Wednesday whimsies

The IPKat's friend, Glasto Guru and 1709 Blogger Ben Challis, kindly drew his attention to this little snippet from the CMU Daily:

"Sony changes network terms to prevent future class actions 

State-of-the-art Play Station in the analogue era ...

Sony Corp is facing another tricky PR challenge as tech blogs and news sites around the world note a change to the terms of service attached to the electronic and entertainment giant's PlayStation Network and Sony Entertainment Network, the latter the new name for the recently rebranded Qriocity service. 

Under the new terms, users must commit to not participate in any class action lawsuits regarding any future security breaches on the Sony network. As users have to accept the new terms in order to log on to the Sony system, and given that many will do so without even reading the new conditions, some have criticised the change [Some courts have held that terms which no-one can be reasonably expected to read don't form part of the contract: see eg McCutcheon v MacBrayne]. Though given that one class action lawsuit launched in the US earlier this year, after that very high profile data spill on the Sony network, could cost the firm billions, some bad press now to reduce the impact of future action is probably worth it [Is there any suggestion that the bad press might affect goodwill in the Sony brand and the popularity of its products? Merpel doubts it]. 

Under the new terms, if users felt they had suffered damage due to a future security lapse on the Sony network, they would have to pursue their own individual case against the electronics firm - initially via a Sony selected arbitrator - rather than relying on others to launch a so called class action suit where they too could win compensation if the litigation is successful, even though they are not directly participating in the legal case. The new terms will mainly affect users in America, where class actions are most common, though similar collective action systems do exist in some other jurisdictions, including some in mainland Europe. 

Users can actually opt out of the new anti-collective-action term, though to do so they must send a letter (not an email) to Sony Entertainment's LA headquarters. And critics say that most users won't be bothered to that, or even get as far as reading the small print in the new user agreement that details the opt out option. 

According to the BBC, a class action lawsuit filed against Sony in the US in April relating to the big data spill could cost the firm billions, despite the company having already offered compensation packages to the 100 million plus users worldwide whose personal information was leaked during one of several hacking attacks on the company's servers [Here's an advantage of facing a class action, surely: a one-size-fits-every-class-member compensation payment, instead of bespoke loss-related awards?]. The most severe attack ... led to the PlayStation Network being offline for 40 days. At the time Sony was criticised for how long it took to admit that so much personal data had been leaked".

News from the blogosphere.  German patent practitioner, enthusiast and GermanIP blogger Michael Thesen has joined the PatLit patent litigation blogging team.  A patent attorney with Beetz & Partner, Munich, he also has a very sweet smile (left). Kenya has a new IP blog, IPKenya, not to be confused with IP-Kenya.  The IPKat's old friend Owen Dean has just started an IP blog under the name of The Anton Mostert Chair in Intellectual Property, which Owen holds at the University of Stellenbosch, South Africa. Good luck, Owen, we look forward to following your thoughts. Congratulations are due to the MARQUES Class 46 European trade mark weblog, which has now notched up its 2,300th email subscriber.

Recently posted. From the jiplp weblog come two Current Intelligence notes that are destined for publication in the Journal of Intellectual Property Law & Practice (JIPLP): the European Patent Office's very own David Rogers writes about those endearing little creatures we know and love as pharmaceutically active polymorphs, while Darren Meale, now with SRN Denton, looks at the exciting prospects for legal relief against internet service providers following the Newzbin2 litigation. The seventh in the series of articles for IP Finance by Keith Mallinson (WiseHarbor) argues powerfully in favour of IP protection for software patent here.  Afro-IP has a poll at the top of its home page side bar on South Africa's proposed legislation on traditional knowledge (click here for some background). Afro Leo urges you to vote, regardless of the outcome. Over in the Land of Fairness Compensation, Monika Bross (1709 Blog) reviews the prospects for success of the late Elvis Presley's daughter and Elvis Presley Enterprises LLC in their current German compensation claim.

Venue needed.  The IPKat's annual IP Publishers' and Editors' buffet, which will now be held on Wednesday 7 December [please note change of date, if this concerns you!], is in need of a generously donated Central London venue and hospitality.  The buffet meeting, which is free to attend, brings together around 45 to 50 often competing publishers, editors and media contributors within the field of intellectual property hard-copy and online publishing.  Previous meetings have been attended by participants from Germany, the Netherlands, Switzerland and even Japan, and guest speakers have included Judge Fysh QC, Tibor Gold MBE and Christopher Morcom QC.  If you'd like to host this meeting, please email IPKat team member Jeremy here, though it may take him a day or two to get back to you.

Wednesday whimsies

Ha anyone a good caption
for this piece of P2P artwork?

It is sometimes said of dogs that, when they get their teeth into a nice juicy bone [Merpel queries the use of the term "juicy bone" -- the only bones she ever sees are dry], they are reluctant to let go of it.  The same actually applies to Kats, and a juicy bone of which this particular Kat is especially fond is the UK IPO's version of the Peer to Patent trial.  Latest news of this exciting project can be found on the trial's web page here.  Incidentally, the IPKat really liked the piece of artwork on the Peer to Patent page, which is depicted on the left. With the little penguinlike icons surrounding their prey, arrows pointed ready to shoot, the illustration reminded him of the Pollaiuolos' Martyrdom of St Sebastian (right).

