunity to update the substantive grounds for granting and enforcing industrial designs, which changes are not only desirable to improve the system but are required by the amendment. Nonetheless, the mere existence of the possibility for such changes is seen as positive, since they will rest more on a change to the criteria for examination than on a further amendment to the law (given the relatively long time it takes for the latter).

Industrial design applications should now indicate the product to which the design is intended to be applied, instead of just indicating the type of products, as was previously the case. On the one hand, this provision has the potential for limiting the scope of protection of industrial designs granted under the new provision. On the other hand, it might bring more certainty to third parties, specially to players in the same industry.

New regime for the validity of designs

The term of protection of industrial design registrations has been modified from a non-extendable 15-year term to a renewable 5-year term. Renewals will be available by subsequent five-year periods up to a maximum of 25 years. Pending industrial designs as well as already-granted industrial designs will be able to benefit from this change to the renewal system. Annuities for registrations in force are to be paid for the remainder of the applicable 15-year term under the current rules, generally, a quinquennium (five-year) system. Industrial design registration renewals will be published by the Patent Office, creating the necessary certainty for third parties.

This new system is particularly advantageous for owners, not so much because of the renewal system itself, which will not materially impact on the way maintenance will be handled, but because of the possibility of extending the term of protection. As with any renewal, owners will be able to choose which designs are worth spending on to extend the term of protection time, and which should be left to fall into the public domain. Practitioners and stakeholders of the Mexican IP system have been clamoring for a complete remake of the laws and regulations governing patents, utility models and industrial designs. While these amendments do not completely satisfy these expectations, most of these provisions seem to be directed to improving the system.

Photo by Sémhur and is licensed under the Creative Commons Attribution-Share Alike 4.0 International, 3.0 Unported, 2.5 Generic, 2.0 Generic and 1.0 Generic license.
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Charles de Gaulle
Portrait by Donald Sheridan
Last month, the Conseil d’Etat, the highest administrative court in France, declared that the 313 manuscripts and telegrams written by Charles de Gaulle between 11 December 1940 and 11 December 1942 were official public archives belonging to the  state of France (see herein French). As a result, the manuscripts written by the former French President and leader of the Resistance during the Second World War will soon be made available to the public as opposed to becoming part of a private collection. For many historians and public domain enthusiasts, the decision reads as a win.  The dispute was not one of copyright but rather of heritage law, leaving the status of these archives in relation to the (copyright) public domain in need of further clarification. Indeed, war-time copyright material is eligible for a special type of protection in France… Read on for more on this. 


Conseil d'Etat, Paris
The de Gaulle decision reminds us that many of the legal issues regulating the public’s access to historical documents are not just a matter of copyright. In this case, it started with heritage law under the French heritage code (here in French). Article L 212-1 of the Heritage Code specifies that “public archives are inalienable” and “they cannot be owned, either by operation of law or proprietary disposition.”. To enforce this principle, the state may rely on claim under the state archival right that allows demand transfer to the public archive without having to compensate private owners for their loss. 


The previous possessor of de Gaulle’s writings, a company called Aristophil, attempted to defend its title in the manuscripts by arguing that at the time that they were created, namely between December 1940 and December 1941, the Republic of France per se was not a sovereign state, due to the German Occupation that took place between the years 1940 and 1944. The company argued that during this period of occupation, the French Republic ceased to exist, and therefore it could not claim ownership over the works created by its leaders, civil servants, army or any other official representatives. Both the Court of Appeal and the Conseil d’Etat rejected this view, stressing that subsequent decrees declared that the French Republic had maintained its legal existence and sovereignty even during the Nazi occupation. As a result, standard rules regarding ownership over official and historical documents applied without exception.
Champs-Élysées (Paris) under
Nazi occupation

Nothing was said in the case about copyright and such a point of law, if raised, would have most likely been heard and debated before  civil, rather than an administrative jurisdiction  per the applicable laws of jurisdiction and procedures in France.  Declaring documents as ‘national public archives’ is not synonymous with to declaring them be part of the ‘public domain’ within the meaning of copyright. Whilst the telegrams written by de Gaulle may not be within the scope of copyright protection (they may have been too short to constitute the requisite originality as per L 112-4 of the French IP Code), the manuscripts would most likely have been eligible to such protection. When should we expect the expiry of copyright in the manuscripts? 


One might expect to have the usual copyright term apply – nothing more, nothing less. However, for material under copyright during the wars, there is a little bit more to add to the simple calculation of the current standard term of protection (the life of the author plus seventy years). As such, the de Gaulle case draws our attention to one of the quirks of French droit d’auteur.

In both 1919 and 1951, the French government introduced special provisions extending the term of protection for works published during the First and Second World Wars (see Article L223-8 and Article L223-9 of the IP Code respectively). The idea was to compensate right-holders for any disruption in the commercialisation of their work caused by the war.

