Christian Louboutin: a (red) sole proprietor speaks

Prompted by the AmeriKat's first post yesterday, which reviewed the Red Soles spat between Christian Louboutin and the Gucci Group's Yves St Laurent, the IPKat's friend Mary-Ellen Field (Brand Finance) was inspired to write the following opinion piece which the Kat -- every wary of expensive footwear for the very good reason that he is a quadruped -- is pleased to share with his readers.  It runs like this:

"As the owner of several pairs of much loved and dare I say much admired Christian Louboutin's (I don't expect male readers will understand any of this) I can only think that the Gucci Group must be really desperate to paint their YSL soles red. It seems an incredibly silly thing to do.

Do they really think that women who are prepared to spend over £400 pounds for a pair of CLs will actually change their minds and buy a pair of YSL's because they have red soles? Just because we are prepared to spend a lot of money on shoes does not mean we are stupid (Please try to control yourselves, all you tomcats reading this.  Expensive shoes -- like hair colour and other unmentionables -- are no indication of intelligence or the lack of it)

Listen up YSL, we women buyers of luxury shoes make our choices of the shoes we buy based purely on love: if we love them we buy them. This is very annoying to accountants, lawyers and bankers because love is not measurable. CL is the ultimate status shoe at the moment (in my humble opinion and I could send you a photo of my shoe closet if required to prove this). Wearing our red soled CL works of arts makes us part of a special club, just like owning an Apple product or a Ferrari.

I also quite often love YSL shoes enough to buy them too -- but if you feel the need to try to trick me by adding red soles I won't love you any more. You don't need to pass yourself off as CL, you are beautiful in your own right.

It always amazes me, when I go to so called "luxury events, conferences" etc, that hardly any of the attendees are attired in or carry any luxury products at all. Perhaps the luxury industry pays so badly that they can't afford to buy the products they flog. It is always so disappointing".

This member of the Kat team knows little of female shoe fashion but feels he has a slightly proprietary interest in anything to do with red footwear, since the Red Shoes -- the movie classic of that name -- was co-produced and co-directed by Emeric Pressburger, who had the good fortune to the cousin of this Kat's mother-in-law. Never mind that, Merpel says, what's important here is to find out what other readers think about what, at the very least, seems to have been a curiously risky decision on the part of YSL.

Applications for "There's an App"

Registering "There's an app for that" was a piece of cake
in the US, but Europe may prove more resistant

Matthew Rippon was first.  Lawrence Ryz was last.  Between the two there were many kind souls who sent the IPKat this link to Apple's latest venture into the world of trade mark protection.  The Unofficial Apple Weblog ("Apple trademarks "There's an app for that", here) has spotted the  iToys-to-die-for company's US trade mark for the slogan "There's an app for that."  To be fair to Apple, (i) that tagline has been used to promote Apple's App Store and iOS devices almost since their inception, and (ii) Apple doesn't really have much credible competition anyway in the minds of many consumers, who assume that "App" is just the first three letters of Apple.  Indeed, in some parts of this noble planet, the Kat understands, the slogan has become a jokey colloquialism-cum-conversation-booster, frequently deployed by people when they can't think of a sensible response to what someone else has just said to them. The trade mark, for which Apple filed on 4 December 2009, covers

"Retail store services featuring computer software provided via the Internet and other computer and electronic communication networks; retail store services featuring computer software for use on handheld mobile digital electronic devices and other consumer electronics".

Intrigued to see what Apple might be planning on the Eastern side of the Pond, the IPKat checked the warm and user-friendly online search facility of the UK's Intellectual Property Office, where he was rewarded with details of International Madrid (EU) Trade Mark U00001043881 (first designation of the EU for IR 1043881).  Opting for English as its first language and Italian as the second, the applicant boldly went for protection in Classes 09, 35, 38, 42.

The IPKat is genuinely sad that Apple has been so precise and selective in its list of goods and services.  He had hoped that the Cupertino company would be registering its slogan for ashtrays, knitting patterns, meat cleavers and all the other strange things that get inadvertently left in trade mark applications these days -- but it was not to be.  The big question, though, is whether we dull and unimaginative Europeans, on looking at the words "There's an app for that", would ever think "Gosh, that's an indication as to the identity of the origin of goods and services in respect which that slogan is used", rather than "Oh, I suppose there it ..."

