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Journal of Intellectual Property Law & Practice - current issue
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Updated: 38 min 29 sec ago
In 2013 the Intellectual Property Appellate Board (IPAB) issued several decisions, including the one discussed in this note, whereby it sought to raise the standard of non-obviousness of an invention in India by ruling that the legal fictitious person who serves as a reference for determining or evaluating whether an invention involves an inventive step and thus is non-obvious is Ms P Sita (a person skilled in the art, who has more than average knowledge of the state of the art and who also has some common sense). Such person is not at all ordinary and is not the same as Mr PHOSITA (the person having ordinary skill in the art) as referenced by US patent law and who is ordinary by definition.
The Court of Appeal of England and Wales has simplified the test relating to privity of interest, enabling litigants to know the circumstances in which a party will be prevented from re-litigating a matter.
In the US Court of Appeals for the Federal Circuit, a divided panel applied a recent US Supreme Court decision on the requisite intent for a finding of induced patent infringement to allow for good-faith belief of invalidity to negate that intent.
The case is an example of a divide between the following of common trends and the infringement of IP rights in the fashion domain. The Italian court of first instance, the Tribunale di Milano, dismissed all the claims of trade mark infringement and unfair competition made by Gucci against Guess, in addition to invalidating three marks held by the Gucci fashion house
The Delhi High Court rejected the application of the ‘hot news’ doctrine in India.
The Regulations amend the Copyright, Designs and Patents Act 1988 (CDPA) by extending the copyright term for sound recordings from 50 to 70 years; extending performers' rights in related performances in the same way; and, for co-written songs, harmonizing the copyright terms for the music and lyrics, so that both run from the death of the last surviving author.
In three infringement cases, the Dutch Supreme Court (DSC) delivered judgments with significant implications for the (assumed) European harmonization of the copyright protection criteria for works of applied arts. Further, in the Hauck case, the DSC referred questions to the Court of Justice of the European Union (CJEU) about the interpretation of the absolute grounds for the refusal (or invalidity) of shape marks, in particular the ‘nature of the goods’ and the ‘substantial value’ grounds in Article 3(1)(e)(i) and (iii) of Directive 2008/95 on the approximation of trade mark law, corresponding to Article 7(1)(e)(i) and (iii) of Council Regulation 207/2009 on the Community trade mark (CTMR). These two topics are the focus of this case note.
German courts approve effectiveness of facilitated service under Article 10 of the Hague Service Convention.
The Oxford English Dictionary defines Parody as ‘an imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect’. It further explains Pastiche as ‘an artistic work in a style that imitates that of another work, artist, or period’.
In a 2008 Consultation Paper on copyright exceptions, the UK government recognised that whilst these terms may have different connotations and meanings, "[t]he whole point of these types of works is that they should ‘conjure up’ the original work upon which they are based".
This conclusion is supported by the legal treatment of parody in the Middle Ages, when parody was generally regarded as a species of necromancy or sorcery, the punishment for which was death by burning at the stake. Few parodists were actually burned, however, because most of them were drowned during their Ordeal by Water, which (by analogy with trials for witchcraft) was employed to determine their innocence or guilt.
Arnaud Folliard-Monguiral works in International Cooperation and Legal Affairs, OHIM, Alicante and Mikas Miniotas is an Estonian Patent Attorney with AAA Legal Services, Tallinn.
After the United Kingdom and Germany, the Netherlands was the next venue for the Apple v Samsung confrontation. On 31 May 2013, the Hoge Raad (the Supreme Court of the Netherlands) dismissed an appeal against the decision to reject Apple's claim regarding the infringement of its registered Community design by Samsung's tablet Galaxy Tab 10.1.
The Dutch Supreme Court considered that the validity of a Community design should be assessed against the prior art taken collectively rather than individually. This issue is pending before the Court of Justice in the context of a reference for a preliminary ruling (Case C-345/13, Karen Millen Fashions Ltd v Dunnes Stores Ltd et al).