An early applicant for one
of the new gTLDs

On Tuesday morning this Kat braved the storms to attend a seminar on the new gTLD regime for domain names, hosted in the London office of Taylor Wessing. The star attraction was veteran domain name guru and MARQUES Council member Nick Wood, wearing his Valideus hat. Nick's presentation struck a curiously neutral stance as he explained the strengths and weaknesses of the controversial ICANN operation. The IPKat's takeaway message was that we are all guinea pigs and, despite a decade of consultation, rule-drafting and fine-tuning, no-one can predict how the prospect of becoming the registrar of the dot-whatever domain of one's choice will actually work out. Another point that struck him as significant was the fact that ICANN's approval would be needed in respect of any attempt to transfer a registry, or operate it under changed ownership. This would appear to mean that, for instance, if a major bank (let's call it Megabank) which acquired and operated the dot-megabank gTLD, hit financial difficulties and was taken into public ownership by the government, its continued ability to run the dot-megabank gTLD would be contingent on ICANN deciding to approve it. This could lead to political strains as well as embarrassment, this Kat thinks.

A day later, the same Kat braved the brisk and bristly breezes that swept Lincoln's Inn to attend the Hardwicke seminar on Initial Interest Confusion, yet another American invention that is taking root in Europe [and not a moment too late, adds Merpel, who thinks it's cool].  Two star speakers were lost from the line-up, Annsley the AmeriKat being stranded in Italy by local industrial (in)action that grounded all flights while Alice Gould had to put in a court appearance [Nothing to do with the London riots, we are informed]. Anyway, Simon Bennett (Fox Williams) filled in admirably for Alice while IPKat team member Jeremy -- who only two short days ago declared on this weblog that he had given up all lecturing -- pretended to be Annsley and delivered her paper, managing to keep going for 42 minutes despite a power cut and the disappearance of Annsley's PowerPoimts.  If you missed the seminar, don't worry: two of the Kats' friends have been taking notes which, once edited and tidied up, will be placed before you.


Around the weblogs.  On the 1709 Blog, Hugo Cox has a quick and entirely serious question to ask the Pirate Party UK, having read its 2011 manifesto.  Gino Van Roeyen regales MARQUES Class 46 readers with news of General Biscuits' triumph in a dispute as to whether rights in its iconic TUC biscuit packages were being infringed by the upstart brand Apéro.  Leigh Smith (McDermott Will & Emery) explains the thrust of the EU's Memorandum of Understanding on the sale of counterfeit goods on the internet for the benefit of jiplp readers.  Finally, IP Tango's Patricia Coverrubia covers the fascinating facts behind the battle of Kellogg's and the Maya Archaeology Initiative over a toucan called Sam.

Harry Bloom was an extraordinary individual.  A witty, gregarious and talented man, his life encapsulated several careers and a multitude of adventures before he died of a stroke at the early age of 68. The brief note on his life on Wikipedia scarcely does justice to him.  During the 1970s he was a founder-director of the  University of Kent's Unit for Legal Research in Computers and Communications which, like Harry, died young after the university decided that there was no future for the subject and closed the unit down.  Among those whom Harry -- a passionate enthusiast for intellectual property, information technology and cybernetics -- persuaded to enter the territory of information and communications law were IPKat team member Jeremy and the University of Southampton's Professor Stephen Saxby.  Now David Goldberg (University of Oxford, Centre for Socio-Legal Studies) has emailed to say that he and Stephen are putting together a seminar, to be held in Southampton in late 2012, to commemorate the centenary of Harry's birthday, 1 January 1913.  If you too have been touched by Harry's magic and/or just want to be kept in touch, email David here and tell him.

Wednesday whimsies

Having drawn the attention of readers to the PressTV production on the police, the press and phone hacking on Monday here, the Kat can also recommend that they take a look at Four Corners' "Bad News", here on ABC (that's the Australian Broadcasting Corporation), which the IPKat's friend Mary-Ellen Field (Brand Licensing) describes as "definitive".

Another friend of the IPKat, copyright scholar and musicologist Andreas Rahmatian (University of Glasgow), sent him " Intellectual Property and the Concept of Dematerialised Property" earlier this year, this being a chapter of a book, Modern Studies in Property Law, edited by Susan Bright and published by Hart Publishing (you can get details of this book here). The IPKat is pleased to say that Andreas has placed this chapter on SSRN here, to enhance access to it.  Having read it, the IPKat warns readers that this is a piece of genuine legal theory and not a how-to-do-it piece for practitioners. It is also a piece that does not pander to the prejudices of Anglo-Saxons or purveyors of Hohfeldian analysis of jural relations. In fact, if you think you know what reality is, read this article and prepare to be challenged!


Around the weblogs. The 37th in the long-running soap opera that is PatLit's PCC Pages series assesses whether IPOff has complied with the judge's order to disclose documents to the claimant Cautious Co, here. If you never knew about the US termination right, a post by the 1709 Blog's Aurelia J. Schultz will help you.  Tomorrow (Thursday 1 September) is National No Music Day in Nigeria, as Kingsley Egbuonu reports on Afro IP.  Over in India, a guest post from Tania Sarcar relates how poor old John Doe is at the receiving end of yet another court order, this time for illegally broadcasting or streaming 'The Bodyguard'.


