European Parliament demands to be informed on ACTA negotiations

Yet another installment in the ongoing saga of and secrecy surrounding the ACTA (Anti-Counterfeiting Trade Agreement) negotiations (see the IPKat's ACTA posts here).

The European Parliament has now published a press release in which it demands that the Commission and the Council should grant public and parliamentary access to the negotiation texts. A resolution adopted on Wednesday 10 March 2010 asks that MEPs "be fully informed in good time about their initiatives", otherwise the European Parliament "reserves its right to take suitable action, including bringing a case before the Court of Justice in order to safeguard its prerogatives". ["Hear, hear!" comments Merpel. "Indeed, these are rather strong words" muses this Kat.]

The press release further states that "MEPs want to ensure that the agreement does not make it possible for any ‘three-strikes’ procedures to be imposed". The European Parliament also demands "full clarification of any clauses that would allow for warrantless searches and confiscation of information storage devices such as laptops, cell phones and MP3 players by border and customs authorities".

To access the European Parliament's press release of 10 March 2010, please click here (available in more EU languages than one could hope for).

The IPKat wonders about all this ACTA secrecy, a cynic might think there was something to hide...?

On the same topic: OHIM has today published an announcement on its website referring to an "ACTA consultation meeting" which is organised by The Directorate General for Trade of the European Commission (DG) and which will be held in Brussels on 22 March 2010. The aim of this meeting is "to inform and consult interested parties about the negotiation of a plurilateral Anti-Counterfeiting Trade Agreement (ACTA)".

If you would like to attend, please follow this link to the DG's website to register (remember it is held in Brussels). If you cannot attend, then do not despair because we are told: "Those unable to participate in the meeting and/or wishing to present their positions in writing may send their comments to mailto:%20TRADE-ACTA-MEETING@ec.europa.eu, no later than 22 March 2010." Now, Merpel cannot help but wondering whether the EU parliament will send an e-mail....

R'n'D: the biggest spenders

The 2009 EU Industrial R&D Investment Scoreboard gives some interesting facts and figures on the biggest spenders on research & development - R&D that will, hopefully, also lead to some IP.

From the press release:

Worldwide corporate R&D investment increased by 6.9% in 2008, in spite of the economic crisis. With an 8.1% increase, the R&D investment growth of EU companies', defined as companies having headquarters within the EU, is significantly higher than US ones for the second year, at 5.7%, and Japanese ones, at 4.4%. Two EU companies feature in the top ten: Volkswagen in the 3 rd place with an R&D investment of €5.93 billion and Nokia in the 8 th . The world's biggest investor in R&D was Toyota Motor, with €7.61 billion. The report also shows that companies from emerging countries have the highest R&D investment growth.

Two EU companies, Volkswagen and Nokia, are among the top 10 R&D investors; five from the US, including Microsoft, and General Motors, Pfizer; and one from Japan, Toyota, at the top position (see graph above; despite the title, only the 20 largest investors are shown here. Click for enlargement).

US companies have reinforced their leading position in the high R&D intensity sector, by increasing their investments by 35% in the last four years against only 13.6% in the EU companies. While the total US high R&D intensity sector is twice the size of the EU one in terms of R&D investment, EU companies in this sector show similar performance than US competitors in terms of R&D and related indicators.

EU identifies IPRs as trade barrier with US

The IPKat learns from IPWatch that the European Commission has issued a report highlighting trade barriers between the US and the EU. After stressing the closeness of the EU/US trade relationship, the report explains its purpose thus:

This annual report on U.S. trade barriers from the European Commission highlights some of the impediments that the European Union encounters when doing business with the U.S. The barriers described range from the small and relatively easily addressed to larger, more complicated problems, including challenging regulatory questions and some issues that have been or are being litigated at the World Trade Organisation. No matter the size or economic impact, all barriers need to be addressed, as far as possible, to help maintain and strengthen both transatlantic confidence and broader faith in the multilateral trading system.

Included are a number of IP-related trade barriers, namely:

• The US exemption for small businesses from paying copyright royalties (even though the US has lost a WTO case on the issue
• The lack of broadcast rights for producers and performers under US law (even though such rights are afforded to their US counterparts under EU law)
• Difficulties regarding GIs, particularly various European wine names classed as 'semi-generics' in the US
• Failure to inform patentees when the US authorities are going to use a patent
• s.337 of the Tariff Act 1930, which allows the owners of US IP rights to keep infringing articles out of the US
  
• The Havana Club case, whereby trade marks identical or similar to those owned by confiscated Cuban entities cannot be registered or renewed
• The US's first-to-invent patent system (though the report notes that the US is becoming more accepting of the first-to-file system)
• The Hilmer doctrine (excluding certain European prior art)
• Differences in patentability of business methods and computer software
• Differences concerning encryption products
  
• Strictures involving US plant variety rights
  

The IPKat reckons that these barriers are common knowledge. The impact comes from gathering them all together and placing them in the wider context of trade relations.