As a result, the current Article L223-9 of the French IP Code extends the term of copyright protection by 8 years and 120 days for works published before 1 January 1948 and which did not fall into the public domain by 13 August 1941. The provision reads as follows:

“The rights afforded by the above mentioned Act of July 14, 1866 and by Article L123-8 to the heirs and successors in title of the authors, composers and artists shall be extended for a period equal to that which elapsed between September 3, 1939, and January 1, 1948, for all works published before that date and which did not fall into the public domain by August 13, 1941.”

Who says cat can't count?
Cartoon by Metzger
Some of the manuscripts recently acquired by the French government would fall within this category as they were written between 11 December 1940 and 11 December 1942.

At that time, the duration of protection was 50 years following the death of the author (here, 1970) bringing us to 31 December 2021. However, the term of protection was harmonised at the European level and extended to 70 years following the implementation of the 1993 Term Directive (No 93/98/EEC) of 29 October 1993, which has since been repealed and replaced by the 2006 Directive. This 20-year year extension would bring the copyright expiry date of the manuscripts to 31 December 2041 (as per Article L 123-4referring to L 123-1).

The question is, then, should the war-time term extension be applied, with the result that it will not be before 1 April 2050 that one can reproduce the documents without risking infringement. In this case it would seem that the answer is no. In 2007, the Court of Cassation (hereand here) concluded that the war-time term extension was not to be added to the seventy-year term (although exceptions apply in cases where the regime in force before the 2006 EU harmonisation is more favourable to right-holders).

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Can Kats come to the wedding?
Photo: Steve Jurvetson
This coming Saturday - 19th May - the wedding of Prince Harry and Ms. Meghan Markle takes place at St George's Chapel, in Windsor. In the run up to the royal wedding, there's really only one question on all our minds of course, what about the Royal IP?! After the Lord Chamberlain’s Office announced that the rules of use have been "temporarily relaxed", Dr Janice Denoncourt (Senior Lecturer, Nottingham Law School) kindly provides us with the full details:

Global super brand Queen Elizabeth II and members of her family are the subject of worldwide fascination.  The forthcoming marriage of Prince Harry and Ms Meghan Markle to be celebrated on 29 May puts intellectual property (IP), branding and image rights in the spotlight.  Love them or loathe them, the British Royal Family is a unique selling point of the UK.  Business analysts predict a worldwide TV audience of 1 billion, while royalty devotees will inject millions of pounds into the U.K.’s economy. The wedding of Prince Harry, the fifth in line to the throne, presents an array of commercial opportunities in terms of souvenirs, memorabilia, marketing and advertising.  It’s not surprising that many businesses and organisations will want to associate their goods and services with the happy historic event for commercial purposes in the UK and beyond. 

However, like other significant events such as the Invictus Games, Royal Ascot and Wimbledon, special legal rules regarding the use of IP and image rights apply. In other words, super brand management is on the agenda. The Lord Chamberlain, the Earl Peel, is the most senior officer of the Royal Household.  His office produces definitive guidelines on the use of the Royal Arms, Names, Images, Royal Devices, Emblems and Titles and of photographs, portraits, engravings, effigies and busts of The Queen and Members of the Royal Family. Normally, using Royal names or Royal residences on products is unlawful if the use of the name suggests the goods have some connection with or are supplied to a Member of the Royal Family. These rules are only relaxed on occasional events of national importance. Although established souvenir firms will have ‘Operation Royal Wedding 2018’ underway, smaller, less IP-aware businesses will be relieved to learn that the Royal Wedding is indeed nationally important. They can relax, but must remain on ‘best commercial behaviour’ so to speak. 

The Lord Chamberlain’s Office, announced that: 

“In line with previous practice for Royal weddings, Prince Harry has been pleased to approve that the rules governing the commercial use of Royal Photographs and Insignia may be temporarily relaxed to allow their use on souvenirs commemorating the Engagement and Marriage of HRH Prince Henry of Wales and Ms Meghan Markle.”

This means that approved photographs of Prince Harry and Ms Meghan Markle and the full Coat of Arms of HRH Prince Henry of Wales (known as ‘devices’) are allowed on Royal Wedding souvenirs.  In other words, such use will not infringe. Souvenirs specifically designed to commemorate the Marriage can use phrases such as: “To Commemorate the Engagement of HRH Prince Henry of Wales and Ms Meghan Markle, 27th November 2017” or “To Commemorate the Marriage of  HRH Prince Henry of Wales and Miss Meghan Markle, 19th May 2018”. 

Beware Royal IP Etiquette!
It is not quite a free for all. To qualify, souvenirs must be in ‘good taste’; free from any form of advertisement; and carry no implication of Royal custom or approval – otherwise such use might infringe Prince Harry and Ms Markle’s IP and image rights. There are specific restrictions on certain types of souvenir.

Textiles
Promise not to get any fur on the dress
Photo: Marcos de Madariaga
Royal Insignia MAY NOT be used on textiles (e.g. clothing, T-shirts, tea towels and aprons) but are permitted on tasteful carpets, cushions, wall hangings and head scarves.

