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JIPLP Express: A rapid-read overview of the main items in this issue |
Contributing to the wrong: the indirect infringement of patents The law of indirect patent infringement is evolving quickly across the various jurisdictions in Europe. The member states of the European Union have similar provisions in their law relating to thing matter by reason of the Community Patent Convention despite the fact it never came into effect. This article provides a review of the jurisprudence relating to indirect infringement in Europe, with particular emphasis on the law of the United Kingdom. It seeks to provide guidance on the law will develop by comparing the approaches of the Courts in the various Member States. The law in this area is little explored and there have been a number of recent decisions which are little discussed elsewhere. |
Patent protection for dosage regimes under the European Patent Convention 2000 The question of whether treatment or dosage regimes are patentable under Articles 53(c) and 54(5) of the European Patent Convention 2000 has been clarified by the Enlarged Board of Appeal of the European Patent Office. |
Long-awaited Turkish Biosafety Law finally enacted in March 2010 The keenly-awaited Biosafety Law (Law No. 5977), enacted following the approval of a Bill in the Turkish Parliament on 18 March 2010, appears as it stands to have serious consequences upon innovation in the country while entailing unpropitious implications for holders of intellectual property rights (IPRs) over genetically modified organisms (GMOs) and products derived from them. |
ECJ decides in French Google AdWord referrals: more seek than find? The ECJ has handed down its eagerly-awaited judgment in three joined cases brought against Google in France in relation to the issue of keyword (AdWord) advertising, holding that an internet reference service provider which offers trade marks as keywords for sponsored links is not liable for trade mark infringement, setting out guidelines as to when a keyword advertiser's behaviour may amount to trade mark infringement. |
Who invents life: intelligent designers, blind watchmakers, or genetic engineers? Judgments since the 1980s have confirmed that living things may be claimed in patent applications, albeit with some divergence between jurisdictions. To a large extent, such extension of the scope of patents has followed analogically from the patenting of hormones and antibiotics. The question arises of whether the analogies deployed and resultant subject matter expansionism can be justified given the current state of our knowledge of life and of highly complex living processes. Fundamental difficulties exist in the patenting of whole life forms. These difficulties are made evident in scientific, philosophical, and theological discussion concerning the appearance of design in life and the special qualities all life forms share that differentiate them from non-living chemical compositions. Such discussion indicates that life is inherently more complex that than any human artefact, and continues not to be well understood. Discussion also points to the autonomy and extraordinary self-creativity of life forms which again suggests that inventorship claims to whole organisms may not be scientifically justifiable at present. It may be time to rethink the metaphors and analogies used to justify the patenting of whole organisms. Living things are not just chemicals or machines, and are certainly not human artefacts. |
Appealing a victory and the persistence of goodwill A recent judgment gave guidance on two issues: the extent to which a successful party could appeal a decision in which it had received a favourable outcome but had not succeeded on commercially important aspects of its case which had wider industry implications; and the status of goodwill when the product which generates the goodwill is no longer produced. |
Online service provider's liability for the activities of its users The High Court for England and Wales has found a Usenet indexing and search service liable (both primarily and secondarily) for infringements of copyright committed by its users which have used its service to help them download copyright-protected films and other media. |
Cipriani v Cipriani: when use of one's own name is not enough The Court of Appeal for England and Wales has confirmed that the so-called own-name defence to trade mark infringement may apply to the trading name of a company, although it did not assist the defendant on the facts of this case. |
Purpose-bound protection for DNA sequences: in through the back door? In the first litigation case regarding the interpretation of the Biopatent Directive 98/44/EC, the European Court of Justice is asked to clarify whether a DNA sequence is entitled to patent protection as a compound as such, or only under circumstances where the DNA performs its function. Advocate General Mengozzi issued an opinion concluding, ‘"that the protection for a patent relating to a DNA sequence is limited to the situations in which the genetic information is currently performing the functions described in the patent’", thereby arguing for both a purpose-bound and time-limited scope of protection. In his view, the Directive constitutes an exhaustive body of rules and precludes national legislation from conferring wider protection. This interpretation finds no base in the legislative history of the Directive, which was intended to extent but not to limit protection for biotech inventions. A ruling following the opinion would have severe consequences for EU biotechnology patent holder. Not only isolated DNA will become unprotected, a patentee would also lose rights against the importation of harvested goods produced outside the EU without his authorization. |
US trade mark owners must police their own marks on eBay eBay is found not liable for infringing Tiffany's trade mark through the sale of both authentic and counterfeit items on its website, although eBay may be subject to liability for false advertising. |
Accounting constitutes a very specific form of language. Unlike literature or political language, the language of accounting is highly standardized, mathematical in nature and seeks to uniformly and systematically describe events while avoiding expressions of individual creativity or explicit political positions. It is a highly formalized vernacular that documents past performance rather than expectations of the future, preferring the past tense over the future tense. It is a utilitarian language, only employed to achieve specific purposes and document certain contexts. Accounting does not just simply map business, or objectively mirror an existing, pre-defined business context; rather it creates that business context by offering a complex system of representation. In this sense accounting is a social, cultural and historical artifact rather than a natural or technical phenomenon and it can therefore be viewed as the decisive instrument to create and maintain imagined business communities. On the balance sheet IP experiences a specific form of authorization. Life is brought to IP by providing a system of stable semiotic orders and discursive selectivity that serve a specific reproduction of complex socio-economic orders. IP is represented in the discourse of accounting by ‘intangibles’, an imprecise term associated with the increasingly observed ‘gap between the market and book value’. For a discourse analyst the phrase ‘closing the gap between the market and the book value’ in and by itself reveals that current accounting systems are to a large extent determined by a tangible assets’ based perspective and offer little scope to document how IP relates to business performance. Accounting may thus be seen as a gate keeper of the status quo that poses significant challenges for IP rich companies, which are confronted with the challenge to either communicate around the lingua franca of accounting or accept that under current accounting statements they cannot adequately document how IP relates to their business performance. |
Infringement of copyright in musical works: a riff Down Under The Federal Court of Australia has held that Men at Work's iconic Australian ‘pop’ song ‘Down Under’ infringes the copyright in the children's song ‘Kookaburra sits in the old gum tree’. |
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