EU copyright licence and a fully private ICANN: a busy couple of days for the InfoSoc Commissioner

InfoSoc Commissioner, Viviane Reding has been busy in the past couple of days.

The New York Times reports that she, together with Meglena Kuneva, the consumer affairs commissioner are putting forward a proposal for a Europe-wide copyright licence. The idea is to facilitate the sale of online content across national borders without the need for distributors to engage with the different copyright laws of up to 27 Member States.

Meanwhile, Commissioner Reding is calling for ICANN to become a fully private and independent company once its agreement with the US Government expires on 30 September 2009. She would like to see this accompanied by a 'G-12 for Internet Governance' which would would include two representatives from each North America, South America, Europe and Africa, three representatives from Asia and Australia, as well as the Chairman of ICANN as a non-voting member.

It's not often that the IPKat finds himself agreeing with the Eurocrats, but on both issues he thinks there is sense in the proposals. He'd like more detail though about the Internet 'G-12'. Will it really be representative? For example, would the membership rotate? How will it take into account the fact that some countries host far more internet activity than others?

No mercy in Bakewell for those who fake well

The IPKat failed to notice earlier in the month this piece in the Telegraph. It seems that a group of cake lovers, led by the owner of the Old Original Bakewell Pudding Shop, are petitioning the EU (surely that should be DEFRA?) to grant the Bakewell Pudding protection as a geographical indication. The Bakewell consists of pastry, jam and almond filling and is reputed to have been created by accident in the 19th Century.

Said Ms Pheasy, owner of the shop:

"We want to protect the pudding's heritage...We are declaring what our recipe is, what goes into it, how it is made, taste, shape, colour, everything, just to specify this is how it is made."

The IPKat (whose culinary skills extend only to that other geographical cake - the Linzer Torte) isn't impressed. Every cake cookbook worth its salt has a recipe for the Bakewell (as does Mr Kipling), so it seems a bit late to specify the exact requirements of its 'heritage'. On a more philosophical note, surely evolution of the recipe is part of its heritage too?

What KT did ...

The IPKat nearly failed to spot the publication of Commission Recommendation of 10 April 2008 on the management of intellectual property in knowledge transfer activities and Code of Practice for universities and other public research organisations, which is nestling quietly in a corner of the very busy website of the Official Journal of the European Union.

The gist of this document is that the Commission recommends that Member States should

"1. ensure that all public research organisations define knowledge transfer as a strategic mission;

2. encourage public research organisations to establish and publicise policies and procedures for the management of intellectual property in line with the Code of Practice set out in Annex I [the IPKat says, this is good news for universities that aren't already overpopulated by administrators of one sort or another ...];

3. support the development of knowledge transfer capacity and skills in public research organisations [this appears to assume that the knowledge in question belongs to the institutions; let's hope that the rights of those who create that knowledge are not forgotten], as well as measures to raise the awareness and skills of students — in particular in the area of science and technology — regarding intellectual property, knowledge transfer and entrepreneurship;

4. promote the broad dissemination of knowledge created with public funds, by taking steps to encourage open access to research results, while enabling, where appropriate, the related intellectual property to be protected [this is a swings-and-roundabouts scenario -- if you have to yield your own research results to others, you can at least get hold of theirs];

5. cooperate and take steps to improve the coherence of their respective ownership regimes as regards intellectual property rights in such a way as to facilitate cross-border collaborations and knowledge transfer in the field of research and development [this looks like harmonisation by stealth of ownership provisions in patent and copyright law: not necessarily a bad thing at all, but it has repercussions that run far wider than the field of public sector knowledge management and should be debated on a wider level too];

6. use the principles outlined in this Recommendation as a basis for introducing or adapting national guidelines and legislation concerning the management of intellectual property and knowledge transfer by public research organisations,
as well as for concluding agreements concerning research cooperation with third countries, or for any other measures to promote knowledge transfer, or when creating new related policies or funding schemes, while observing State aid rules [the reference to State aid is presumably an allusion to EU competition policy in some way. Can this be spelled out, please?];

7. take steps to ensure the widest possible implementation of the Code of Practice, whether directly or through the rules laid down by national and regional research funding bodies [i.e. legislate directly for all cases or make compliance a condition of receiving research funding];

8. ensure equitable and fair treatment of participants from Member States and third countries in international research projects regarding the ownership of and access
to intellectual property rights, to the mutual benefit of all partners involved [easier said than done, particularly since the view as to what is 'equitable and fair' depends if you're receiving money or paying it out];

9. designate a national contact point, the tasks of which should include the coordination of measures regarding knowledge transfer between public research organisations and the private sector, including tackling transnational issues, in liaison with similar contact points in other Member States [looks like more jobs for the administrators, lads! The IPKat suspects that, while the researchers and knowledge creators will be burning the midnight oil to achieve their results, the people who assume the mantle of Measures Coordinators will be away from their desks by 5.30pm and off to the pub for a refreshing drink];

10. examine and make use of the best practices set out in Annex II, taking into account the national context;

11. inform the Commission by 15 July 2010 and every two years thereafter of measures taken on the basis of this Recommendation, as well as their impact".