Containers and Packaging
As a special exception, containers or receptacles of merchandise will, on this occasion, qualify as souvenirs provided that they are metalware, ceramic or other semi- indestructible material as long as they are specially made for the Royal Wedding. The Royal symbols used on containers or packaging are limited to approved photographs of Prince Harry and Ms Meghan Markle and the use of Prince Harry’s Coat of Arms is specifically forbidden on containers and packaging.

Commemorative Coins
As a special exception for the Royal Wedding, commemorative coins (i.e. coins which are not currency) and medallions will qualify as souvenirs.

Decorations
The Royal devices may be used in decorations celebrating the Royal Wedding, although not in any way that might imply Royal Patronage or approval of any firm or its products.

Flags
Prince Harry’s Arms may not be flown as flags.

Use of approved photos and images
Approved photographs can be obtained from most photographic agencies (e.g. Getty Images, a digital media platform for photography and editorial images, Shutterstock).

However, Kensington Palace owns the copyright in the official engagement photographs. Alexi Lubomirski, the same man who shot their engagement, has been appointed the official Royal Wedding photographer. Permission to use Engagement and Royal Wedding images must be cleared by the Royal Household before use and will be authorised only for news editorial purposes and NOT for use on souvenirs, or memorabilia and the like. If in doubt, further IP and image rights guidance can obtained by writing directly to The Lord Chamberlain’s Office Buckingham Palace, London, SW1A 1AA or by email: royalwarrants@royal.gsx.gov.uk. No doubt, good IP etiquette will be appreciated, while bad IP manners will be abhorred.

With so much criticism of powerful IP owners in the public domain, it is heartening to see Prince Harry and his American bride-to-be continuing the royal tradition of sharing their valuable IP and image rights with the public for this special occasion. This approach is an example of a balanced modern global superbrand management.

Beyond the United Kingdom
With an American bride-to-be, and the blissful couple having holidayed in Botswana at the start of their relationship, the “reMarkable” Royal Wedding effect will no doubt extend to America, Africa and the Commonwealth countries. However, IP rules above are territorial and will apply only in the UK unless the Royal Family has made formal arrangements in those jurisdictions. 

See the full 2018 guidelines here.


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IPSOC, the society for junior IP lawyers, recently had the pleasure of a Q&A with Mr Justice Birss.

The questions covered a wide range of issues from recent developments in the law of patents, copyright and image rights to FRAND licensing. The only topic we sadly didn’t touch on was bees but fear not, you can read about his bee keeping skills here.

After an introduction by Anna Rawlings, Birss J was reminded that his career began on the consulting side of Arthur Anderson (now Accenture).  Anderson is an interesting brand story.  There was an arbitration between the accountancy and consultancy sides of the business as to which part should be entitled to use the name ARTHUR ANDERSON.  The consultants won but the victory was short lived. The Enron scandal hit shortly after the arbitration was resolved. As Anderson were Enron's accountants, the brand was seriously tarnished and the Accenture rebrand of the consultancy business began. A nice introduction to the evening and a reminder of both the value of a brand and how quickly that brand value can vanish.

Image rights

Before getting into the Q&A, Birss J gave a quick overview of the recent changes in the world of image rights in England.  Image rights in England tends to be based on the law of passing off and more specifically false endorsement.  Birss J presidedover both the Betty Boop case (about character merchandising) - see the IPKat here - and more recently the Rihanna T shirt case - the IPKat's analysis of the Court of Appeal decision is here.

In Birss' view, his decisions did not represent a sea change in the law but rather a willingness to consider the evidence  that a significant number of people had been deceived.  As he put it "if people have been conned, that’s passing off".

In his view, a dedicated image rights statute was not necessary as the law is sufficiently flexible to get you to the desired result. If you don't have a reputation like Rihanna, privacy and data protection can be used instead. The damages may not be great but the desired result of stopping the use of the image can be achieved.

Are we out of step with the rest of Europe where personality rights and parasitism offer stronger protection over image rights? 

We’re fine as we have lots of different means of reaching a fair conclusion. As Birss J noted, it’s not a competition to see who can offer the most rights!

Patents and FRAND licensing

The discussion then turned to patents and FRAND licensing.  Birss would not be drawn on his views of the Supreme Court's decision in Eli Lilly v Actavis (see the IPKat here - the 109 comments on the post is a good indication of how controversial this decision has been). 

Another recent controversial decision concerns the Unwired Planet FRAND litigation (see the IPKat here). This is about the terms on which standard essential patents should be granted. One of the audience questions concerned the decision to grant a global FRAND licence. As Birss noted, if patent licences are mostly global - this was the clear conclusion from the evidence he was provided - that’s a FRAND feature which should be taken into account when deciding what are FRAND terms. As a matter of policy, he noted that having disputes litigated in one jurisdiction and applying elsewhere is normal and accepted outside the world of IP.  IP is one of the last areas of law where we worry about what’s being said in other jurisdictions.  He recalled the late night headaches that parallel jurisdictions for IP rights can create.

Designs

Designs were not given much attention but, as he noted, they are really important for businesses but we have overcomplicated the rights available by having too many options and not enough clarity.