What the naughty Kat found. Tidying his office, this Kat found a couple of very worthy intellectual property books that were published last year and which he should have reviewed when they first arrived. While it's a bit late to review them now, he can at least draw them to the attention of his readers and confirm that there's plenty in them for the discerning IP practitioner, student or enthusiast. They are

• European Trademark Law: Community Trademark Law and Harmonized National Trademark Law under the powerful triple-authorship of Tobias Cohen Jehoram, Constant van Nispen and Tony Huydecoper. This is a confident, authoritative explanation of law which will throw the English reader into a panic since, while the book is written in English and the title refers to "harmonized national trademark law", it's not about the English experience of trade marks in Europe at all. The authors are (despite the quality of their English) Dutch and the text is written from a Dutch perspective. Thus the introduction is followed, not by a review of Euro-generalisations, but by a description of the statutory basis for Benelux law.  The Belgians shouldn't think that this is all about their legal heritage though: in the table of jurisprudence, Belgian cases are listed under 'Foreign Courts'. The book's web page is here.
  
  


• Trademarks and Unfair Competition (8th edition), by David C. Hilliard, Joseph Nye Welch II and Uli Widmaier.  This is a whopper of a case book, which has a high-risk rupture factor (the publishers gave up numbering the pages after they got to 990). Each edition of this much-loved collection gets a bit more daring than its predecessor: this one has a fresh new chapter on that awkward interface between freedom of speech and those "terrible twins", trade marks and unfair competition, together with some timely and helpful material on the rights of foreign trade mark owners in the US and the extraterritorial jurisdiction of the US courts. Internet and e-lawyers will be pleased with coverage of Federal Trade Commission and Food and Drug Administration developments addressing deceptive advertising and online marketing schemes.  The book's website is here.

Wednesday whimsies

"Taking the Pulse of the IP Industry" -- that's the title of an online survey conducted by General Patent Corporation, which explains: it's

"... our first-ever survey of the intellectual property community. And one lucky survey participant will win an Apple iPad!

The input from the survey will help us to better address the IP issues that concern our readers, and it will give us direct input into the thinking of the IP community regarding the key issues it faces, such as the America Invents Act patent legislation currently before Congress".

Whether you want the Apple iPad or prefer a Samsung product (see earlier post here), this is a perfect opportunity to tell the Americans what you think of the US patent system [and why it's not good for the US to be out of step with the rest of the world, whispers Merpel ...]


On the subject of Apple and Samsung, one of the most striking headlines of the past few days has been ""Samsung uses 2001: A Space Odyssey as prior art in Apple’s iPad lawsuit", which leads a report that

" ... Samsung is using the above clip as a piece of evidence in its defense against Apple's patent lawsuit over the Galaxy S and similar tablet computers.

Samsung notes that "the tablet disclosed in the clip has an overall rectangular shape with a dominant display screen, narrow borders, a predominately flat front surface, a flat back surface (which is evident because the tablets are lying flat on the table's surface), and a thin form factor" ...".

The IPKat, who thanks James Gray (Withers & Rogers LLP) for spotting this, wonders whether the 2001: A Space Odyssey clip constitutes an enabling disclosure.

Definitely a good deal ...

There are some special conference deals for IPKat readers right now.  In particular, Informa have 10% discounts for you at three of its forthcoming events in London:

• 6 to 7 September 2011, Pharmaceutical Law Academy. Quote VIP Code FKW82227IPKL when you register.
  


• 28 September 2011, Online Brand Protection 2011.  Quote VIP Code FKW82229IPKL when you register.
  


• 6 October 2011, Social Media & the Law. Quote VIP Code FKW82232IPKL when you register. 

There's no discount for this event, but at least all proceeds go to charity. It's Credits for Conservation's Advanced Patent Law Seminar: Prosecution, Litigation and Claims, which takes place on 16 and 17 October at the Four Seasons Resort in Jackson Hole, Wyoming. further information can be found here and the beneficiary is/are Friends of the River Teton.


Also in the US, but not in Jackson Hole this time, is a Forum featuring Chief Judge Paul Michel, a USPTO Official and other expert participants on "The Overhaul of U.S. Patent Law". This takes place in Washington D.C next week, on 29 August. You can find details here.

The IPKat has always
enjoyed dates ...

Calculating dates. The IPKat's old friend and former blogging colleague, the legendary Tufty, has just sent him a breathless missive in which he excitedly writes:

"I brought a point to my readers' attention back in June relating to the case of Rigcool v Optima Solutions (see my post here).  This related to the two year period for filing entitlement proceedings under the UK's Patents Act 1977, section 37(5), which turns out to end on the day before the anniversary date.  This has, as I predicted, caused the Intellectual Property Office to do some thinking about other time periods that also use the words "beginning with", of which there are many throughout the current Rules, which were redrafted wholesale in 2007 (for what reason I known not - see the IPKat post here).  The IPO has now issued a practice notice, in which it says that, as from now, it will consider all "beginning with" periods to be "inclusive" (i.e. a period beginning with a day of a month will end on the same day of the later month, rather than the day before).  For now, this will be done by extending the time periods using the Comptroller's discretion under Rule 107(3), but eventually they aim to have the Rules changed so that different wording is used.  