The IPKat wonders whether, if there is money to spend on this project, it might be better spent on (i) hiring more researchers, (ii) looking after them better and (iii) making application forms for research funding more user-friendly. Merpel says, just think how much fun it will be when every public research institution in the European Union operates by the same rules and dances to the same tune, not like the random activities of institutions in the United States, where so many of those inconvenient Nobel Prizes come from.

French connections

France backs term extension for sound recordings

It seems that the show’s not over for an extension to the copyright term of sound recordings. According to an article in Friday’s Times, France is due to make the extension a priority of its upcoming six-month presidency of the EU, despite opposition from the UK and Germany. According to the French Culture Minister, Christine Albanel

“Today, whole swathes of the recording catalogue of the 1950s and 1960s, representing a significant part of the national pop heritage, are falling progressively into the public domain…That creates an obvious problem of fairness. Artists who began their careers very young are being stripped today of all remuneration from their first recordings.”

The IPKat can’t quite share Ms Albanel’s indignation. There aren’t many other industries where success in your youth guarantees you an income for life.

For French-speakers only

Speaking of the French, they will be the only people able to understand last week’s Art.8(5) (dilution and unfair advantage) CFI case regarding the CAMEL trade mark, which still isn’t available in English. Even worse, Professor Lionel Bently has informed the IPKat that the ECJ’s judgment in Procter & Gamble v. OHIM, Case C-107/03P (23 Sept 2004) is not available in English from the ECJ’s website. The IPKat could (very very grudgingly) understand why a CFI judgment mightn’t be translated instantly, but a more than three year wait for an ECJ decision is very poor.

European Commission launches pharma sector enquiry

Some IPKat readers (at least those who do not also read Class 46) may yet be unaware that the European Commission has recently been carrying out 'dawn raids' on some well-known large pharmaceutical companies, including
GlaxoSmithKline, AstraZeneca, Sanofi-Aventis, Pfizer, Wyeth, Teva, Merck Sharp & Dohme, Johnson & Johnson, Sandoz and Bayer Schering Pharma (according to PharmaTimes). The raids are a precursor to the Commission's new sector enquiry into the European pharmaceutical industry, as announced recently (and, of course, shortly after the raids themselves) in a press release.

(top right: Commission officers politely ask GSK executives to come out with their secret papers)

Competition Commissioner Neelie Kroes (right) says:

"Individuals and governments want a strong pharmaceuticals sector that delivers better products and value for money. But if innovative products are not being produced, and cheaper generic alternatives to existing products are in some cases being delayed, then we need to find out why and, if necessary, take action."

The Commission points out that, unlike in cartel cases, where the Commission carries out inspections when it has indications that specific companies have committed competition law infringements, these inspections are not aimed at investigating practices of companies which the Commission has already positive indications of wrong-doing. They are just the starting point of this general sector inquiry and aim to ensure that the Commission has immediate access to relevant information that will guide the next steps in the inquiry. The kind of information the Commission will be examining, such as the use of intellectual property rights, litigation and settlement agreements covering the EU, is by its nature information that companies tend to consider highly confidential. Such information may also be easily withheld, concealed or destroyed. This is why inspections have been considered appropriate.

What appears to have prompted the enquiry is a general suspicion that some patent-heavy pharmaceutical companies may be attempting to extend their monopolies beyond patent lifetimes by, amongst other things, the practice of 'evergreening', backed up with expensive court cases relating to (arguably very slim) inventions and making deals with (some may say "paying off") generic drug producers. This follows the decision in 2005 (see here, and IPKat comments here) to fine AstraZeneca 60 million euros for attempting to block the entry of generic producers into the proton pump inhibitor market (monopolised for a time by the blockbuster drug Losec) after expiry of their main patent.

Clearly this is the start of what is likely to be a very long and drawn out process. The IPKat does not expect to see much public information coming out in the next couple of years. What could happen after that, however, is anyone's guess.

Cyprus fails to delight Turkey

The IPKat slipped up in failing to note the battle between Turkey and Cyprus regarding Turkish delight (see this article in the Times). Cyprus is to gain PGI recognition for Loukoumi Yeroskipou, used to describe the sweet which is also known as lokum, or Turkish delight. While the Turks are casting aspersions on the ability of Greek Cypriots to make lokum, the Cypriots are responding that Turkey shouldn’t be able to control the name, since the sweet is also produced in Greece and Lebanon. In fact, it seems that the Cypriots aren’t trying to control the production of the sweet, but rather to raise to the profile of their loukoumi in export markets.

The IPKat notes that now that EU GI registration has been opened up to third countries, Turkey could equally well apply for registration. Regarding the scope of registration, the IPKat wonders whether consumers could be misled, or whether Turkey could gain any real advantage from evoking the Cypriot registration, bearing in mind that Turkish production is so much more famous. Meanwhile, ever the sceptic, Merpel notes the fabulous timing of a battle about Turkish delight just before Christmas.