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Showing posts from August, 2005

Software Patents: More Bloodcurdling Stuff

An interesting article for connoisseurs of this sort of thing from Ton Sanders in vnunet.com.

The article is headed "Patent threat looms over dynamic web pages". It discusses patent infringement claims that a company called EpicRealm has launched in the USA against 13 companies. The patents are for systems for managing dynamic web page generation. The defendants appear to be end-users rather than software houses and they include dating agencies, a dietary supplement manufacturer and a shopping mall. The interesting parts of the article from a foreign lawyer's perspective are interviews with the lawyers for both sides and the links to the specifications of the patents alleged to have been infringed.

All good stuff. One can see why Florian Mueller gets agitated about software patents here.

Related Posts:
30 Aug 2005 "Software Patents: Call for EP Resolution"
29 Aug 2005 "Applying for Patents"
28 Aug 2005 "UK Patents Acts 1977 - 2004"
25 Aug 2005 &…

Always consider the UDRP first

This is the second time today that I have written this post. The first version was deleted by the browser when I tried to run the spell check. I don't know why I bother with the spell check anyway because it tries to transform standard English into US dialect. You know the sort of thing, "center" for "centre" and "labor" for "labour".

I am prompted to write this post because my usual super-duper computer loaded with the very latest operating system and applications (including antivirus software updated as recently as 26 Aug 2005) has caught a bit of a bug. Hoping that this is the computer equivalent of a summer cold rather than avian flu, I have taken my ailing electronic pet back to the chap whose talented lads put together my impressive kit in the first place.

My supplier is now a mate but he first came to me as a client under the public access rules. I don't normally talk about my cases - partly because that sort of thing is restricted …

HIP, HIP Hooray from Huddersfield

HIP stands for Huddersfield Intellectual Property Forum. HIP was set up a year ago at a meeting of representatives of local solicitors, patent agents, Business Link West Yorkshire, the local chamber of commerce and university. Its object is to raise awareness of the need to protect and exploit investment in brands, design, technology and the arts.

Huddersfield has a lot to be proud of - The Huddersfield Choral Society, the annual Contemporary Music Festival, The Textile Centre of Excellence,The Media Centre and a University with a rapidly growing reputation, particularly in business, engineering and design. We also have living among us Peter Bissell, the author of "A Better Mousetrap" and "the Business of Invention", both excellent primers for inventors. They have been commended by Business Link, the Chartered institute of Patent Agents and many others. Consequently, the town and its industries have a lot of intellectual property to protect.

HIP's activities this…

Software Patents: Call for EP Resolution

The Channel Register has drawn my attention to an interesting article by Mr Florian Mueller in euObserver.com entitled "Parliament should pass resolution on software patents". The gist of the article is a call to the European Parliament to pass a "short and simple resolution that calls on the administrative council and the president of the European Patent Office to take the appropriate measures so that the existing law be complied with......."

Whatever one's views on the desirability of software and business method patents, such a resolution would be impertinent.As Jacob J said in R v Comptroller (ex parte Lenzing AG) [1996] EWHC Admin 390 (BAILII) at paragraph [16], the EPO has nothing whatsoever to with the EC:
"The EPC did not form and does not form part of the legal framework of the then European Economic Community (now the European Union). Countries outside the Community can be and are signatories. Switzerland, for instance, was a founder member of the …

Hail to Hills of Westwood

Further proof the clever chaps at ContractsProf Blog that I plugged a few minutes ago know what they are talking about, one of the first feeds on my RSS subscription from them is the US law school rankings with my alma mater right at the top of the public universities league. Second is UC Berkeley and fourth is UC San Diego. Californian law schools also did well in the private league. Stanford is number two and USC (which Bruins unkindly and probably unfairly call the "University of Second Choice") is number 7. :-)

Applying for Patents

I have just uploaded on the IP/IT-Update website a short article on applying for patents. This is not a "how to" guide. I am not a patent agent and always advise my clients to go to someone who is. Instead, it is an introduction to some of the many useful articles and publications from the Patent Office, European Patent Office, WIPO, British Library and other places. It also mentions the PATLIB libraries and the excellent work of Alison and Chris at the Manchester Central Library and Ged and Stef in Leeds in operating their clinics and inventors' groups. Finally, I have mentioned the work HIP is doing in Huddersfield and Bradford and Ideas21 in Liverpool and Manchester as well as Blackburn.