Own name defence

The recent CJEU reference in Skykick (see IPKat here) was given a name check.  It remains to be seen what will be decided regarding the removal of the own name defence for companies.  In Birss' view, the own name defence is fair enough for people who should be able to trade under their own name (unless restricted contractually from doing so) but it is more problematic with a company where you can choose the company name.  [Warning - Birss J made it clear at the start that any comments should not be taken as an indicator of how he will decide a case in the future. So take these comments with a pinch of salt.]

IPEC and Shorter/Flexible Trials Schemes

IPEC has levelled the playing field for IP protection “it’s really cool”.  The great thing about IPEC is that now parties of all sizes can be represented in court and get the attention they deserve.

After the event Birss J commented on the two case management schemes which are currently being piloted in the Rolls Building: the Shorter Trials Scheme and Flexible Trials Scheme. Both have been very well received and embraced beyond the world of IP. They will hopefully be rolled out on a permanent basis before too long.

Shout out to Osborne Clarke for kindly hosting the event.
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Who's responsible for making
this video available:
(a) the user-uploader
(b) YouTube
(c) both of them
(d) Merpel
(e) no one
Can YouTube be considered primarily responsible (and, therefore, potentially liable) for the making available of user-uploaded content through its platform? In other words: can YouTube be considered as directly making acts of communication to the public?

This is the crucial question Germany’s Federal Court of Justice (BGH) will need to address in a case (I ZR 140/15) that was heard last week. The decision is due on 13 September.

The case

As summarized by the BGH press office, the claimant in this case is a music producer who has sued Google/YouTube over the unauthorized making available, on the defendants’ platform, of videos containing musical works from the repertoire of soprano Sarah Brightman. The claimant had signed an exclusive contract with this singer in 2006, allowing him to exploit recordings of her performances.

In 2008 unauthorized videos featuring Brightman’s performances were made available on YouTube. Apparently, following a takedown request, a number of videos was removed from YouTube, but infringing material was made available once again shortly afterwards.

In 2010 the first instance court sided with the claimant in respect of three songs, and dismissed the action for the remaining claims. 

Both the producer and Google/YouTube appealed the decision and in 2015 the appellate court only partly sided with the producer. Most importantly, it rejected the idea that YouTube could be regarded as primarily liable for the making available of infringing content, although it found that liability would subsist under the typically German ‘Störerhaftung’ doctrine (a form of accessory liability) under §97(1) of the German Copyright Act.

The case is now pending before the BGH and the decision is keenly awaited. As far as I know (but please correct me if I am mistaken), a platform like YouTube has never been found primarily liable for the infringement of copyright or a related right by a German court. However, the decision of the BGH – no matter in what sense - will be of great importance, also outside Germany, for two essential reasons.

First, it will be an opportunity to reflect upon and test the effect of the (rather expansive) case law of the Court of Justice of the European Union (CJEU) on the right of communication to the public within Article 3 of the InfoSoc Directive. It should be noted that the appellate court decided the case in 2015, ie before key judgments like GS Media [Katposts here], Filmspeler [Katposts here] and Ziggo (ie The Pirate Bay case) [Katposts here] were even issued.

Sarah Brightman
Secondly, it will serve to appreciate whether and to what extent the policy discourse around the so called ‘value gap’ proposal within Article 13 of the draft Directive on copyright in the Digital Single Market [Katposts here] would signal a departure from the existing legal framework.

CJEU case law on the right of communication to the public

So far the CJEU has decided nearly 20 cases on the right of communication to the public [see here for my map offering a ‘simplified’ version of the construction of this exclusive right], the latest instalment being last year’s decision in Ziggo (The Pirate Bay case). There the CJEU held that the operators of a platform that makes available to the public third-party uploaded copyright content and provides functions such as indexing, categorization, deletion and filtering of content may be liable for copyright infringement, jointly with users of the platform. For a finding of liability it is not required that the operators possess actual knowledge of the infringing character of the content uploaded by users.

The judgment, which I discuss more at length here, is rather short and leaves certain points ambiguous. Crucially, it is not entirely clear to what extent conclusions which are valid (and sensible) for a ‘rogue’ platform like The Pirate Bay can be extended to other platforms.

What seems however self-evident is that CJEU case law on Article 3 of the InfoSoc Directive has adopted a broad approach to the definition of what constitutes an ‘act of communication to the public’, stressing – among other things –the centrality of the notion of ‘indispensable intervention’ of the user/defendant. We now know, at least since GS Media, Filmspeler and Ziggo, that ‘indispensable intervention’ should be intended as an intervention aimed at facilitating access to content that would be otherwise more difficult to locate. 

Germany’s Federal Court of Justice
The policy discourse

In parallel with developments at the CJEU level, the policy discourse has unfolded in such a way that Article 13 of the proposed DSM Directive is rooted within the idea that operators of platforms – no matter how you wish to call them – that give access to user-uploaded copyright content make in fact acts of communication to the public, together with users of their services.

In the latest versions of the DSM Directive – both at the Council [this should be the latest compromise proposal of the Bulgarian presidency] and EU Parliament levels [here for MEP Voss's compromise proposal] – it is clarified that this idea would not be a departure from what the law already says, in that it is based on case law on Article 3 of the InfoSoc Directive. Hence, it would be just a consolidation and clarification of what the law already is.