 Adds the wonderful Tufty: I can only wonder why this wasn't thought of when the Rules were originally drafted.  Thanks, Tufty, mew his friends.

Around the weblogs.  Can there be many greater pleasures than that of savouring a book review by Chris Wadlow? Here's his take on the 17th edition of Terrell on the Law of Patents, currently on the jiplp blog and soon to be published in the journal with which it shares its acronym.  Meanwhile, on IP Finance, Grégoire Marino casts an eye across Hewlett Packard's future prospects, based on its current activities in the IP market.  PatLit offers comments on three recently published books on patents, and alerts readers to the existence of a further two. Finally, a thoroughly industrious Ben Challis, writing on the 1709 Blog, reviews a controversial New York District Court decision on Cloud Lockers and 'safe harbours' against copyright infringement and asks if the DMCA is biased.

Hargreaves.  Read this once and understand it, if you can.  You are now being requested to respond to the UK government's response to the recommendations of an inquiry which were based on your earlier responses to a request for responses which was called for by the inquiry.  To put it another way:

"The Business, Innovation and Skills Committee [of the House of Commons, the lower but more powerful of the two British legislative chambers] has announced its intention to conduct an inquiry into the Hargreaves Review of Intellectual Property and the Government’s response to that Review.

This balloon is powered
by hot air generated by debate
over British IP reform 

The Inquiry will focus on

• The recommendations set out in the Hargreaves Review on Intellectual Property and the Government’s plans for the implementation of its recommendations.


• The Committee will be reviewing the submissions made to the Hargreaves Review and requests that evidence be confined to points not already made in those submissions.

If you wish your evidence to remain confidential, please contact the Committee staff".

Guidance to submitting written evidence is posted here.  Written evidence must be submitted by 5 September [Merpel adds, "but it doesn't say which year :-)"].

Thanks to Antonis Papasolomontos (BioIndustry Association) for spotting this.

Wednesday whimsies

Only seven more places are available for next month's Initial Interest Confusion seminar, hosted at Hardwicke in London's lovely Lincoln's Inn on 7 September. Speakers are Ben Allgrove (Baker & McKenzie), Alice Gould (Wedlake Bell), Annsley the AmeriKat (Collyer Bristow) and Mark Engelman (Hardwicke), with IPKat team blogger Jeremy in the chair.  Programme and registration details of this IPKat-driven event are here.

Around the weblogs. The IPKat's Turkish friend and scholar, Mehmet Artemel, has given a pretty thorough review of the UK Intellectual Property Office's recent "Intellectual Asset Management for Universities” on Peter Groves' Ipso Jure weblog here.  The Journal of Intellectual Property Law & Practice's jiplp blog offers a handy case note, "Exceptions to public lending rights and authors’ remuneration: the ECJ in Vewa v Belgium" here; the authors are Enrico Bonadio (City University London) and Marco Bellezza (Portolano Colella Cavallo, Italy).  If you're feeling melodramatic or really hate that feeling of impotence that arises when you know there's an official web page out there with the information you want but you just can't find it, try "Wuthering Sites: a drama for users of the Patents Court", a guest post by Vicki Salmon (IP asset) on the PatLit weblog.   Finally, if you are fascinated by German copyright but can't tell your Johnny Depp from your Marcus Off, take a quick peep at Monika Bruss's "How Fair is Fair?" on the 1709 Blog.

Famous Marx

Late last month Mr Maza from Mexico told the IPKat excitedly about his county's list of certified famous trade marks. The Kat was sure that Mexico was not the only country that had such a list and asked his readers for help.  Sure enough, with the assistance of the ever-helpful Frederick Mostert, the Kat can tell you that the following countries have famous marks lists:

China, where lists are published twice a year by the State Administration for Industry and Commerce
Japan – where marks designated in decisions as being well known are listed by the Industrial Property Digital Library
Czech Republic. This list is for information only, and has no legal status
Russia

Notorious Marx

Mexico: in relation to declarations of notoriety and fame
Ukraine
Belarus
Brazil – This increasingly important jurisdiction maintains a list of famous or highly reputed marks (that status is recorded against the mark concerned)
Bulgaria
India
Thailand
Turkey (though the current status of list is not clear)

DNA patent-y thing. Are you interested in the impact of DNA patents on diagnostic innovation? Have you the patience to read an overview of recent empirical research on the impact of DNA patenting in relation to diagnostics which focuses on reviewing published academic research?  Do you yearn to take action but just need that little bit of extra guidance? If so, the Human Genetics Commission (HGC) Seminar Report on Intellectual Property and DNA Diagnostics could be just the thing you're looking for. This report is guaranteed to contain no fewer than four recommendations for you to consider. It weighs in at 491KB, contains 20 surprisingly readable pages and can be downloaded here.  Thanks, Chris Torrero, for drawing it to this Kat's attention [Merpel's sulking that there isn't an equivalent of the HGC for cats. Humans aren't the only life forms with DNA, she moans ...]. nb This HGC isn't the other HGC -- the Human Genome Center which, as you can guess from the American spelling of Centre, is based in Tokyo, Japan,