Contributions of "There's an app for that" to the cultural enrichment of humanity here, here and here

Are you small, American, IP-ish and in business? If so, read on ...

It's so strange to see a familiar problem when it's viewed from the other side.  European commentators and analysts have long made deeply concerned clucking noises about the fate of small (often but not exclusively British) businesses that set out bravely to trade in promising foreign markets, only to find that their IP rights -- which work quite well at home -- aren't particularly useful in countries where they don't actually have them.   Funnily enough, small American businesses that set out bravely to trade in promising foreign markets have many of the same problems.  This is apparent from a quick glance at the United States Patent and Trademark Office (USPTO) Small Business web pages, which are boldly, if not entirely fairly, decorated with the STOP-FAKES.GOV sign depicted on the right.  Why is it "not entirely fair"? Because a great deal of the loss is likely to derive from copying which isn't unlawful because it's done in a country in which local IP rights have not been secured -- though goods made lawfully in this manner can slip into markets where IP rights exist and, being sold on the cheap, cause damage to brand owners and product originators while racking up handsome profits for those who deal in them. Anyway, what does the USPTO have to say? Let's take a look at the site's front page:

"Are you a small business?

Welcome
Success in a global economy depends more and more on intellectual property (IP) assets. In fact, IP-based businesses and entrepreneurs drive more economic growth in the United States than any other single sector [We like to take this as axiomatic, but a model that adequately accounts for vague variables like "IP-based", "businesses and entrepreneurs" and "growth" make sectoral comparisons hard within each jurisdiction, and as between jurisdictions].

Unfortunately, intellectual property has captured the attention of pirates and organized crime. Today, piracy, counterfeiting and the theft of intellectual property pose a serious threat to all U.S. businesses. Industry estimates of the cost of such theft range from $250 billion to 750,000 jobs per year. These threats to ongoing invention and innovation make it important to consider securing IP protection, whether you're a major multinational firm or a 1-person home business.

Small businesses. Big questions.
While every IP-based business is vulnerable to piracy and counterfeiting, small businesses can be at a particular disadvantage because they lack the resources and expertise available to larger corporations [apart, that is, from the lucky few who become trolls?]. Small businesses may also often lack the familiarity with the process of protecting intellectual property: research conducted in the spring of 2005 by the U.S. Patent and Trademark Office (USPTO) indicates that only 15 percent of small businesses that do business overseas know that that a U.S. patent or trademark provides protection only in the United States [The IPKat wonders whether this figure, low as it seems, is higher than in less commercially-savvy jurisdictions. It would be good to follow this up at regular intervals, with non-US comparators].

It has never been more essential for you to consider patenting your idea or registering your name as a trademark, especially if you are a small business owner or are starting a small business.

The USPTO has created this Web site to help small businesses consider the benefits of strong IP protection - both in the United States and overseas [not much use for Canada and Mexico, then, muses Merpel] - and decide whether it is right for them.

This site includes important information on whether and when to file for intellectual property protection, what type of protection to file for, where to file, and how to go about it".

Once you're into the heart of the site, the information is clear, crisp, largely US-centric (which is reasonable to expect if the website hadn't mentioned the "overseas" bit) and in some cases debatable. For example,

"A patent for an invention is the grant of a property right to the inventor. Patents are granted for new, useful and non-obvious inventions for a period of 20 years from the filing date of a patent application, and provide the right to exclude others from exploiting the invention during that period.".

The Kat wonders how many countries grant an outright 20 year protection.  In most jurisdictions with which he is familiar, many or most patents lapse, die or are revoked in around half that time.  Merpel adds, when this site is further developed, it would be good to see something about licensing on it.  She couldn't find the "l' word anywhere she looked and, because small businesses often lack the resources either to develop their own innovations or to sue others for infringing their rights, licence-based business models can be really valuable.

Thanks, Leason Ellis, for your Tweet which alerted the Kats to this item.