Conclusion

As things currently stand, it seems that the BGH will decide this case without making a reference for a preliminary ruling to the CJEU. 

In any event, the resulting decision will add an additional piece to the (complex) construction of the right of communication/making available to the public. 

What has become central is no longer (or rather, not just) what constitutes an act of communication to the public, but rather who is responsible/liable for such act. 

The BGH decision might help refine further the terms of such fundamental debate.
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My oh my, times have changed. People once bought a book simply because he or she wanted to read it. Now one might choose to read a book because it will be made into a movie involving famous Hollywood stars. What is this Kat talking about? Read on.

The relationship between books and movies is a story of both separation and symbiosis. The printing industry trundled along for over 300 years before the movie industry first began to take shape. The challenge for the movie industry is first and foremost content. Before you need anything else, you need a story. One can commission writers to create screen plays, de novo, but want can also make use of existing literary contents, and then commission a writer to adopt them for the cinema. The advantage of the latter is that there is already an existing story on which to decide. The challenge is then to translate the literary platform into a movie one. Sometimes it works, sometimes it doesn’t. Sometimes the literary story is simply not suitable for the movie form; sometimes poor choices are made in adapting the literary story for the big screen. But the relationship is clearly present.

Copyright law did its bit. By giving legal recognition to derivative works, copyright law empowered authors to make their literary works available, for a price, to Hollywood types, to remake the written work into movie form. Indeed, with such legal control, authors had greater incentives to create literary works intentionally fashioned for such possible adaption into a movie. For example, Cornell_Woolrich, while largely forgotten today, was in his heyday deemed the equal of his more famous American mystery writer contemporaries, Dashiell Hammett, Earle Stanley Gardner and Raymond Chandler. More of Woolrich’s literary works were adopted as screenplays for the noire film genre than those of any other author, most notably, the classic Hitchcock movie, Rear Window, which was derived from a Woolrich short story, It Had to Be Murder. This Kat is inclined to believe that Woolrich had in the back of his mind the fashioning of stories that could be easily adopted for the movies.

OK Kat, I roughly get it. The movie industry makes good use of the reservoir of written stories that are out there, to the benefit of both sides, and savvy authors may sometimes even seek to predispose their works for adaption into a movie. Indeed, a successful movie may in fact spur a surge in sales of the underlying book; sometimes, such as with the classic book/series and equally classic movie, Lord of the Rings or To Kill a Mockingbird, each stands on its own and yet each helps feed the fame and success of the other.

But the story of the recently published (March 2018) and much discussed book by Christine Mangan, Tangerine feels different. Consider the review of the book that appeared in The Independent--
"Christine Mangan’s debut novel Tangerine is borne aloft a cloud of buzz regarding the fact it’s already been optioned for film by George Clooney’s production company Smokehouse Pictures, with Scarlett Johansson set to star. An atmospheric psychological thriller set in Tangier in 1956, it’s easy to see the story’s filmic potential; think the Morocco-set opening scenes of Hitchcock’s The Man Who Knew Too Much meets one of the more recent Patricia Highsmith adaptations."
Indeed, in giving the book an unenthusiastic review, the caption describes the book—
‘[a]s a disappointing debut novel, that has been optioned for film by George Clooney’s production company Smokehouse Pictures, with Scarlett Johansson set to star, which might prove more satisfying.”
The review in The New York Times was both more upbeat and blunt—
it is a “camera-ready first novel”.
What jumps out is that Tangerine is as much about the move-to-be-made as the book that has already been published. Sure, the book seems stand on its own. But the ultimate reason that one might want to read the book, and why it seems to be enjoying media notoriety, is that George Clooney and Scarlett Johansson want to make a movie based on it. Ultimately, one wishes to read the book because it might enhance the viewing experience in the movie theatre or one’s computer screen. Without the movie-in-the-making, Tangerine's commercial success is likely (fatally?) diminished.

In any event, given the reports that Ms. Mangan received a sizable advance (per the Irish Times, the “novel was the subject of a bidding war in the US, where Harper Collins bought it for a reported $1.1 million”), principally because of the movie option, her legal control over the book as movie seems to have served her well.
by Neil Wilkof
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A Doctor of Law, a Doctor of Rap Music and a Doctor of Medicine walk into a bar trade mark case... 
Dr Dre
This Kat had to study for her Dr title, unlike Andre Romelle Young who gave himself the stage name Dr Dre. The world- famous rapper and producer, recently failed to oppose the application of a trade mark filed by medical Doctor Draion M. Burch. Here's what happened:

Pop Rap Culture

Dr Dre, otherwise known by the US Patent and Trade Mark Office as a “hip hop cash king” (seriously), is considered to be the third wealthiest rapper in the world, with an estimatednet worth of $740 million. He is known for hit songs such as No Diggity and I Need a Doctor; and is credited as a key figure in the elevation of a particular style of rap music called West Coast G-funk, which involes synthesizer-based music with slow, heavy beats. As well as those headphones all the cool kats are wearing; Beats by Dre (which he sold to Apple for $3bn).

