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Journal of Intellectual Property Law & Practice - current issue
Journal of Intellectual Property Law & Practice - RSS feed of current issue
Updated: 5 min 41 sec ago
A court held that there was no property right in emails.
Bard v Gore: to injunct, or not to injunct, what is the question? Is it right to reward an infringer for successfully exploiting a patent?
Robert Lundie-Smith is a barrister and solicitor and practises as a Solicitor Advocate in EIP Legal, London. Gary Moss is a solicitor and the head of EIP Legal, London.
The application of the United States Supreme Court ruling in eBay v MercExhange, as exemplified in the recent decision of the Court of Appeals for the Federal Circuit (CAFC) in Bard Peripheral Vascular Inc v W L Gore & Associates Inc, has far reaching implications for patentees looking to enforce their rights in the US against infringers who have managed to make a successful business out of their infringing acts.
This article analyses and compares the position of patentees in the UK and the US seeking to obtain a final injunction against an infringer.
It will be seen that, post eBay, the position of a patentee before the US courts is far weaker than that of patentees before UK courts.
One's name has been regarded as one's most characteristic possession, which differentiates a person from all other persons and enables him to be known. People are differentiated on the basis of their surnames and goods are identified by their distinctive trade marks. Trade marks which, by association, connote quality are an asset, but trade marks are also a liability because the owner stakes his reputation for better or for worse on his goods.
The right to use one's own name as a trade name, trade mark or service is not absolute. There has been litigation for trade mark infringement resulting from the use of personal name or surname trade marks as the trade mark significance of a surname may come to dominate the surname significance over time through long and exclusive use by the trade mark owner. The basic problem with registering surnames is that they are generally objectionable, per se, on the ground that they are not distinctive and in order to be distinctive it is clear that a mark must be different from other marks used upon or in connection with the same or similar goods.
In this article, I will not only describe the Indian position on the use of surnames as trade marks but also briefly describe the position in United States and Europe.
Richard Bradstreet is a lecturer in commercial law at the University of Cape Town.
With the advancement of technology and modern innovations, the ambit of patentable subject matter as intellectual property has become increasingly difficult to define. Furthermore, striking a balance between protecting an inventor's intellectual property, and maintaining the integrity of the applicable patent system becomes particularly difficult in relation to inventions involving intangible processes or methods.
The United States’ jurisprudence recognizes the patentability of computer software, and on the same theoretical basis, for a short while, also recognized business methods as patentable subject matter. Although many jurisdictions do offer patent protection in respect of computer software, not many have stretched the definition of patentable subject matter much further than this; yet the United States did at one stage find a jurisprudential basis for patenting methods of doing business.
This article analyses the American experience in relation to business method patents, and attempts to shed light on the way in which business methods gained patent protection in the first place, and on the reasons for such protection having been subsequently revoked. It is argued that a system that recognizes business method patents will become unworkable.
Robert Buchan and Gill Grassie are partners of Brodies LLP. Both are Law Society of Scotland accredited IP specialists and head up Scotland's largest and most experienced IP dispute resolution team.
Whilst UK substantive IP law applies UK wide, Scotland is a separate legal jurisdiction with separate courts, court rules and procedures and judges. As such it is an alternative forum for IP litigation within the UK.
Substantive revisals to the Rules of the Court of Session in Edinburgh for dealing with Intellectual Property Disputes have recently come into force. The new regime should lead to more efficient, swifter and economical resolution of IP disputes in Scotland.
In cases where Scotland is the optimal exclusive or most appropriate forum, IP owners and their representatives should be aware of the new court rules and their implications.
Pawarit Lertdhamtewe is a lecturer in the Faculty of Law at Chiang Mai University, Thailand.
Plant variety protection has long been a sensitive issue and plant varieties have historically been excluded from being protected in many jurisdictions in Asia. While some countries in the region introduced various kinds of plant protection laws during the twentieth century, many generally felt that it was not appropriate to grant IP protection in this field.
Plant variety protection gained importance through membership to the WTO, which was something the International Convention for the Protection of New Varieties of plants had been unable to achieve. For this reason, more countries in Asia, as developing countries, have implemented some kind of legal protection for plant breeding achievements in accordance with TRIPS.
This article aims to discuss the emergence of the IP rights law on plant variety protection and its development in the Asian region and to analyse its prospects in the next decade.
'Congratulations, you have won!' New standards apply to announcements of wins: A discussion of Purely Creative and others
In Purely Creative and Others1 the Court of Justice of the European Union (CJEU) clarified a number of prerequisites for the per se ban under Item 31 in Annex I to the Directive on Unfair Commercial Practices (‘the Directive’), and hence under Item 17 in Annex to s 3(3) of the German Act Against Unfair Competition (UWG). The most significant result is that consumers may not be burdened with any costs whatsoever when inquiring about the prize won, and that the trader has to provide all necessary information about the prize and how it is to be claimed in a clear and comprehensible manner.
An obvious 'Comity of Errors': Court admonishes motives of Applications Judge, but agrees with the result
The Federal Court of Appeal upheld a prohibition order sought by Allergan preventing the Minister of Health from issuing a Notice of Compliance to Apotex but admonished the Applications Judge for granting the prohibition order simply to ‘further his desire to clarify the jurisprudence’ (Apotex, para 6).
The Metropolitan Court and Appeal Court have rejected a request for preliminary injunction in a pharmaceutical patent case solely on the grounds of protecting the interests of patients taking the infringing medicine.
US jury properly relied upon second considerations of non-obviousness to overcome prima facie obviousness
The US Court of Appeals for the Federal Circuit in addressing the role of secondary considerations of non-obviousness and the weight to be accorded to them found no error in the jury's reliance on overwhelming evidence of secondary considerations of non-obviousness to conclude that a prima facie case of obviousness was overcome, thus saving the patent claim from invalidation.
Patent protection for diagnostic methods in the United States: further forays into patent-eligibility
The United States Court of Appeals for the Federal Circuit has determined whether a claim for a method of diagnosis for Down's syndrome was patentable under section 101 of the Patents Act.
The General Court upheld the likelihood of confusion between BIMBO DOUGHNUTS and the earlier Spanish mark DOGHNUTS, thus allowing a Spanish pastry maker to prevent its competitor from using the word ‘doughnut’ for its products, on the grounds that a large part of the Spanish public does not speak English and will perceive the similar element as a fantasy word.
This article first reviews the General Court's judgment and then summarises the decision of the CJEU. It also touches on a reference to the CJEU in Case C-49/13 MF7 on questions pertaining to good faith. The General Court's decision is interesting in that whilst it primarily concerns a bad faith claim, it also addresses the jurisdiction of the General Court to alter contested decisions and admissibility of evidence on appeal to the General Court.