Journal of Intellectual Property Law & Practice - current issue

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Norwich Pharmacal orders: business interests and 'exemplary' conduct can be relevant

Fri, 10/17/2014 - 10:55

The Intellectual Property Enterprise Court (IPEC) refused to grant a Norwich Pharmacal order having found that conduct and balance of irreparable harm weigh in favour of the defendant. The Enterprise Judge, Judge Hacon, also construed the negotiation correspondence between the parties and their appearance before the court as giving rise to a binding agreement.

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Meltwater: liability for internet browsing

Fri, 10/17/2014 - 10:55

The Court of Justice of the European Union's (CJEU) decision in Meltwater has been heralded as providing clarification that browsing copyright materials on the internet is always lawful. In fact, along with the CJEU's earlier decision in Case C-466/12 Svensson, it raises a concern about the impact of infringing content, and the potential liability of those who browse, link to or frame that content.

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Try bombed--rugby league injunction application fails

Fri, 10/17/2014 - 10:55

Sports Data, the former statistics supplier to the National Rugby League (the NRL), sought and failed to secure an interlocutory injunction against what it saw as the misuse of copyright in its database and the confidential information in it by Prozone, the NRL's new statistics supplier.

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US Ninth Circuit confirms validity of Copyright Office's simplified registration procedure for collective works

Fri, 10/17/2014 - 10:55

The US Court of Appeals for the Ninth Circuit has confirmed that a copyright owner need not list the name of each individual photographer or the title of each photograph to register copyright validly in each individual photograph that forms part of a collective work.

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Karen Millen v Dunnes Stores: CJEU clarifies 'individual character' requirement for Community designs

Fri, 10/17/2014 - 10:55

The Court of Justice of the European Union (CJEU) has confirmed that, when assessing the individual character of a Community design, it is not legitimate to do so by reference to a combination of features taken from a number of earlier designs. The assessment must instead be made by reference to specific earlier designs taken individually. The CJEU has also confirmed that the holder of a Community design does not need to prove that its design has individual character but must merely indicate what constitutes the individual character of that design.

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Google v Spain: is there now a 'right to be forgotten'?

Fri, 10/17/2014 - 10:55

A surprise decision by the CJEU in May this year means that a search engine can be legally required to remove from its search results information which is lawfully published online.

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Program logic in the field of intellectual property: protectability under Austrian law

Fri, 10/17/2014 - 10:55

The Supreme Patent and TradeMark Board (SPTB) clarified the status of program logic—a category of invention under s 1(2) of the Utility Model Act—under Austrian law by ruling that it can be protected only if it contains a technical aspect.

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The Bolar exemption and the supply of patented active pharmaceutical ingredients to generic drug producers: an attempt to interpret Article 10(6) of Directive 2004/27

Fri, 10/17/2014 - 10:55

Under the EU ‘Bolar’ exemption studies and trials necessary to gain regulatory approval for generic medicinal products do not constitute patent infringement.

In this article the author examines the coverage of the ‘Bolar’-rule in the broader context of the Community law in which it is embedded. He also addresses the compliance of this Community rule with the TRIPS Agreement.

More specifically the author discusses the issue of third parties supply of patented active ingredients to generic drug companies for regulatory authorization and makes suggestions how it sould be solved under the ‘Bolar’-rule.

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Expanding the realm of the senses: non-traditional trade marks in Japan

Fri, 10/17/2014 - 10:55

On March 11, 2014, Japan promulgated significant legislative changes to its trademark law and practice which are expected to come into force on April 1, 2015. Trademark holders that employ exciting, dynamic and distinctive indications to distinguish their valuable goods and services in the Japanese marketplace can file and obtain trademark registration protection over their ‘nontraditional’ trademarks, like distinctive motions, sounds and colors.

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In? Out? What's it all about? Patent opt-out and withdrawal in the UPC

Fri, 10/17/2014 - 10:55

In the months following the publication of the 16th draft Rules of Procedure, it is inevitable that gaps and points of dispute on the functioning of the Unified Patent Court and Unitary Patent will be identified. However, one issue that is now largely clear, is that of opt-out. This is important because whether patentees wish to allow their European patents to automatically become subject to the jurisdiction of the UPC, or whether they wish to opt them out, is an issue that needs to be addressed before the UPC opens its doors on the first day of its operation. But what does opt-out mean, and what are the factors that will influence this decision? There are three aspects to understanding the system: what opt-out does; the procedure for opting-out; and, the strategic implications of opting-out. This article provides an overview of these three aspects to explain what we know, and its relevance to decisions on this important issue.

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What exactly is a trade secret under the proposed directive?

Fri, 10/17/2014 - 10:55

Trade secrets were always involved in commerce (the Silk Route being a prime example) but have only recently been directly regulated at an international law level (section VII of the TRIPS agreement). The national laws addressing it are often scattered and variegated. Believing this creates hurdles in the internal market, on the 28th November 2013 the European Commission presented a proposal for a directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure.

The notion of trade secrets contained therein is a carbon copy of article 39 TRIPS, itself based on the US Uniform Trade Secret Act.

This article exploits such definition and the questions left unanswered. After providing a background to the current directive and analysing some national definitions and related terminology, the article focusses on four requirements: (1) information, (2) that is secret, (3) valuable due to its secrecy, and (4) subject to reasonable steps to keep its secrecy. The possibility of additional requirements is scrutinized and rejected.

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Conflicts between complex signs and designs: some observations from the European watch industry's perspective

Fri, 10/17/2014 - 10:55

Watches are complex product configurations but seldom subject of a conflict between trademark and design rights. A recent decision of the Frankfurt Appeal Court involving both complex signs and designs provides valuable guidance in judging validity and infringement issues under European design and trademark law.

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Higher Regional Court (OLG) Frankfurt: text dictated by Jesus enjoys copyright protection

Fri, 10/17/2014 - 10:55

The accrual of copyright protection depends on the actual creation process. The mental condition of the person creating the work is of no relevance. The claim that a work brought forth by a human creator was created solely by metaphysical influences does not conflict with attribution of the work to its human creator or with the grant of copyright protection.

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Towards a New IP World Order?

Fri, 10/17/2014 - 10:55
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Lack of provisional protection for patents applications in Argentina and interpretation of experimental use

Fri, 10/17/2014 - 10:55

An Argentine court dismisses a patent infringement claim based on lack of provisional protection and allows exception to patent rights for experimental use.

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US Supreme Court rewrites standard for claim indefiniteness analysis

Fri, 10/17/2014 - 10:55

On 2 June 2014, the US Supreme Court unanimously overturned the long-standing jurisprudence of the US Court of Appeals for the Federal Circuit regarding the standard for evaluating a patent claim's definiteness under 35 USC §112, ¶2, and established a new ‘reasonable certainty’ standard that patent claims must satisfy.

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Federal Circuit rules that cloned animals are not patentable

Fri, 10/17/2014 - 10:55

The Federal Circuit has held that a cloned animal, namely Dolly the Sheep, is not patent-eligible under s 101 of the US Patents Act.

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