The Marks
Dr Drai

Dr Dre has registered trade marks of (1) the standard characters “DR. DRE” (2) a “series of musical sound recordings” in International Class 96; “posters, art prints and stickers” in International Class 16; “clothing, namely, T-shirts, sweatshirts, caps” in International Class 25; and “entertainment services by a musical artist and producer, namely, musical composition and production of musical sound recordings” in International Class 41.7.

So, everything was going well for Dr Dre, until he came up against an actual Doctor of medicine; Draion M. Burch DO, LLC. Dr Drai, as so referred to by his family, professors, medical colleagues, and his patients, provides obstetrics and gynecological medical services, as well as, speaking services on women’s health and transgender health, authoring books, made television and radio appearances and online videos all relating to women’s health and transgender health topics. Dr Drai was trading under this name for 10 years and recently filed applications to register the following trade marks:

1: DR. DRAI (standard characters) in International Class 41 (educational and entertainment services) and International Class 44 health care consulting in the field of osteopathic medicine) and 2:

In International classes 41, 44, 9 (Audio books in the field of women’s health and men’s health); and 16 (Books, written articles, handouts and worksheets in the field of men’s health and women’s health).

Dr Dre opposed the registration on the grounds of:
1) likelihood of confusion [Trademark Act Section 2(d), 15 U.S.C. § 1052(d)]    
2) false suggestion of a connection [TMA S. 2(a), 15 U.S.C. § 1052(a)] and,
3) dilution [TMA S. 43(c), 15 U.S.C. § 1125(c)] (although this claim was not pursued).

Dr Dre was probably feeling confident, as he submitted in his evidence of his previous victories over similar marks, including marks: DIAMONDDRE, and Dre Spitz. But the first hurdle in the matter was to be the form of evidence submitted by both parties.

Evidence Issues

Both parties submitted evidence which included printouts of websites, such as pages purporting to show the notoriety, strength, and fame of Dr Dre and his trade marks, and Internet printouts from Amazon.com regarding Applicant’s principal Draion Burch’s book sales. This evidence is admissible [Trademark Rule 2.122(e)(2), 37 C.F.R. § 2.122(e)(2)]. 

However, the parties were reminded by the US Patent and Trade Mark Office that it only constitutes hearsay and may not be relied upon for the truth of the matters asserted unless a competent witness has testified to the truth of such matters [Fed. R. Evid. 801(c) and 803; Safer, Inc. v. OMS Invs., Inc., 94 USPQ2d 1031, 1040 (TTAB 2010)]. But, Board goes on, where a party acknowledges as fact any portion of the evidence, those portions are submitted to the record as truth.

Furthermore, Dr asked the Board to apply the ‘hearsay exception’. This provides an exception for the hearsay rule where a “statement in a document that is at least 20 years old and whose authenticity is established” under the Federal Rule of Evidence 803(16). The Board agreed to apply the exception to the magazine and newspapers.
Just prepping my evidence...
Photo credit: Stuart Rankin

However, it declined to apply the exception in relation to printouts relating to Dr Dre’s awards lists, chart history, sales statistics. This was because Dr Dre had not shown that these Internet pages are generally used or relied upon by the public. In addition, Dr Dre had included printouts from Wikipedia, Genius.com, IMDB.com, biography.com and allmusic.com as “online reference works.” But the Board stated that it had not been shown that any online sources constituted a standard reference work or are were authoritative material. Previously, in re IP Carrier Consulting Grp., 84 USPQ2d 1028, 1032 (TTAB 2007) it had been determined that Wikipedia was unreliable due to its collaborative nature that “permits anyone to edit the entries.” So the Board determined the website printouts as hearsay.

From the Applicants side, the Board agreed to apply the exception to definitions (of “Thai,” “bonsai,” and “chai” – more on this later) from the Merriam‐Webster Online Dictionary. 

However, Dr Drai also requested the exception for the term “dre” as defined in urbandictionary.com. The Board noted that slang dictionaries can be appropriate only when they have a print edition, and since Urban Dictionary is a collaborative source, it is treated the same as Wikipedia, so they declined.

So, with half the evidence in-tow, we proceed with the claims against the DR DRAI marks; (2) likelihood of confusion and (2) false suggestion of connection.

Claim 1: Likelihood of Confusion

Similarity of Marks
The Board decided that the marks are similar in appearance in that both are two words with each mark having as the first word an identically pronounced abbreviation for doctor (Dr.), and the second word in each mark beginning with the letters dr. The Applicant attempted to claim that Drai might be pronounced “dry” as in “thai”, “chai”, or “bonsai” but the board decided that the words were phonetic equivalents and capable of being pronounced so as to sound similar, with consumers pronouncing the DRE/DRAI portion of each parties’ mark with a “long a” sound. [All those dictionary printouts for nothing!]
As such, the marks are similar as to sound, the words have the same pronunciation and connotation of a name and the Board weighed in favour of a finding of a likelihood of confusion.