Related Posts in August 2005:
28 Aug 2005 "UK Patents Acts 1977 - 2004
"25 Aug 2005 "Patents - Excluded Matter: NMR Holdings Pty Ltd.'s No 2 Application
22 Aug 2005 "Basic Patents - IPR Helpdesk Briefing Paper on European Patents

Lawindexpro

I have just received an email from my friend, neighbour and occasional client, David Swarbrick. David is now a consultant of Oldham law firm Wrigley Claydon but for many years he practised on his own account in Brighouse (a small town between Huddersfield and Bradford) in the biggest, and many would say the best, county of England. While on his own he developed the legendary Just Mooting website which in the early days attracted more hits than any except the Library of Congress. It certainly beat the Legal Services Commission site. David's latest initiative is lawindexpro which catalogues, digests and alerts to the latest free transcripts of decisions of the English superior courts of record.

David's email shows that he is now using the Summer vacation profitably by focussing on some of the older cases. One of those cases is Investors Compensation Scheme Ltd -v- West Bromwich Building Society Times, 24 June 1997; [1997] UKHL 28; [1998] 1 All ER 98; [1998] 1 WLR 896 which is ou…

Precedents by the Barrow Load

One of the links from the ContractsProf Blog leads to Onecle. This is a remarkable collection of contracts that have actually been signed. It covers everything from asset purchase agreements to warrant agreements and it is classified by contract types, industries and companies. The companies include such big names as Abbott Laboratories, Bank of America, Bell, Freddie Mac, General Motors, Halliburton, Harvard University and Microsoft. I don't know how he does it but they are there.

Most of the agreements concern American companies and are governed by the law of one state or other of the USA. But there are one or two foreign companies such as our own, dear BT, where the agreement is governed by our law. In particular, there are several Chinese companies in the list.

There is also a rather good blog - Contracts Blog - to which I have just signed up for RSS feeds.

“Browse-Wrap Agreement” Decision

I am also indebted to Geoffrey Gussis for his introducing me to Contracts Prof Law Blog which contains a summary by Meredith Miller of Hubbert v. Dell Corp., 2005 Ill. App. LEXIS 808 (12 Aug, 2005).

That appears to be a decision of an appellate court in Illinois enforcing an arbitration clause on an e-commerce site. The point at issue appears to have been that the buyer did not appreciate that they were consenting to that clause when they clicked the "I accept" box on the supplier's site. Their lordships do not appear to have had much sympathy with that submission. The author quotes the following passage from their judgment:

"The blue hyperlink entitled "Terms and Conditions of Sale" appeared on numerous Web pages the plaintiffs completed in the ordering process. The blue hyperlinks for the "Terms and Conditions of Sale" also appeared on the defendant's marketing Web pages, copies of which the plaintiffs attached to their complaint. The blue h…

Venture Capitalists

I've just received a post through my RSS aggregator from Geoffrey Gussis if InHouse blog on Venture Capitalists' Term Sheet Terminology. It links to a series of commenttaries by Brad Field on various common provisions. Mr Field is managing director of Mobius Venture Capital, a US$1,250 million fund managed by what appears to be a very impressive team.

UK Patents Acts 1977 to 2000

I have just uploaded an introduction to the UK Patents Acts together with links to the Patent Office's unofficial consolidations of the Act and Rules and all the other sources of online information which I use frequently. Sorry that there is not much up today. As I said yesterday, it is a bank holiday weekend and I should prefer to watch the cricket on telly.

Thanks Ilanah, Jeremy, Lee and Delia

The nice people at IPKat said some really kind things about my blog and website and wished me luck last week. Thanks Ilanah and Jeremy.

I should have acknowledged them sooner but I only found out about their remarks yesterday through an email from Lee Curtis of Pinsent Masons. Thanks Lee. I did not expect to be noticed so soon.