Dilution is in decline, suggests empirical study

The IPKat's effervescent friend Paul J. Heald (University of Georgia Law School) just informed him that his latest piece of research, co-authored with Robert Brauneis (George Washington University Law School), is now available for consumption on SSRN: you can download it at no cost to your pocket, if not your preconceptions, here. The title of this 56-page piece rather gives the game away: it's "Trademark Infringement, Trademark Dilution, and the Decline in Sharing of Famous Brand Names: An Introduction and Empirical Study".

According to the abstract,

"this article ... presents results from an empirical study of sharing rates among 131 famous brand names from 1940 through 2010, conducted through an examination of business names in the white pages telephone directories of Chicago, Philadelphia, and Manhattan. Perhaps the most dramatic finding of the study is that independent uses of the 131 brand names – that is, uses of those names by businesses other than those that made the names famous – have declined from 3,000 to 1,380 between 1960 and 2010, a 54% drop. The article then assesses potential causes for that decline. We evaluate five potential non-legal factors, including economic changes, family migration, decreased attractiveness of particular famous brands, changes in the popularity of business name types, and changes in cultural naming patterns. It then considers evidence that changes in trademark infringement and dilution law underlie some part of the decline. The article concludes that both legal and non-legal factors have likely played a role".

The IPKat thinks this is a jolly good start -- though as the authors themselves acknowledge, the limited nature of this empirical study means that this subject has by no means been exhausted. He very much hopes that, since the authors have gone to some lengths to explain their methodology for the selection of famous names (many of which will be unknown to the younger or non-US reader) and their means of assessing the extent of shared use, similar empirical studies in jurisdictions outside the United States will reveal whether the trend identified by Paul and Robert is unique to that country or can be seen also in countries with less cultural diversity, fewer overt legal checks on dilution, less consumer-driven economies and where civil law principles operate instead of those of the common law.

Things you may not want to dilute here and here

Louisville Slugger here; another Louisville slugger here

What Clabber really means here

Machine-or-transformation? Bilski court speaks!

At last, the Supreme Court's long-awaited ruling on the standard of patentability of business method software patents in In re Bilski has been handed down (you can read it in full here). It's a 71-page decision and the IPKat can't pretend to have read it all: comments and analysis will come later. According to the headnote:

"Petitioners’ patent application seeks protection for a claimed invention that explains how commodities buyers and sellers in the energy market can protect, or hedge, against the risk of price changes. The key claims are claim 1, which describes a series of steps instructing how to hedge risk, and claim 4, which places the claim 1 concept into a simple mathematical formula. The remaining claims explain how claims 1 and 4 can be applied to allow energy suppliers and consumers to minimize the risks resulting from fluctuations in market demand. The patent examiner rejected the application on the grounds that the invention is not implemented on a specific apparatus, merely manipulates an abstract idea, and solves a purely mathematical problem. The Board of Patent Appeals and Interferences agreed and affirmed. The Federal Circuit, in turn, affirmed. The en banc court rejected its prior test for determining whether a claimed invention was a patentable “process” under Patent Act, 35 U. S. C. §101—i.e., whether the invention produced a “useful, concrete, and tangible result,” see, e.g., State Street Bank & Trust Co v. Signature Financial Group, Inc., 149 F. 3d 1368, 1373—holding instead that a claimed process is patent eligible if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a differentstate or thing. Concluding that this “machine-or-transformation test” is the sole test for determining patent eligibility of a “process” under §101, the court applied the test and held that the application was not patent eligible.

Held: The judgment is affirmed".