Strength of Opposer’s Mark
To determine the conceptual strength of the mark the Board refer to one of my favourite lines which you might think comes from Gradians of the Galaxy, but really it’s from re Davia, 110 USPQ2d 1810, 1814 (TTAB 2014):

“We evaluate its intrinsic nature, that is, where it lies along the generic-descriptive-suggestive-arbitrary (or fanciful) continuum of words.”

Whilst market strength is the extent to which the relevant public recognises a mark as denoting a single source - “the degree of association in the mind of the consumer of the mark with the source of the goods or services based on the exclusivity (and sometimes renown) of the mark."

Dr Dre, evidently argued that his mark was entitled to a broad scope. Interestingly, Dr Drai argued that DR DRE is simply is a combination of “two common elements that are inherently weak.” [Pot kettle black?] In any event, the board found the mark to be inherently distinctive, since it is a personal name that is used in a manner that would be perceived by purchasers as identifying the services in addition to the person. Conceptional strength hurdle thus overcome.

To measure the market strength or fame of a mark, normally the board would consider factors such as volume of sales and advertising expenditures for the goods and services sold under the mark. However, partially due to the mishap with the printouts, Dr Dre didn’t provide any evidence as to this. But the Board don’t trouble themselves with that technicality, since Dr Dre is super famous, so must his mark be… the Board find that the significant exposure to the public, as the result of widespread unsolicited media attention, meant that the DR. DRE mark achieved a degree of renown in the music field and is strong.

Relatedness of Goods and Services and Channels of Trade
Reminding us of the threshold the Broad state that the goods and services do not have to be identical or even competitive in order to determine that there is a likelihood of confusion; rather, it is sufficient that the respective goods and services are related in some manner, or the conditions surrounding their marketing must be such that the goods and services will be encountered by the same purchasers under circumstances that would give rise to the mistaken belief that they originate from the same source. [Coach Servs., 101 USPQ2d at 1722, (quoting 7-Eleven Inc. v. Wechler, 83 USPQ 1715, 1724 (TTAB 2007)); On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000)].

First, the Board finds that the goods and services offered by Applicant in both medical and non-medical settings are unrelated to Opposer’s entertainment services, musical sound recordings or musical composition and musical sound recording production services.
Then, considering the channels of trade, Dr Dre argued that both services are offered through television, radio shows and social media - his evidence included screen shots of Dr Drai’s Facebook page. Stating that this only demonstrates advertising on these channels, the Board decided that this factor is neutral…

However, the Board then note that the level of care exercised by consumers when purchasing musical sound recordings, audio books, electronic publications is low – and therefore confusion  more likely, overall deciding the du Pont factor as neutral.

Overall on the point of confusion, the Board decided that although the similarity of the marks and the strength of the mark favoured Dr Dre, these factors were outweighed by the differences in the goods and services.

Claim 2: False Suggestions of a Connection

As such, this decision came down to the question of whether Dr Dre’s reputation as a musician and producer is of such a nature that when the DR. DRAI marks are used in connection with its applied-for goods and services, consumers will understand the mark to refer to Dr Dre. 

The same. But Different.
Credit: Starleigh
Dr Dre argued (without any evidence submitted) that it is a common practice of celebrities to use their names in connection with a vast array of goods and services and that a connection would be presumed.

However, Dr Drai argued that “it is not likely that consumers will recognize Applicant’s Dr. Drai’s marks as referring to Dr. Dre because Dr. Dre is not a medical doctor nor is he qualified to provide any type of medical services or sell products specifically in the medical or healthcare industry.”

Furthermore, the Board found that there was no intent by Dr Drai to trade on the goodwill of Dr Dre, since he testified the that he would not want to be associated with the Dr. Dre name because:

“This guy is known for misogyny and homophobic things, saying - lyrics and stuff like that, which I didn’t know at the time. And being part of the LGBT community, that’s when I said, you know, ‘I cannot be associated with that.’ And being an OB-GYN, I cannot be associated with anyone that has any kind of misogynistic speech because it’s a bad reflection on me as a doctor.”

Therefore, although Dr Dre established that he and his name are of sufficient fame and reputation, he could not show that a connection would be presumed in the mind of the consuming public when the Applicant’s DR. DRAI marks are used in connection with its applied-for goods and services. The fourth element of the test was not met, so Dr Dre failed to prove that Dr Drai’s marks falsely suggest a connection with Opposer.

So, Dre might be a "cash-king" but his “mind-boggling misogyny” [and lack of evidence], lead to the dismissal of his opposition, on the likelihood of confusion and false suggestion of a connection grounds.


PS. The Guardian wrote an article about this case, missing just one minor technicality: “This article was updated on Thursday 10 May to clarify it was a dispute over a trademark, not copyright.”

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Kat friend Arthur Yap from JurisAsia provides an instructive summary of how the Singapore Court of Appeal has charted its own direction on the doctrine of equivalents in light of the decision by the UK Supreme Court in the widely discussed Eli Lilly v. Actavis case.