I tried to leave a message on IPKat and even joined the IPKat group to do it. However, some officious IPBot said that I didn't have sufficient permission for that. Ilanah and Jeremy will therefore have to make do with this post and yesterday's email, at least for the time being.

I have been a fan of Jeremy and Ilanah's blog ever since it started. I have also read a lot of other publications by one or other of them over the years.

Another person I should like to thank is Delia Venables for her mention. I think we all owe a lot to her. She has been prominent in computer law for many years. The first time I came across her was as one of the expert witnes…

Blog from La Reunion

Not all blogs on intellectual property and information technology law come from advanced industrial countries. I have just come across one from La Reunion, a small island in the Indian Ocean administered by France, run by Sulliman Omarjee. The title of Sulliman's blog is "Propriete Intellectuelle et Nouvelles Technologies".

The notes in the side bar explain that it is devoted to raising his compatriots' awareness of the fascinating subject of information and communications technology law. That may be a mistranslation because the adjective that Sulliman actually uses to describe the subject is "passionnate". My lips started to curl into a smile as I was reminded of Sergeant Sullivan's celebrated put down to a rather pompous judge about an abstruse point of law that in the drinking places of a particularly remote part of Ireland from where his client hailed they talked of nothing else.

However, frivolity aside, this blog is good.To give some idea of the qu…

IP 101

It is a convention in the USA to list the introductory course to any subject in its timetable as "101". Thus, "French 101" covers the rudiments of French grammar, like gender and the auxiliary verbs, and basic pronunciation.

As I practise in a small town 300 kilometres from London that has never had a barristers' chambers let alone a patent set before, much of my work is awareness raising. Through initiatives like HIP (Huddersfield Intellectual Property Forum) I remind my neighbours in the Huddersfield Media Centre and the Huddersfield Business Generator of the need to protect their brands, designs, technologies and creative works. A lot of people ask me such questions as "just how do you copyright a program" or "how do you apply for a patent, trade mark or registered design". For them, I have produced "IP 101" or "Acquiring IP" on my .law.pro site. It supplements "Applying for a Trade Mark" on my IP/IT Update s…

Designs: New Rules and New Case Law

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Update The Regs are now published (The Community Design Regulations 2005 SI 2005 No 2339).
See Post of 1 Sept 2005 with links to OPSI and analysis by IPKat.

The "What's New" page of the Designs Index of the Patent Office website rarely has much to report. This week it has two items of interest to practitioners.

The first are two recent decisions, one by Mr Barford under s.246 of the Copyright Designs and Patents Act 1988 relating to unregistered design rights, the other by Mr McGillivray on an application for invalidation of a registered design. The second item is a summary of the Community Designs Regulations 2005 which will come into force on 1 Oct 2005.

For the benefit of readers outside the UK, it is perhaps worth mentioning that there are at least 5 (and if one counts semiconductor chip protection separately 6) ways of protecting designs in this country:-
(1) designs of products that are new and have individual character may be registered as registered designs for the U…

Thoughts inspired by Mr Nipper's Nipper

I commend a short article by Mr Stephen Nipper of "Rethink (IP)" entitled "Changes are coming ......". Before commenting further on his post, I should explain that in the argot of the part of England where I grew up "nipper" means child.

The article starts with a delightful anecdote of a request by one of Mr Nipper's children to skip the commercials in a live television broadcast. The post also displays a charming photo of the child. I have a lot of sympathy for the little boy. My recollection of American telly from my days as a graduate student in Los Angeles is that commercials can go on for quite a long time. I was told that the reason for a lot of irritating breaks at American football and basketball matches was that the broadcasters needed time to run their advertisements. I think that is why I have never been able to take to American sports even though my university won the student basketball championship several years in a row and was second on…

Welcome to NZLII

The Universities of Otago and Wellington in New Zealand (Aotearoa) appear to have joined forces with the AUSTLII (Australasian Legal Information Institute) to form a NZLII (New Zealand Legal Information Institute) to supplement the LII in the USA, BAILII in the UK and Ireland, CANLII in Canada and a growing number of other national and regional legal resources around the globe.