In addition to the main judgment, delivered by Justice Kennedy, a number of additional concurring judgments were delivered. Justice Kennedy's concluding comments are worthy of note:

"Today, the Court once again declines to impose limitations on the Patent Act that are inconsistent with the Act’s text. The patent application here can be rejected under our precedents on the unpatentability of abstract ideas. The Court, therefore, need not define further what constitutes a patentable “process,” beyond pointing to the definition of that term provided in §100(b) and looking to the guideposts in Benson, Flook, and Diehr. And nothing in today’s opinion should be read as endorsing interpretations of §101 that the Court of Appeals for the Federal Circuit has used in the past. See, e.g., State Street, 149 F. 3d, at 1373; AT&T Corp., 172 F. 3d, at 1357. It may be that the Court of Appeals thought it needed to make the machine-or-transformation test exclusive precisely because its case law had not adequately identified less extreme means of restricting business method patents, including (but not limited to) application of our opinions in Benson, Flook, and Diehr. In disapproving an exclusive machine-or-transformation test, we by no means foreclose the Federal Circuit’s development of other limiting criteria that further the purposes of the Patent Act and are not inconsistent with its text. The judgment of the Court of Appeals is affirmed".

Wikipedia on Bilski here
Patently-O's pre-Bilski software patent survey here
Coroporate Counsel: the waiting was the hardest part here

The European position on software patents here (if you're European), and here (if you're British)

Non-patentable business methods here and here

Bilski Brothers recipe for OK Bilski Chili and Beans here

Bilski gets a grilling from the bar here

Department of literary and cultural allusions

Features entitled "Waiting for Bilski" on the assumption that it was an original idea to do so here, here, here, here and here (there are more ...)

"Mr Bilski Goes to Washington" here

"Groundhogs Day: speculating on no Bilski decision this term" here

United States Supreme Court

Supreme Court website here

The Supremes here

Scotus weblog here

Brazil retaliates against United States

Brazil has outlined the details of its retaliation against the United States, following the latter's refusal to comply with a World Trade Organization ruling that it had wrongly subsidised its local cotton production, preventing Brazil from exporting its own cotton there. According to Reuters tonight, the estimated annual impact of the retaliation is $591 million, estimates Brazil's foreign ministry. The news item adds:

"Brazil is expected to publish by March 23 a separate list worth an additional $238 million in annual cross-retaliation penalties. That list would be subject to public hearings for 20 days and focus on intellectual property rights and services, ministry officials said.

It could break patents and copyrights in the pharmaceutical or music industries, analysts said, potentially making U.S. industries more susceptible to farm disputes. "That will impact much more than goods -- it could set an important precedent and harm the United States in other cases," said Haroldo Cunha, head of the Brazilian cotton growers assocation Abrapa. ...

The WTO has previously granted two other countries the right to cross-retaliate in trade disputes, but Brazil would be the first nation ever to apply it".

The IPKat understands that more details will be posted soon on the IP Tango specialist intellectual property website by leading Brazilian practitioner and blogger José Carlos Vaz e Dias.

See earlier IP Tango coverage of this dispute here, here, here, here, here, here and here.

How the retaliation is reported elsewhere: see the Wall Street Journal, Financial Times and Associated Press.

Things to do with cotton balls here

Paris not so hot in the Ninth Circuit

In 2007 Paris Hilton, the heiress who is “famous for being famous”, sued Hallmark Cards alleging that one of the greeting card company’s birthday cards constituted misappropriation of publicity and trade mark infringement, under Californian and federal law respectively. The card at issue incorporated a cartoon of a waitress with Hilton’s head superimposed on the body. A caption reading “Paris’s First Day as a Waitress” is placed above the drawing. The cartoon Hilton tells the customer “Don’t touch that, it’s hot.” “What’s hot?” the customer replies. “That’s hot.” For those IPKat readers unfamiliar with Paris Hilton’s body of work, “That’s hot!” is a phrase she employs when, according to Judge O’Scannlain, “she finds something interesting or amusing.” Hilton registered the trade mark “that’s hot” with the USTPO.

The 9th Circuit dismissed the trade mark infringement claim, which Hilton did not appeal, but accepted that Hilton could still argue that the card misappropriated her likeness in the image.

Paris Hilton’s case has apparently raised serious First Amendment issues – a sentence that this IPKat never thought she would ever write. Hallmark’s attorney’s stated:

“Spoofing how a celebrity appears in a work that the public commonly associates with that celebrity is a standard practice of satirists, parodists and other speakers. [The Court’s] unprecedented finding that the publicity rights of an iconic celebrity may trump the First Amendment in the context of fully-protected speech that spoofs that celebrity ... creates uncertain and unreliable legal standards that will drastically chill speech if allowed to stand."