The UK Supreme Court's decision in Eli Lilly v. Actavis [2017] UKSC 48 is an important development in the law of patents, specifically in relation to determining the scope and ambit of protection conferred to the patentee under his patent. In determining the scope of protection, two very important but contrasting public policies are at play: rewarding the patentee with a monopoly for his invention, and public certainty on the scope of the invention claimed. Striking the right balance to protect both the inventor and the public has always been difficult; and, following the Actavis decision, the question remained as to whether other jurisdictions will similarly embrace the doctrine of equivalents.

Prior to Actavis, the Singapore courts both endorsed and applied the purposive approach to patent construction developed by the UK courts in Catnic Components v. Hill & Smith [1982] RPC 183; Improver Corporation v. Remington [1990] FSR 181; and Kirin-Amgen v. Hoechst [2005] RPC 9 ("Kirin-Amgen"). The adoption of UK jurisprudence was a natural consequence of the close similarities between the governing legislation in Singapore and the UK, respectively, namely the Singapore Patents Act (the "PA") and the UK Patents Act. For example, s 113 of the PA, whose terms are materially similar to s 125 of the UK Patents Act, provides that the invention for a patent shall, unless the context otherwise requires, be taken to be that specified in a claim of the specification as interpreted by the description and any drawings contained in that specification.

Post Actavis, the Singapore Court of Appeal recently had the occasion, in the matter of Lee Tat Cheng v. Maka GPS Technologies Pte Ltd [2018] SGCA 18 ("Lee Tat Cheng"), to determine whether the principles espoused by the UK Supreme Court ought to be similarly applied in Singapore. The Court of Appeal first observed that in Actavis, the UK Supreme Court was bound to give effect to the Protocol on the Interpretation of Article 69 of the EPC (the "Protocol") in interpreting s 125 of the UK Patents Act. In particular, the Court of Appeal noted that Actavis made a distinction between the interpretation of a claim in a patent from the extent of the protection afforded by that patent. This distinction was said to lie in the need to take account of equivalents and represented a significant departure from the established position that the extent of the protection conferred under a claim is exactly what that claim, properly construed, encompasses.

Nevertheless, the Court of Appeal came to the unanimous conclusion that Actavis should not be applied in Singapore for a number of reasons.

First, the approach set out in Actavis is inconsistent with the PA because it allows the extent of the protection conferred by a patent to go beyond the scope of the claims in the patent, purposively construed. S113 of the PA states in no uncertain terms that the extent of the protection conferred by a patent is to be determined by what is specified in the claims, and interpreted in the light of the description and any drawings contained in the patent specification. This does not permit the scope of the protection conferred by a patent to be otherwise determined or to extend beyond what is specified in the claims. While the terms of s113 of the PA is materially similar to s125 of the UK Patents Act, the interpretation of the latter is now governed by the Protocol, which is simply not the legal position here.

Second, there are good reasons why the scope of the protection conferred by a patent should not extend beyond the scope of the claims in that patent, purposively construed. It is fair for a patentee to be bound by the language in which he chooses to frame the claims of his patent. That is how he has chosen to define the scope of his monopoly, and the rest of the world should be entitled to take him at his word.

The purposive approach caters to the limitations of language and helps to militate against potentially harsh results that a strict literal approach might bring about, for instance, by not allowing an imitator to evade the intended monopoly by making minor and immaterial variations just to take his products outside the scope of the literal words of the patent. The purposive approach strikes the right balance between the need to afford fair protection to the patentee so that he is not left without protection against third parties who make immaterial variants to the patented invention, and the need to provide a reasonable degree of certainty to third parties who, in the conduct of their business, rely on patent claims as delimiting the scope of patent protection. Actavis, on the other hand, extends the scope of the protection conferred by a patent beyond its claims and this, according to the Court of Appeal, tilts the balance too far in favour of the patentee and in a manner that is not compatible with the terms of the governing legislation.

Third, if Actavis, which imports the doctrine of equivalents, were to be applied in Singapore, it may give rise to undue uncertainty. The Court of Appeal expressed the same concerns raised by Lord Hoffman in Kirin-Amgen that "once the monopoly has been allowed to escape from the terms of the claims, it is not easy to know where its limits should be drawn". Determining the scope of the monopoly conferred by a patent based on a purposive interpretation of the patent claims gives rise to greater certainty because it is aimed at determining what, based on the language of the claims, the patentee would have objectively meant to include within the scope of his monopoly at the time of the patent application. On the other hand, incorporating the doctrine of equivalents brings with it an element of ex post facto analysis that focuses on how the patented invention works in practice based on the state of developing scientific knowledge at the date of the alleged infringement.

Lee Tat Cheng is significant for being the first apex highest court outside of the EU and the UK to embark on an in-depth analysis of the doctrine of equivalents and it is perhaps even more significant for expressly rejecting the same. It remains to be seen whether jurisdictions that are not obligated to give effect to Article 2 of the Protocol will adopt Actavis and the doctrine of equivalents, or follow Singapore's approach.

Photo on lower left: iconfinder.com, licensed under Attribution-ShareAlike 3.0 Unported license.
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