Wednesday whimsies

When Merpel confessed her fear of being lost in IKEA (see earlier item here), blog reader and Katfriend Pam Chestek kindly reassured her that she would not be alone. Connoisseurs of the Cat-meets-IKEA marketing ploy will appreciate the links which Pam has kindly supplied here and here.  Merpel adds, on the subject of IKEA: the Kat's recent post reported on the blatant emulation of Apple and IKEA store interiors and product ranges in China. She now learns from a friend currently living in that large and mysterious land that it is no longer possible for its inhabitants to access this weblog.  This is (so far as Merpel knows) the second time this blog has been cut off by the Chinese authorities.  She believes however that it is more important to report the truth than to acquiesce in behaviour in China which she would equally criticise if it occurred in her own country, or indeed any other.


If you haven't yet registered for the forthcoming IPKat-supported seminar on Initial Interest Confusion on 7 September, you're nearly too late. We're up to 62 registrants now and the hard-pressed staff at Hardwicke warn that we've nearly reached capacity.  So if you want to hear some excellent speakers, eat a delicious lunch and get an unobstructed view of the cuddly Mark Engelman as he holds forth on "Initial Interest Confusion: what does it mean for keywords and Google France?", book now -- or risk disappointment!

Around the weblogs.  The jiplp blog announces the publication of the September issue of the Journal of Intellectual Property Law & Practice, and you can read its editorial here on the delicate question of how we pay for the free or heavily subsidised intellectual property on which so many of us rely.  Art & Artifice has a splendid selection of "handbag + fashion" limericks, all beginning with the line "A stylish young model from France ..."  The 1709 Blog offers copyright problem-solvers a knotty problem regarding the legal status of some old correspondence here.  For patent litigators, PatLit's PCC Page this week reviews the issues arising from the apparently simple task of getting a defendant who is accused of infringement to give a proper product description.

The IPKat salutes his friend and fellow blogger Mark Anderson.  In May his firm was awarded the title of "Life Sciences Law Firm of the Year, England" by Finance Monthly magazine, and now he has personally won the accolade "UK Life Sciences Lawyer of the Year" in the Corporate INTL Global Awards for 2011.  Says the Kat, apart from being a nice guy Mark has been a tireless and enthusiastic promoter of the positive side of IP exploitation and is a great asset to the IP environment as a whole. Well done!

Wednesday whimsies

Around the blogs.  The IPKat's keen pursuit of fresh news in the continuing saga of the Red Soles, with Louboutin lining up against Yves St Laurent, has brought him to Charles Colman's Law of Fashion blog. Charles is an enthusiastic contributor to the LinkedIn Law of Fashion and Fashion+IP groups too.   Elsewhere, Canadian blogger Barry Sookman has done a major piece of work here in seeking to place the tetralogy of Big British Copyright Cases (LucasFilms, Meltwater, 20th Century Fox v BT and TV Catchuup) within the context of Canadian jurisprudence.  Wragge partner Paul Inman has exposed his puzzlement over the recent Advocate General's Opinion in the patent term extension case of Medeva to readers of The SPC Blog here).   There's also a neat note here on jiplp by Robert Kunstadt and Ilaria Maggioni on the recent US Therasense ruling on 'inequitable conduct' that can deprive a patent owner of his right to enforce his patent.


Chris Torrero was the first of a number of folk to prod this Kat into writing about the Myriad gene patent ruling in the Unites States. So sure was he that several other Kats would be writing about it that he sat back and thought of copyright ... but it was not to be. This note on GenomeWeb summarises the position:

"A US Federal Circuit Court of Appeals in Washington, DC, today ruled that US patent law allows for the patenting of human genes when it overturned an earlier district court decision that tests using isolated human DNA were invalid because genes were natural products. ...

The lawsuit claimed that Myriad's BRCA gene-related patents are invalid because genes are natural products that cannot be patented, and last year that position won over a US District Court judge in New York. 

In its appeal of that ruling, Myriad argued in April that its patent claims on BRCA genes, which it uses in its BRACAnalysis test for predicting individual breast and ovarian cancer risk, are in accord with US patent law. ... Myriad presented the view that isolated DNA is "a chemical composition which is not found in the human body, and which has important diagnostic and therapeutic uses that cannot be accomplished with a human's natural or native DNA as found in the body," according to a company spokesperson. 

In its ruling ... the US Court of Appeals said that it considered several issues that were brought forth in oral arguments and in amicus briefs, including one from the US Patent and Trademark Office, concerning whether isolated DNA was similar to naturally occurring elements such as lithium, or if it was something in part engineered by human development. The court also considered whether or not the plaintiffs in the suit had shown that Myriad's patents have caused any harms or hindered research on these gene variants. After reviewing a number of arguments, the three-judge circuit court stated that its decision that "isolated DNA molecules are patent-eligible comports with the longstanding practice of the PTO. ...".