The NZLII is already pretty good. Collections include case law from the NZ Court of Appeal, Supreme Court, the Copyright Tribunal, Competition Commission and Privacy Commissioner, Acts of the NZ Parliament (so far only 3) and plenty of law reviews, law commission reports, links and many other goodies.

The resource that actually drew me to the site was in fact a report of the Trustpower reference to the Copyright Tribunal in respect of a newspaper cuttings licensing scheme run by the Print Media Copyright Agency along the lines of a similar copyright licensing scheme in Britain (see Trustpower Ltd Public Relation…

IP/IT Update - What's New

I have transposed the amendment, infringement and utility pages as well as my case notes on Amersham, Asahi Medicaland Buchanan v Alba Diagnostics from the old IP/IT Update website.

Don't forget that this blog is the best place to pick up RSS feeds and updates.

Patents - Excluded Matter: NMR Holdings No. 2 Pty Ltd.'s application

The first case on s.1 (2) exclusions since Peter Prescott QC's decision in CFPH's application [2005] EWHC 1589 and Pumfrey J's in Halliburton Energy Services, Inc. v Smith International (North Sea) Ltd[2005] EWHC 1623 (Pat) (21 July 2005) has now come on before a hearing officer in the Patent Office.

The applications were brought by NMR Holdings No 2 Pty Limited. Two applications for a method of designing coils for magnetic resonance imaging apparatus were rejected by the examiner "on the grounds that they related to mathematical methods and/or methods of performing mental acts". Amendments introducing a step of producing the coil as the product of a design process and methods of manufacturing the coils failed to change her mind.

Before proceeding further, it is worth explaining that the countries that are party to the European Patent Convention exclude the following from patentability:
(a) a discovery, scientific theory or mathematical method;
(b) a literary, drama…

Hallelujah! More Entertainment from across the Atlantic

I am also indebted to Mr Schwimmer's blog for the link to today's decision of the Fourth Circuit in Lamparello v Falwell and others allowing an appeal by the claimant, Christopher Lamparello against the district court judge's dismissal of his claim and judgment on the counterclaim to the defendants. The importance to this case to Americans is that it explores the interface between the right of freedom of expression guaranteed by the first amendment of their federal constitution. It is no doubt why the ACLU (American Civil Liberties Union), the Berkman Centre for Internet and Society of Harvard University and others intervened as amici.

We have had the same sort of issues here though they have been fought on different battle grounds. Since we also refer to "district" and "circuit judges", it is worth mentioning that a "district judge" and "circuit judge" in the USA are rather more grand than their namesakes here. A district judge is a…

Trade Marks: They do things differently in America

US trade marks lawyer, Martin Schwimmer, has an interesting post on the Trademark Blog today. It concerns a complaint by a well known parcel delivery company against a young man who made a suite of furniture out of the complainant packaging materials. The young man appears to have been so proud of his work that he uploaded photos of it onto a website. Probably, that is why he raised a hornets' nest. The first 5 letters of his domain name are the corporate name of the complainant. It is important to add that he does not advertise or offer his furniture for sale on his site.

Mr Schwimmer's post links to recent correspondence between the complainant in-house legal advisor and the Executive Director of the Stanford Law School Centre for the Internet and Society.
A letter from a member of the complainant legal department argues that: his employer's registered trade marks and copyrights had been infringed and that it had been induced to supply its packaging by a representation th…

More Improbable Patents

The British Library has assembled links to several "wacky patents" sites.

I have also linked to the BL Patents and IP Collection in the UK Resources page on the right side bar.

Pedrick Links

The late Arthur Pedrick was an examiner at the UK Patent Office. When he retired he took to composing some of the most entertaining specifications in the UK Patent Office.

Here are the first lot of Pedrick links. There will be plenty of others.

BBC "A patently absurd invention?" 25 Oct 2002
Tim Jackson "Patently Absurd!" Pedrick Page 17 Dec 2000
Mary Bellis "Arthur Paul Pedrick"

IP/IT Update - What's New

The article on "inventive step" (aka obviousness or rather the antithesis thereof) that had previously appeared on the old nipclaw (Kingsgate Chambers IP & Technology Group) website has now been transposed to the IP/IT-Update site.