At issue in the appeal is the conflict of the 9th Circuit’s decision with the court's precedent in Hoffman v Capital Cities (2001) which held that an image portraying a celebrity’s name and likeness was transformative (i.e., the addition of creative contributions to the likeness) and therefore protected under the First Amendment. The Court there held that the image of Hilton as a waitress was not sufficiently transformative because Hilton had acted as a waitress on her show “The Simple Life”. The question that the Court of Appeals will hopefully answer is exactly how much transformation is required for a defendant to avail themselves of a claim for misappropriation of publicity.

Method of treatment claims in the US: a foreigner asks ...

A colleague who practises a long way from the United States has some questions concerning that country's patent law ("the envy of the world", as recently described in an Innovation Alliance circular) and thinks the IPKat's readers (or at least some of them) might be able to assist in answering them:

"USPTO allows “direct” method of treatment claims, ie, “A method of treating disease X, comprising …” I understand that the US Patents Code exempts from patent infringement a medical practitioner’s performance of a medical activity, ie, “A method of treating…”.

If the Code provides a blanket exemption to medical practitioners, then

(i) who infringes “method of treatment claims” in the US?
(ii) who is the target of such claims in US?

Could someone please point to a relevant case law in US.

A check of the MPEP (35 USC 287 (6)(c1 &2)) confirms the above but reveals that

(2) For the purposes of this subsection:
(A) the term "medical activity" means the performance of a medical or surgical procedure on a body, but shall not include (i) the use of a patented machine, manufacture, or composition of matter in violation of such patent, (ii) the practice of a patented use of a composition of matter in violation of such patent, or (iii) the practice of a process in violation of a biotechnology patent.

Does that mean that "method of treatment" claims follow rights granted for, say, "use of patented composition/patented machine", and therefore afford but a very "thin" blanket of exemption for medical practitioners?".

The IPKat would not dream of answering any questions involving US law, even though he's always happy to guess them, so he leaves it to his learned readers to provide some guidance.

10 Days Later: Coming through the Courts

Earlier this month, the IPKat brought news, via Annsley Merelle Ward, of the likely legal spat over the publication of a sequel of sorts to JD Salinger's Catcher in the Rye (see here). Annsley has now updated the Kat on this week's developments.

Right: here's the rye -- but where's the Catcher?

Annsley writes:

"After over an hour of argument in New York City, US District Judge Deborah Batts temporarily blocked publication in the United States for the next ten days of the unauthorized sequel, 60 Days Later: Coming Through the Rye. Having already ruled that there exist substantial similarities between the sequel and the original book, District Judge Batts is using those ten days to determine whether the sequel qualifies as "fair use" of Salinger's original work.

The lawyers for the sequel's author, Fredrick Colting (writing under the pseudonym JD California), argued today that 60 Years Later was a work of meaningful criticism of Catcher in the Rye and therefore benefited from the fair use defence under US copyright law. District Judge Batts stated that the next ten days will be used not to assess whether sequel's criticism of Salinger's work is sufficient to qualify for the defence of fair use but to ascertain whether the alleged criticism exists at all. At the end of the ten days she will decide whether to impose a permanent ban on publication in the US or to schedule a full trial.

As reported by Associated Press, Colting's lawyer Edward Henry Rosenthal claimed that injuncting the book prior to a full exploration of the book is "a prior restraint that raises very serious First Amendment questions". A lawyer for Salinger, Marcia Beth Paul, responded that prohibiting publication of a book that infringes another work's copyright is not akin to the banning of a book. Although there is undoubtedly an interesting debate as to whether copyright law should be permitted as a mechanism of quasi-prior restraint of freedom of speech, I have a feeling that the defence lawyer's arguments may not have as much mileage in court as they may have hoped.