Judging by the contents of this Kat's postbag, the debate is being conducted mainly on moral issues, and with not a little carefully-applied hysteria. He has seen few comments that focus specifically on the legal issues and how the facts of the Myriad patent measure up to them. His personal view is that, so far as he can tell, the majority decision of the Court of Appeals (which you can read here) is correct in law, but that the real problem lies downstream of the patent, in the realm of the control which Myriad seeks to exert over it. A healthy patent system will allow patentability in order to ensure that novel and inventive information is disclosed and to encourage and protect investment -- but it must be able to step in, where the public interest in healthcare is concerned, to ensure a greater degree of access and fair play than would be required if the patent were for a new device for chilling beer.  For further reading, Catherine Saez's piece here for IP Watch is a good place to start. Today's Managing Intellectul Property piece, here, looks towards the prospect of a Supreme Court ruling [Great, says Merpel, so long as we get something a little more decisive than Re Bilko Re Bilski].


Scams again.  The sparkling pen of the IPKat's friend Tony McStea, stimulated into action by yesterday's post here, has been busily creative again.  "They may be ordinary tramps and not Supertramps, but..."

I was a successful businessman
till I kept paying those fake
renewal notices 

It's scamming again
Oh no, it's scamming again
It gives us all such a pain
And sucks much cash down the drain
It's scamming again
I feel our effort's in vain
In IP it is a bane
And places us under strain 

Come on you scamming fighters
And don't you give the slightest
Quarter to those who would benight us
And take ground back again
It's scamming again...

You can check out the original ("It's Raining Again") here.

Wednesday whimsies

Photo from here

Putting life into IP book reviews. With a little bit of luck and a good deal of effort, there may be a real shake-up for the fusty, dusty world of book reviews -- the Journal of Intellectual Property Law & Practice (JIPLP) has just instituted a new, more transparent and, it hopes, more efficient scheme for getting IP books reviewed and then getting the reviews published within a reasonable time. At present, most books sent for review never end up getting reviewed or -- where they are reviewed -- by the time the review emerges it's of mainly historical interest. If you want to engage in a more meaningful review process, or are merely curious, click the jiplp weblog here.

An endangered species?

One big brand that will be a bit anxious at the moment is Lacoste, the fashion and leisurewear house which describes its ethos as "unconventional chic". No reader of this weblog with any human feeling can fail to be appalled by the dreadful massacre carried out last weekend by Anders Behring Breivik, and the Kats offer their sympathies to those who mourn the dead and to the whole Norwegian nation. Several sharp-eyed readers, led by Matt Dick (Bristows), have pointed out that the Norwegian killer has been portrayed in several mass circulation publications wearing a garment bearing the Lacoste crocodile (not alligator) logo. This is the sort of negative publicity that all brand owners dread and can have adverse repercussions right down the line, if public aversion leads to falling sales which in turn lead to traders losing their income and garment makers losing their jobs.




Is your brand green? The Interbrand list of top green brands was published yesterday, here. The site contains the usual stuff: methodology, interviews, comment etc -- and the full Top 50 list can be read here. For the record (and for those too lazy to read the whole list themselves), this year's Top Ten looks like this:

No need to be
green if you want
to be Green 

1 Toyota (Japan)
2 3M (United States)
3 Siemens (Germany)
4 Johnson & Johnson (United States)
5 HP (United States)
6 VW (Germany)
7 Honda (Japan)
8 Dell (United States)
9 Cisco (United States)
10 Panasonic (Japan)

Only two British brands made the top 50, both for banking (Barclays and HSBC, down near the bottom of the list) and none of the top brands had the word "green" in them. The IPKat says, well done Toyota: those Prius jokes are a small price to pay. Merpel says, there are much better Prius jokes around, but maybe Toyota is policing the internet and getting them exterminated because the funniest ones can't be found online. Readers: can you help?

Will Mike Medavoy be looking for
a star to play a 'miner' role ...?

A plot -- or a personal narrative? From the IPKat's ever-thoughtful friend Edward Smith (IPO) comes an interesting reflection: "I read that the 33 rescued Chilean Miners had, collectively, sold rights to a movie which had been bought by Mike Medavoy (Black Swan, Shutter Island). While most of us can grasp the notion of film rights to a book being sold (Harry Potter etc), rights to a 'story' is a vague notion which is alien to IP principles. The purchase is pretty meaningless since, presumably, movie 'rights' could also be sold by, say, the people who rescued the Chilean miners ..."  This Kat is not so sure he agrees with Edward about this.  It all depends what you mean by "story". If it is simply a plot or an outline, much will depend on the level of detail and complexity: "boy meets girl, falls in love, they fight, they make up again and live happily ever after" is not going to attract much in the way of legal protection. If however what is being sold is the right to relate a personal narrative or, in this case, a set of personal narratives which, like marrow, enrich the bare bones of the story and give it flavour, this is something that would lie beyond the ability of the rescuers, who would not have experienced it, to assign.


Sanitary toilets and expired patents.  The IPKat has received a thoughtful email from his old friend Richard Brown (De Sola Pate & Brown Abogados-Consultores, Caracas), who writes:

"The New Yorker published an extremely interesting article, "Hearth Surgery", in December 2009 by Burkhard Bilger. It details the developing world’s need for efficient non polluting stoves to stop smoke pollution and deforestation. Not a word was said about public domain patents. It could be that the vast reservoir of public domain patents could make valuable contributions to this effort. ...