This blog is the best place for RSS feeds for the NIPC websites.

Competition Law: Chemicals Industry Probe

According to the BBC the EC Commission has begun to investigate the conduct of several chemicals companies in the methacrylate-monomers market. These chemicals are used to make transparent plastics and coatings used in cars and consumer goods. As of now, nothing connected with the investigation had been reported on the Competition Directorate-General's website but NIPC will keep you posted,

Link:
DG Competition: http://europa.eu.int/comm/competition/index_en.html

US and European Patents Info on RSS

Updates from both the EPO (European Patent Office) and the USPTO (United States Patents and Trademarks Office) are now accessible through RSS Technology. For those who are not already familiar with the technology, RSS and XML (identifiable by little orange boxes on websites) summarize recent additions to a website and insert a link to the item in question. RSS is used on most blogs and many news websites including the BBC, The Independent, Guardian and New York Times as well as the WIPO (World intellectual Property Organization) and IPR-Helpdesk.

To take advantage of RSS and XML technology you will need a news aggregator. They are available from various sites. Many are free and most of those that are not cost only a few US dollars. My personal favourite is "Attensa for Outlook" which directs news items into one's Outlook e-mail program. A beta version of the program is available free of charge from http://www.attensa.com/.

The USPTO feed is available not from the Office it…

Search Orders: Supervising Solicitors Wanted!

Search orders (aka "Anton Piller" orders or even "Laddie orders" in some parts of the world) are best described as civil search orders. They are a type of interim injunction granted by a chancery judge requiring the respondent to admit the persons named in the order into his or her premises and allow them to search for documentary or other material evidence. The purpose of the order is to catch "bad people" off their guard before they have had a chance to hide or destroy evidence.

It goes without saying that such a draconian remedy can easily be abused. Since the early 1990s the courts have imposed stringent safeguards on the grant and execution of such orders. One of those safeguards is to require the order to be executed by an experienced solicitor who is not connected with any of the parties called "a supervising solicitor". As search orders are usually required at very short notice, it is not always easy to find an experienced litigator near …

Stoned! The Difference between Copyright and Rights in Performances

According to the BBC website, the German Christian Democrats led by Angela Merkel has adopted the Rolling Stones’ classic “Angie” as a theme tune at party election rallies. The problem is that the Stones’ agents, LD Communications, complain that they had not been consulted. The BBC article reports that a Christian Democrat spokesman had obtained a licence from GEMA ("Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte") the German copyright collecting society, roughly equivalent to our PRS-MCPS alliance. That’s fine as far as it goes but the Stones are performers and as such enjoy rights in their performances. That right is quite different to, and distinct from, copyright. Rights in performances are licensed by another collecting society, the GVL ("Gesellschaft zur Verwertung von Leistungsschutzrechten mbH"). If there has been an oversight somewhere along the line the German Tories (or are they nowadays closer to New Labour) would not…

Basic Patents

IPR-Helpdesk, a joint venture of the University of Alicante in Spain and the Jagiellonian University in Krakow, Poland, has published a new, short briefing paper on European Patents. The paper addresses patentability, excluded matter, benefits of patent protection and revocation. This is just one of a number of interesting publications of the Helpdesk. Others address patent insurance and the costs of obtaining and maintaining patent protection.

Porridge for Patent Infringement?

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For readers who may not be familiar with British colloquialisms "porridge" means prison as well as a hot breakfast cereal emanating from Scotland. "Porridge" was the title of a popular sit-com about prison life which appeared on BBC television just over 30 years ago.
The reason for the title is that the Patent Office has invited comments on 18 August 2005 on a proposalby the European Commission for a directive on criminal measures aimed at ensuring the enforcement of intellectual property rights and a framework decision to strengthen the criminal law framework to combat intellectual property offences. Art 3 of the Proposal would require member states to
"ensure that all intentional infringements of an intellectual property right on a ommercial cale, and attempting, aiding or abetting and inciting such infringements, are treated as criminal offences." It would appear that the proposed requirement would apply not just to bootlegging, counterfeiting and piracy…