The Hoge Raad also held that the distance which separates a design from the existing design corpus determines the scope of protection that the design will be entitled to claim vis-à-vis any later design. A design, the main features of which have already been disclosed separately in a number of designs within a dense design corpus, will thus have a limited individual character; consequently, it will only have a restricted scope of protection.
Pradip Royhan is in the Bangladesh Civil Service, currently on study leave pursuing doctoral studies at Macquarie Law School, Sydney.
Developing countries have been motivated by concern that higher levels of intellectual property protection under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) would involve a substantial commitment of insufficient government resources, producing a significant net outflow of royalties to foreign rights holders and increasing domestic prices. Now those countries are more concerned about strong patent protection as they believe that this would be harmful for their emerging pharmaceutical industries and for access to affordable medicines.
Bangladesh has been taken as a case study as its pharmaceutical industry is now meeting around 97 per cent of total domestic demand, but it must still ensure TRIPS compliance within the extended period ending on 1 January 2016 if it is not to face negative consequences regarding patent protection and access to affordable medicine. Its compliance does not depend only upon the consequential negotiations but mostly upon Bangladesh domestic regulations and the role of the regulatory agencies responsible for enacting adequate regulations.
Based on a qualitative methodology, this article examines the patentability exceptions regarding environmental requirements under TRIPS that might have depressing consequences on Bangladesh pharmaceutical products' market access as a least developed country (LDC). It also explores the market access challenges of Bangladesh's pharmaceutical sectors as a whole by examining the domestic regulations of Bangladesh as well as specific international rules. This research argues for reform of domestic regulations and an accelerated negotiation for further reform in the international rules.
Someshwar Banerjee is a registered patent agent with the Indian Patent Office and is associated with Lakshmikumaran and Sridharan Attorneys, New Delhi, India. Someshwar is primarily involved in drafting and prosecuting patent applications related to computer-implemented inventions, electronic circuits and telecommunications.
Today, India is one of the most attractive consumer markets for multi national companies (MNCs). These MNCs seek patent protection for their products for which India is a potential market. Obtaining patents in India requires applicants to comply with several procedural formalities. Non-compliance may have serious consequences, including revocation. However, few procedural formalities are as lethal as s 8 of the Indian Patent Act 1970 (IPA).
Section 8 provides that, if patent applications for the same or a similar invention are filed in other jurisdictions corresponding to a patent application filed in India, the information relating to the filing and prosecution of such patent applications must be furnished to the Indian Patent Office (IPO). Section 8 imposes a duty on applicants who have filed a patent application in India voluntarily to update the IPO with information relating to the filing of their corresponding patent applications and to provide any specific information relating to them, as and when requested by the IPO.
This article discusses s 8, its legislative intent and its interpretation by Indian courts and tribunals, suggesting practice points on compliance with s 8.
The article describes cases of copying of images of world famous paintings of painters deceased long ago, the reproduction of which is protected as a trade mark. What is the massage of such a "sign–painting"? Will a user understand such a "sign–painting" as a trade mark while he is at the place of sale? Different expertise practices at different patent authorities are mentioned. Would the International Council of Museums (ICOM), as a leading organization in the field of cultural heritage, be able to initiate the establishing of methods of control over similar activities?
Alexander Tsoutsanis litigates, teaches and writes on intellectual property law. He is an attorney at DLA Piper and a senior lecturer at the Institute for Information Law of the University of Amsterdam.
This article is about how privacy and piracy lock horns in everyday practice. It outlines three challenges right holders and ISPs face every day, when piracy tries to hide behind privacy: uncertainty, costs and delay.
Apart from only balancing the right of privacy against the right of (intellectual) property, the author also introduces a third element: the right to effective remedy.
The article concludes that the challenge is not in the ‘if’ but in the ‘when’ and ‘how’ ISPs can be obliged to disclose personal data. This requires new research, with a more practice-oriented approach, focusing on two elements: (1) a robust uniform decision making model, allowing for a ‘fair balance between all fundamental rights’, of all stake holders involved, (‘when’); (2) such model needs to benefit from (cost-)effective procedures, to the benefit of all (‘how’).