Not failing to disappoint, District Judge Batts added that, despite the lack of legal precedent that holds that a purely literary character (absent any artistic characterizations via drawings or photographs) could be protected under copyright, Salinger's character Holden Caulfied may in fact be entitled to copyright protection. "It's a portrait by words," she said. "It is difficult in fact to separate Holden Caulfield from the book." I wonder if the question District Judge Batts will be asking is: If a portrait is worth a thousand words, how many words make up a portrait? I am unsure whether any judge would voluntarily want to be making a ruling on this question.

The written judgment is expected in the next ten days, or in the words of District Judge Batts "as soon as I can".

I can't help but echo the oracle that was IPKat's prediction two week's ago: Regardless of the decision, this case is destined to be subject to its own sequel in the US Court of Appeals".

Sources: Associated Press articles here and here; New York Times here
All available case documents pertaining to the case, including dockets, orders and applications, can be found here

More about rye here

Whiskey and rye here ... and hear

"If you have something to offer, someone will learn something from you"

The title of this piece, as every scholarly feline knows, is from chapter 24 of The Catcher in the Rye, the classic novel by the reclusive one-hit-wonder JD Salinger. Acute readers of the popular media will have noted that legendary literary lion has roared -- and the world of intellectual property has heard his call. The IPKat's friend Annsley Merelle Ward takes up the tale:

"Any “marvelous peace in not publishing” that JD Salinger, the reclusive author of The Catcher in the Rye, might have enjoyed seems momentarily at an end. As a fierce protector of his intellectual property, Salinger has instructed his lawyers (Davis Wright Tremaine, New York) this week to file a lawsuit in the US District Court in New York, claiming that a sequel entitled 60 Years Later: Coming Through the Rye infringed copyright in “both his novel and the character Holden Caulfield”. The suit aims to prohibit the publication, sale, distribution, advertisement or other dissemination of this sequel written by JD California and published by UK-based Windupbird Publishing, owned by Swedish company Nicotext. Windupbird, Nicotext and US SCB Distributors are all named as defendants in the suit.

On Monday Fredrick Colting, the founder of Nicotext, referred to the lawsuit as “completely ludicrous”, as reported in the Swedish paper The Local. Colting stated that even though 60 Years Later “was written in Salinger’s style ... words and imagination belong to everyone. You can’t copyright style. Otherwise, we wouldn’t have any books left”. However paragraph 4 of the lawsuit claims that 60 Years Later has gone further than this in copying The Catcher in the Rye’s structure, locations, characters and voice.

Assuming that Salinger’s lawyers can make out a prima facie case for copyright infringement, their main battle will occur later in disproving that the US affirmative defence of fair use does not apply -- specifically, that 60 Years Later is not a parody of Catcher. Fair use is a defence to copyright infringement if use of copyright material was for a limited transformative purpose. US courts will look to the four factors outlined in section 107 of the Copyright Act 1976 to determine whether a work is a parody: (1) the purpose and character of the use in 60 Years Later; (2) the nature of the copyrighted work; (3) the amount and substantiality of the copying; (4) and the effect of the use upon the potential market for or value of Catcher. It is argued that Salinger’s lawyers may have most difficulty in arguing the first factor or what is known as the “transformative test”, i.e. that 60 Years Later did not sufficiently transform Catcher into a new work. They also may encounter difficulty in arguing the third factor, i.e. that 60 Years Later copied a significant qualitative and qualitative amount from Catcher.

The preliminary hearing is expected at 2:30 pm on Monday 8 June 2008 before presiding judge Judge Deborah A. Batts [not Katts?]".

Annsley looks forward to seeing how quickly this case will be settled or, if not, how the arguments for the protection of a literary character under copyright will be advanced. Merpel says, how fortunate we are in the legal world of IP litigation to have our own guaranteed sequels -- we call them "appeals" ...

Reports on this dispute here and here
The author of 60 Years Later here
60 Years Later: the book
Salinger’s last public interview here
Cat Salinger has a sinking feeling here

Hands off our news says Associated Press

The IPKat has learned from the Financial Times that Associated Press is planning to crack down on sites which make unauthorised use of its members' content. The AP Chairman told the AP annual meeting

'We can no longer stand by and watch others walk off with our work under misguided legal theories. We are mad as hell, and we are not going to take it any more'.