I note Bill Gates´ Foundation has just started a search for a sanitary toilet for the developing world. Mr Gates would seem an ideal candidate to have his foundation approach the world's PTOs to help them computerize their expired patents to see if they could be used to help the developing world obtain cheep effective water treatment, stoves, lights, pumps, toilets, and other needed technologies".

This seems like a great idea to this Kat.  Does anyone have Bill Gates' email address (he doesn't seem to be a regular reader yet?)  And how many good loo patents can we send him?


Around the blogs.  A couple of landmarks are noted today: the 1709 Blog, which focuses specifically on copyright and has recently hosted a very lively debate over the fate of creative artistes following the posting of Leigh Harrison's Open Letter here, has now signed up its 900th email subscriber. Some way behind but growing handsomely, the jiplp weblog has now welcomed email subscriber number 500.

Wednesday whimsies

Don't gnash your teeth --
join IPSoc today!

Events in the offing.  The IPKat is getting increasingly excited at the seminar on Initial Interest Confusion on 7 September (details here), now that registrations have passed the 30 mark.  but that's nothing compared to Professor Lionel Bently's talk, "Leading UK and ECJ Judgments: Key Developments in Trade Mark Law (including Interflora v M&S)" next week for IPSoc, for which over 100 young, gifted and charming members of the IP professions have already signed up: some spaces are still available, rumour has it, so you too can be young, gifted and charming by association if you join them.

Media mogul and media mog. Possibly on account of the live broadcast of the grilling of media mogul Rupert Murdoch yesterday afternoon, this weblog received an unusually small number of visits, comments and general bits and pieces from its normally dedicated readership. Accordingly not everyone might have seen Save Our Cat! -- a post relating not to the media mogul but to our own media mog, in search of a new professional challenge.  Gratifyingly, while yesterday's responses were small in number, they were of excellent quality and are being up, but it's still not too late to express your interest.

A likely subscriber ...?

Here's a new set of law reports, the Information Law Reports, which is published by Justis [ah, says Merpel, this must be Justice for People Who Can't Spell] in collaboration with 11KBW (a set of rebranded barristers formerly known as 11 King's Bench Walk and boasting quite an interest in Information Law). Says the IPKat's old friend John Hull (Memery Crystal), the reports will feature cases on data privacy, the Freedom of Information Act "and so on" [phone hacking?, wonders Merpel]. You can get all the relevant details from Justis here.  Don't confuse these with the Information Technology Law Reports, published by Lawtext, advises the IPKat.

From Quidditch to Quids In:
Potter prevails as detractors
fail to make payment into court

Around the blogs. Thanks go to Chris Torrero (again!) for drawing the Kats' attention to an excellent summary on Patent Docs which was posted under the descriptively helpful title "USPTO Revises Requirements for Patent Prosecution Highway Programs".  The Art & Artifice limerick competition, for which first prize is free entry to this year's Handbags at Dawn IP and fashion conference, has now received some hilarious entries, and some slightly dubious rhymes for "France".  There are only a few more days to the close of The SPC Blog's "win a Bucknell book" competition [quick note to putative entrants: you don't have to nominate Brazil if you don't want to]. There's an enchanting little piece about burned DVDs being given away with every purchase of a $5 jewel case here on the 1709 Blog. and if that's not exciting enough, the same blog comes with news of the obituary of Willie the Wizard v Harry Potter and a guest post on the cause celebre in the making, the prosecution of Aaron Swartz. Finally, did you know about the PROSUR pilot project in Latin America? If not, take a quick look at IP Tango here.

Into battle ...!

This Kat congratulates ACID (Anti Copying in Design) CEO Dids Macdonald on her appointment as Vice Chair of the Alliance Against IP Theft. Dids replaces the outgoing Vice-Chair, Anti Counterfeiting Group Director General Ruth Orchard. says Dids:

"There has never been a more important time, in The Alliance's impressive history, to play a key role in its future and particularly now that its resonance is being heard loudly and clearly across the entire IP landscape [But that's the easy bit, frets the IPKat: we have to get the message beyond the IP landscape and make sure it stays there!]. I look forward to representing the issues and interests of all the Alliance's members, who are varied and diverse, but unified in the recognition of IP as a positive force for the UK's growth strategy. ... Latest figures confirm that UK businesses as a whole invest £65 billion in IP creation of which £23 billion is spent specifically on design. The tide cannot change too soon to see tangible evidence from Government that the creative and knowledge economies will provide that vital conduit providing growth and employment".

Good luck Dids, and thanks for all your hard work Ruth, says this Kat, we need more fighters like you. Putting aside for a minute the relevant IP and ethical issues, it would be great if we could clone you both ...

Wednesday whimsies

Getting fresh.  The SPC Blog has traded in the phoenix logo which it has used since its launch in 2008.  In place of the old bird -- a rather tired piece of clip-art which some other folk also use -- the blog now boasts a brand-new, handsome and dynamic phoenix (right), commissioned from web designer Chana Simons. Incidentally, this blog is always in search of information, news and views concerning patent term extensions. If there's anything you'd like to share with an enthusiastic readership (the blog has over 1,100 email subscribers, for a start), do let its blog team know.

North Sea oil: more lucrative than IP?

