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Tasty - Levola Hengelo BV v Smilde Foods BV

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Jane Lambert

Court of Justice of the European Union ( K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.-C. Bonichot, A. Arabadjiev, M. Vilaras (Rapporteur), E. Regan, T. von Danwitz and C. Toader, Presidents of Chamber, A. Rosas, E. Juhász, M. Ilešič, M. Safjan, C.G. Fernlund, C. Vajda and S. Rodin, Judges) C-310/17, Levola Hengelo BV v Smilde Foods BV ECLI:EU:C:2018:899, [2018] EUECJ C-310/17, EU:C:2018:899 (13 Nov 2018)


This is one of the most remarkable cases that I have ever read.   It is important because it greatly increases the range of creations in which copyright can subsist.   I first thought it was a bit of a joke because that is how it was presented in the press (see  Food taste 'not protected by copyright' rules EU court13 Nov 2018 BBC website).  Now I see its potential for all the creative industries.

The owner of the intellectual property rights in a spreadable dip called Heks'nkass sued Smilde Foods for infringing its copyright in the taste of…

Patents - Coloplast AS v MacGregor Healthcare Ltd

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Jane Lambert

Intellectual Property Enterprise Court (HH Judge Hacon)  Coloplast AS v MacGregor Healthcare Ltd [2018] EWHC 2797 (IPEC) (24 Oct 2018)

This was a claim by the Danish company, Coloplast AS, against MacGregor Healthcare Ltd for damages and other relief for the alleged infringement of European Patent (UK) No. 1 145 729. The defendant, MacGregor, counterclaimed for the patent to be declared invalid on grounds of anticipation, obviousness and insufficiency. The action and counterclaim came before His Honour Judge Hacon on 10 and 11 July 2018.  The judge dismissed the claim.  He found that the patent was invalid for want of an inventive step and insufficiency but added at para [159] of his judgment that had the patent been valid he would have held it to have been infringed.

The Invention
The invention for which the patent was granted is a ready-to-use urinary catheter assembly. Catheters are inserted into a patient's urethra to empty the bladder. To avoid discomfort catheter…

Patents and Self-Driving Vehicles

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Jane Lambert

Yesterday I attended the eCommerce Show North at EventCity Manchester.  One of the exhibitors was Tesla Inc. Two of the company's cars were on display and I took a peek inside one of them.  The car had a steering wheel and many of the instruments that would be expected on any other car but I could find only one pedal and there was a large screen displaying the locations of the nearest charging points.

At first, I was surprised to find a luxury car manufacturer among the developers, fintech, marketing and social media consultancies, private equity and business angel investors but then I realized that logistics are essential to electronic commerce. Goods purchased over the internet have to be delivered. The optimum means of delivery are autonomous electric vehicles. Those are the things that Tesla develops and manufacturers.  Not just motor cars but electric lorries fitted with enhanced autopilot systems.

The eCommerce Show North coincided with the publication by the Eu…

The Court of Appeal considers FRAND: Unwired Planet v Huawei

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Jane Lambert

Court of Appeal (Lord Kitchin, Lord Justice Floyd and Lady Justice Asplin) Unwired Planet International Ltd  and Another v Huawei Technologies Co Ltd and Another [2018] EWCA Civ 2344 (23 Oct 2018)

FRAND stands for "fair, reasonable and non-discriminatory".   It is an acronym to describe the terms upon which licences should be granted for standard essential patents ("SEPs").   SEPs are patents for inventions that are crucial for compliance with a technical standard.   I attempted an introduction to FRAND terms and SEPs in FRANDon 8 Oct 2017. Lord Kitchin gave a much better one in the first five paragraphs of his judgment in Unwired Planet International Ltd and Another v Huawei Technologies Co Ltd and Another [2018] EWCA Civ 2344 (23 Oct 2018).

Unwired Planet
In FRAND I discussed Mr Justice Birss's decision in Unwired Planet International Ltd v Huawei Technologies Co Ltd and another [2017] EWHC 1304 (Pat) (7 June 2017) which was the first British cas…

IP after Brexit: The Government's Guidance

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Jane Lambert

Ever since the referendum and indeed before it I have tried to anticipate the legal protection for brands, designs, technology and creativity if and when the United Kingdom leaves the European Union (see Were we to go - what would Brexit mean for IP?26 Feb 2016, What Sort of IP Framework do we need after Brexit and what are we likely to get?3 July 2016  and IP Planning for Brexit 7 Dec 2018).  Much will depend on the terms upon which we leave the EU and our relationship after departure.

Since the 23 Aug 2018 the government has published guidance on How to prepare if the UK leaves the EU with no dealThat guidance covers everything from Applying for EU Funded Programmes to Workplace Rights.  I commented about it in And if there is no deal ..................24 Aug 2018 NIPC Brexit,  Topics include patents, copyrights, trade marks and designs, geographical indications and plant breeders' rights.

I have discussed these topics and the government's guidance in:
Patents …

Trade Marks - Argos Ltd v Argos Systems Inc.

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Jane Lambert

Court of Appeal (Lord Kitchin, Lord Justice Floyd and Sir Colin Rimer) Argos Ltd. v Argos Systems Inc.[2018] EWCA Civ 2211 (9 Oct 208)

"Can a US corporation selling construction software only in the Americas under the name ARGOS be sued for infringement of a registered trade mark by a UK based consumer goods retailer who trades mainly in the UK and Ireland under the same name?" asked Lord Justice Floyd at paragraph [1] of the Court of Appeal's judgment in Argos Ltd v Argos Systems Inc [2018] EWCA Civ 2211 (09 October 2018).  His lordship added: "That the question even arises for serious consideration is a consequence of the developments in the European law of trade marks and of the revolution in commerce and advertising brought about by the internet."

The Parties
The "UK based consumer goods retailer" was Argos Ltd. which was referred to in the litigation by the initials "AUL".  That company was the claimant and appellant in these…

"Now we are Six" - The Small Claims Track's Sixth Anniversary

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Jane Lambert

Just over 6 years ago the Patents County Court Small Claims Track was launched (see my article Soon there will be a Remedy if Someone steals your Idea19 Sept 2012 NIPC Inventors Club). I was very enthusiastic about the new court and wrote a lot about it as you can see from the bibliography in Small IP Claims31 Jan 2017 NIPC News). 

The reason for my enthusiasm was that it seemed to make IP litigation affordable for thousands of start-ups and other small businesses that felt that the law provided no effective protection for their investments in branding,design,technology and creativity because enforcement of their rights was too expensive and too uncertain.  Before the Civil Procedure Rules came into force in 1999 claims often began with an application for interim injunctive relief.  Most settled when an interim injunction was either granted or refused (if not before) . If the unsuccessful party paid anything at all to the successful party by way of damages or costs the a…