He went on to say that AP would pursue 'legal and legislative remedies' against those making unauthorised use. AP also plans to develop new search pages for breaking news stories, and a rights management system.

The announcement takes place against a background of declining newspaper revenues.

The IPKat finds this troubling on a number of levels. Protecting news sounds a bit like protecting facts, which the UK doesn't like (though the US does have an action for the misapproriation of news). He's not sure about the 'misguided legal theories' - is this fair use? If so, what makes it misguided? Likewise, pursuing legal remedies is fair enough but pursuing legislative remedies sounds rather like not liking the law and therefore assuming that the legislator will change it for

Waxman bill rises from the ashes

The IPKat's friend Annsley Merelle Ward (Gallant Macmillan LLP) has been busily tracking the latest developments in the US with regard to biologics. She writes:

"President Obama's budget proposal last month called for greater facilitation for the production and marketing of generic versions of biologics -- the fastest growing sector of the pharmaceutical industry. Answering President Obama’s call last week, Representative Henry Waxman (D-California) ‘re-introduced’ a bill which would provide for regulation that would enable generic drug makers to produce copies of biologic medicines by proposing that such brand-name biologics be granted a guaranteed period of market exclusivity distinct from any other patent protection available to them.

Right: Rep. Waxman, as viewed by his supporters

The production and marketing of generic biologics is currently hindered in the US because the Food and Drug Administration (FDA) lacks authority to approve generic versions of expensive drugs. This has the effect, as argued by proponents of the Waxman Bill, of enabling pharmaceutical companies to “charge monopoly prices even after all patents have expired”. Representative Waxman previously attempted to pass similar legislation without success but now, with a specific mention of the need for such a measure in the President’s budget, chances of success under this Administration may be greater.

The Waxman Bill would allow five years of exclusive marketing for new brand-name drugs, with three additional years for modifications to that drug. Predictably, the pharmaceutical industry is demanding a longer 14-year term. However, with pharmaceutical companies starting to acknowledge the attractiveness of entering the generic biologics sector themselves (see Merck’s CEO Dick Clark’s announcement in December of last year), such demands over the Bill’s proposal may be short lived.

We wait in eager anticipation to see how well the latest Bill incarnation survives in comparison to its previous predecessors and whether there will be a warm reception to the Bill from the EU after the Commissioner for Competition’s earlier denunciation of the pharmaceutical industry’s obstruction of the production and competition of generic drugs". 

The IPKat thanks Annsley for keeping him up to date, and he looks forward to learning what happens next. Merpel's chuckling at the imagery. Last week we were all following a straw man; this week it's a wax man ...

Fair use -- a fair(y) tale ...

Doubtless there will be among the readers of this weblog many sophisti-kats who see all the movies as soon as they're released. Even so, the IPKat makes no apology for recommending everyone interested in copyright to take a few minutes off from their lives to view this delightful little morsel. Called 'A Fair(y) Use Tale', it uses Disney images and clips from some of that company's most popular cartoon films in order to make some telling points about the legal nature of fair use doctrine -- at least in the United States -- and about corporate attitudes towards copyright protection. With the support of Lawrence Lessig and the Stanford Fair Use Project, there was only going to be one winner ...

The IPKat thanks, Louise Block, for introducing him to this film -- and also for her link to the blogsite of Nina Paley ("America's Best-Loved Unknown Cartoonist").

Is it a bird? Is it a 'plane? No...it's Judge Stephen G Larson

United Press International reports that the heirs of Jerome Siegel, one of the creators of Superman, has won the right to a share in the man of steel’s copyright. Siegel and his co-creator, Joseph Schuster, signed away the copyright to DC Comics for $130 seventy years ago. The decision may pose a challenge to Time Warner’s plans to make new Superman films in the coming years.

IESB.com claims that what this decison actually means may be more complicated than one would expect since the award concerns Superman’s first appearance, and he evolved after that date, with kryptonite and the Daily Planet not coming until later.

The IPKat says this is a toughie. While we might want to reward authors’ whose works have become unexpectedly successful, if we’re too willing to vary assignments retrospectively, entrepreneurs won’t enter them at all and the authors will lose out.