"A World in Change -- Changing IPR?" is the title of a two-day centennial celebration of the Norwegian Industrial Property Office, Oslo. The event takes place on 12 and 13 October and full programme details are available from the conference website here. The IPKat congratulates the Office for reaching this milestone. It is true that IP offices, which are not particularly subject to market local forces, do generally reach their 100th birthdays if the country they serve is still in existence a century after they're founded, they still have to cope with legal and technological change as well as with enhanced public expectations as to what they're supposed to be doing -- and, from what he hears, the Norwegian office manages that pretty well. Merpel wonders how many years it will take between Norway running out of North Sea oil and joining the European Union ...



A student from a small, non-mountainous European country which is celebrated for its chocolates and waffles is currently studying for a Masters degree in intellectual property law in London. He writes:

In training: the IPKat prepares
for the 2012 Sleep Marathon

"Dear IPKat, I am writing my dissertation about Ambush Marketing, particularly about the London Olympic Games Act and whether this Act violates article 10 of the European Convention on Human Rights (freedom of commercial speech). This is a more difficult question than I first thought. The issue of Art 10 and anti-ambush marketing laws (such as those protecting the London Olympics) have not been subject to judicial consideration as far as I am aware [This is true, says Merpel, but the Games are still a year away and there hasn't been much opportunity to litigate the laws in question]. Do you have any idea if this is correct? [Yes, I do, says the Kat -- but I'll give readers a chance to air their opinions first] Is it even crystal clear that Art. 10 of the European Convention on Human rights
applies (directly)?

In my view the freedom of expression issues arise by virtue of the severe restrictions on the ability of local businesses to make reference to a major event taking place within the community. There may be other issues as well -- certainly the time and space restrictions on commercial expression by anyone other than official sponsors in certain zones and corridors around event venues may be suspect [might the laws in question be a disproportionately anticompetitive response to the need to protect investment, wonders Merpel ...]. 

Do you have any idea if there is any case law or statutory provision which could prove there is an infringement of art.10 as regards the London Olympic Games Act?". 

Readers -- this is your chance! If (i) you hate the Olympics, (ii) love the Olympics but hate the ambush marketing provisions or (iii) want your name to be gratefully acknowledged in an LLM dissertation, please post your comments below.

If you thought this could be you
after 14 July -- think again!

Copyright 1: a small correction. In this week's Monday Miscellany the IPKat reported that the Irish Orphan Works consultation closed on Thursday 14 July. However, Richard Nugent has pointed out that, if you click here, you will discover that the closing date for submissions on orphan works is 30 September 2011. This is of course bad news for all of you who thought you'd be let off having to make submissions simply because there wasn't enough time, and that you'd be able to nip off to the beach for a bit of rest and recuperation.  Anyway, thanks so much, Richard, for letting us know!

Copyright 2: a big debate.  A report on yesterday's debate on whether we come to bury copyright or to praise it is currently under preparation and will be posted on the 1709 Blog (readers of this blog will be tipped off when this happens). Suffice it to say that a gratifyingly large audience of some 200 enthusiasts enjoyed the cut and thrust of debate and that a gratifyingly large sum was raised for the Royal National Institute of Blind People following a charity auction of a to-die-for Glastonbury Festival swag-bag. Thank you, Freshfields Bruckhaus Deringer LLP, for your superb hospitality -- and a huge thank-you to all the speakers and to Mr Justice Arnold for entering into the spirit of the event by demonstrating a lightness of touch while never letting the debate and subsequent Q&A session overboil.

Feeling dyspeptic? Last week the District Court of The Hague gave judgment in Stada and Sandoz v AstraZeneca, a big pharma patent case concerning esomeprazole The patent at issue, EP 1 020 461, relates to the S-enantiomer of the well-known blockbuster gastric acid secretion inhibitor omeprazole, in a specific purity grade (> 99.8 enantiomeric excess). Stada and Sandoz sought to invalidate the patent for lack of inventive step, insufficiency and inadmissible added matter -- but the District Court thought otherwise. The interesting thing here is that the patent was revoked last month in opposition proceedings before the EPO, but the revocation was not brought to the attention of the District Court since the case was already closed and awaiting judgment. The IPKat's friends Marleen H.J. van den Horst and Jaap Bremer (BarentsKrans NV), who represented Stada in the Dutch proceedings, have kindly gone to the effort of rendering the District Court's decision into English and you can read it here.

Never mind photography -- primates
have been churning out literary
works ever since the invention
of the typewriter ...

Around the weblogs.   There's a stunning not-to-be-missed post on the 1709 Blog here by the positively regal Aurelia J. Schultz on copyright in photos taken by monkeys. The A to Z tour of official African IP websites, which Kingsley Egbuonu is undertaking for Afro-IP, has now reached its fourth port of call, Botswana.  PatLit's latest PCC Page touches upon such intimate matters as what to call the judge -- and what to wear when appearing in the Patents County Court.  The MARQUES Class 46 blog announces the publication of the latest revision of Providers of Warning Information -- which gives further details of how national and international IP Offices advise users of scams and unsolicited requests for payments.  The Kat salutes IP Draughts on notching up its 100th email subscriber and hopes it won't be long before this must-read transaction-driven blog doubles this tally.