Journal of Intellectual Property Law & Practice - current issue

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Louis Vuitton does not laugh at its bags parody

Thu, 07/07/2016 - 01:27

In a summary judgment the US District Court for the Southern District of New York dismissed—based on the parody exception—an action for trade mark dilution and infringement as well as copyright infringement that Louis Vuitton (LV) had brought against My Other Bag (MOB).

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Bossa Nova and the interpretation of performers right of integrity in Brazil

Thu, 07/07/2016 - 01:27

Moral rights for performers are a disquieting subject in Brazil, having been recently ignited by the decision in João Gilberto v EMI Music Ltda., first taken in 2012 by the Superior Court of Justice and confirmed in December 2015. The decision sets a subjective interpretation for the right of integrity for performers in the country.

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The exclusion of personal data disclosure in file-sharing cases in Hungary

Thu, 07/07/2016 - 01:27

The Municipal Court of Appeals of Hungary has confirmed that the domestic laws on copyright, electronic commerce and electronic communications shall be interpreted in accordance with EU substantive law and Court of Justice of the European Union (CJEU) case law that allows for but does not oblige member states to legislate on the disclosure of personal data of end-users (identified solely by their IP-addresses) in copyright cases.

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Dont threat the small stuff--Reform coming for unjustified threats

Thu, 07/07/2016 - 01:27

Unjustified threats provisions are soon to change significantly, for the benefit of all involved. The UK Government has published its response to the Law Commission’s draft bill on unjustified threats, including a recommendation that the bill be put before Parliament under an accelerated procedure.

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Interpretation of a numerical range in a patent claim: the understanding of a skilled person

Thu, 07/07/2016 - 01:27

Patents often specify a range of quantities as part of the invention they claim. For example, the physical dimension of an object or the concentration of a chemical compound may be claimed in the patent as a range of numerical values. When the patent is challenged or enforced, the interpretation of the boundaries of a claimed range, and the precision associated to them, often becomes a key issue.

The Technical Board of Appeal of the European Patent Office, as well as the competent national courts, is often charged with the task of clarifying ambiguities in the precision of a particular range boundary.

This article formulates three rules of thumb that help determine the precision of a range boundary from the perspective of a skilled person. First, the skilled person approaches the boundary as an instruction, rather than a literally prescriptive indication, and interprets it in light of the patent description and of the common general knowledge. Second, in cases where different processes or mechanisms characterize the invention at each of the boundaries of the claimed range, the skilled person is likely to adopt an asymmetric approach. Third, whenever a convention for rounding numbers is used to identify the scope of a range boundary, the chosen rounding rule should not produce significant relative deviations.

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Detangling copyright, transformation and ideas (in photographs)

Thu, 07/07/2016 - 01:27

Molly Stech is a New York attorney and has worked with the World Intellectual Property Organization, the US Copyright Office, the George Washington University Law School, and Volunteer Lawyers for the Arts of New York.

Photographs are as copyrightable as any other medium of expression. Their unique nature (insofar as they can capture reality and do not always readily reveal the creativity that a photographer infuses into his work) engenders some judicial uncertainty insofar as their protection.

Where courts are finding transformation as a fair use, rather than derivation as an infringement, there is a potential for the exception (transformation of an underlying work) to swallow the rule (artists retain the exclusive right of authorizing adaptations, arrangements and other alterations of their works).

This article seeks to examine and unwrap a short set of photography cases from different jurisdictions; and to study their respective parameters of copyrightability and copyright infringement. The decisions reveal dissimilar rationales and highlight the ambiguous legal framework in which photographers currently work.

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Copyright and the value of attention

Thu, 07/07/2016 - 01:27

Ruslan Budnik is a lead researcher and UNESCO Chair on copyright and other intellectual property rights in the National Research University, Higher School of Economics, and Candidate of law sciences.

This article is dedicated to an analysis of novel approaches in the use of digitized artwork and research of monetization opportunities.

It also proposes a new role for intermediaries in the market for creative products.

Discussing the informational nature of artistic works.

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All the World's a Stage: The European right to be forgotten revisited from a US perspective

Thu, 07/07/2016 - 01:27

Hugh J. McCarthy is a trainee solicitor with Arthur Cox in Dublin.

The Court of Justice (CJEU) ruling in Gonzalez v Google Spain has placed the ‘right to be forgotten’ at the centre of the global privacy debate. However, the decision leaves many questions unresolved, in particular the territorial scope of the ‘right to be forgotten’.

The Gonzalez decision thereby generates tension with other jurisdictions due to the potential for the extra-territorial application of EU law norms beyond its borders. This tension is especially palpable in jurisdictions that are less than receptive to the principles underlying the ‘right to be forgotten’. In this respect, the Gonzalez decision is a discrete symbol of the disparity between the judicial approaches to privacy, data protection, reputation and freedom of expression under the respective American and EU constitutional systems. Although there are several fields of common ground between the EU and US at the intersection of these fundamental rights, it cannot be said that the ‘right to be forgotten’ is one of them. It is apparent that the body of First Amendment jurisprudence stands as an insurmountable obstacle to the implementation of an EU-style ‘right to be forgotten’ in the US.

With the imminent codification of the ‘right to be forgotten’ in the EU's General Data Protection Regulation, it appears that the two jurisdictions will end up ‘shadow-boxing on different plains’ when it comes to the ‘right to be forgotten’. As a consequence of these differences and the resulting regulatory disparity, informational asymmetries will probably emerge between the US and EU—and potentially other jurisdictions—as the ‘right to be forgotten’ is implemented elsewhere.

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Supplementary protection certificates: still a grey area?

Thu, 07/07/2016 - 01:27

Supplementary Protection Certificates (SPCs) were introduced in 1992, and have since been considered a very valuable tool for the pharmaceutical industry, allowing for market prolongation and compensating for the effective patent protection time lost in the process of market authorization.

Over the past five years, numerous Court of Justice of the European Union (CJEU) rulings have attempted to interpret the provisions of EU Regulation 1901/2009 and provide clarity to patent holders as well as generics manufacturers as to the protection requirements and the scope of protection awarded. This article analyses the implication of major CJEU cases concerning the interpretation of Articles 3(a), 3(d) and 1(b) of the Regulation.

The article also discusses the interrelation between the EU SPC Regulation, on the one hand, and the Market Authorization Regulation and the Market Authorization Directive, on the other, and compares the EU system with that provided by the USA. An analysis of recent case law reveals that now, some 25 years after the entry into force of the Regulation, the system is still obscure. A serious concern also arises as to whether the system as it stands today is simply inappropriate to the protection of modern pharmaceuticals and whether this is also one of the reasons for the growing volume of case law in the field.

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Notorious no more? Section 100 Patents Act 1977

Thu, 07/07/2016 - 01:27

‘If sections in the Patents Act could ever be described as notorious then this may be the one’ (Birss J). In this decision Birss J gave permission to serve out of the jurisdiction relying in part on Section 100 of the Patents Act 1977.

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Patents Court finds medacs methotrexate formulation patent invalid

Thu, 07/07/2016 - 01:27

The Patents Court has found that medac’s formulation patent for a new dosage form of methotrexate is invalid for lack of inventive step.

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A greater role for geographical indications in the registration of Community trade marks

Thu, 07/07/2016 - 01:27

The CJEU has departed from traditional practice and afforded a much greater role for the law of Member States on geographical indications to play in the registration of Community trade marks.

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