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Showing posts from October, 2008

Practice: How will the Economic Downturn affect IP Practice

Regardless of whether the steps agreed in Paris today will work (see "EU chiefs confront markets crisis" BBC website 12 Oct 2008), markets will eventually stabilize. However, that is unlikely to be the end of the economic crisis as there is every indication of a downturn more prolonged and more severe than any that most IP practitioners have experienced in our working lives.    The purpose of IP is to protect investment in the branding, design, technology and creative works that give one supplier and edge over his or her competitors. As it can safely be assumed that overall demand for products and services generally is likely to slacken the question that I and no doubt many other practitioners have been considering is whether that will create more work for IP practitioners or less.
Views of Other Practitioners Some IP practitioners seem quite bullish. According to Crain's, Ian Morris of KuitSteinart Levy, said: "the rest of the economy may be feeling nervous about a s…

Interim Injunctions: Les Laboratoires Servier v Apotex Inc

When an applicant other than the Crown seeks an interim injunction he or she has to promise the interim applications judge to compensate the injuncted party for any loss or damage that that party may suffer as a result of the injunction. In Les Laboratoires Servier and another v Apotex Inc and others [2008] EWHC 2347 Mr Justice Norris had to decide how much compensation should be paid to a generic drugs manufacturer who had been injuncted from infringing what turned out to have been an invalid patent for nearly a year   The principles that the judge discerned from previous decisions were as follows:"(a) The undertaking is to be enforced according to its terms. In the instant case (as in many others) it is that Servier will comply with any order the court may make "if the court…finds that this Order has caused loss to the defendants." The question for me is therefore: what loss did the making of the Order and its continuation until discharge cause to Apotex?

(b) The appro…

IP Professionals: Law Society Initiative

I have just seen an interesting post about Professional Bodies by Barbara Cookson on the IP Solo Practitioners' blog which deserves as much publicity as it can get. The legal services industry is in for major changes once Part V of the Legal Services Act 2007 comes into force. 
Although most of my colleagues have yet to see it, specialist IP counsel have far more in common with excellent one person or small firms of patent agents like Filemot or indeed law firms like Pemberton Reid and James Love Legal or indeed Toni Tease in America than we do with the factory sets in Manchester or Liverpool or indeed they do with the mega law firms and rapidly expanding patent agents firms. That's why I set up IP Yorkshirewhich Barbara understood and kindly blogged in An Alternative Business Model based on Quality.

Software Patents: Here we go again

I have not yet had a chance properly to analyse the Court of Appeal's decision in Symbian Ltd v Comptroller General of Patents [2008] EWCA Civ 1066 (8 Oc 2008) but it looks to me as though the Court has rowed back a bit since Macrossan[2007] RPC 7, [2006] Info TLR 215, [2007] Bus LR 634, [2007] 1 All ER 225, [2006] EWCA Civ 1371 and that English jurisprudence is now closer to that of the EPO Technical Board of Appeal.
Referring to the Board's decision in Duns Licensing Associates LP, T 0154/04 - 3.5.01 which discussed Macrossan the CA (which included Lord Neuberger as well as Lord Justice Jacob who also delivered the CA's judgment in Macrossan) observed that at para [11] "at least as a matter of broad principle, it seems to us that the approaches in the two cases and indeed in the great majority of cases in this jurisdiction and in the EPO, are, on a fair analysis, capable of reconciliation." The basis of that reconciliation appears to have been as follows: "T…

Trade Marks and Passing Off: Tubzee Ltd. v Saffron Foods Ltd.

Because  it was tried by John Behrens in Leeds I have blogged Tubzee Ltd v Saffron Foods Ltd. [2008] EWHC B15 in my IP Yorkshire blog. This was a trade mark infirngement and passing off case between two Halifax kulfi makers.  There is not much law in it but it has a couple of points of interest as I say in my post.

Domain Names: suttonlibdems.org.uk

There is a tantalizingly brief report of a decision by Nominet panellist Bob Elliott in a domain name dispute brought by the Sutton Borough Liberal Democrats against the Carshalton and Wallington Constituency Labour Party (seeSutton Borough Liberal Democrats v Carshalton & Wallington Constituency Labour Party [2008] DRS 6026 (26 September 2008) .

The poor old respondents don't seem to have a website of their own, poor things, and even if they did how much traffic would it get nowadays.    So just as their Chancellor took his lead from Vince Cable when looking for a solution to Northern Rock the Carshalton and Wallington CLP registered suttonlibdems.org.uk as a domain name.   Very understandable since they came a poor third in the last general election:
Turnout: 43061 (64%)40.3% Liberal Democrat: 17357 (−4.7%) 37.8% Conservative: 16289 (+4%) 17.2% Labour: 7396 (−1.2%)
.... and their electoral prospects have not exactly soared since then despite the heroic efforts of Mrs Gordon Brown in…

Copyright: Featured Artists' Coalition

I know this is not a particularly fashionable point of view but unless we want our arts to be sponsored by the state as in the former Soviet Union the folk who produce and present them to the public need to be paid. Maybe not as much as they used to be before the digital age and probably not as much as they would like, but certainly enough to make it worth their while getting up in the morning.   Those folk include not just the recording companies who have made a lot of fuss and have made themselves unpopular by suing file sharers but artists, particularly those who are trying to establish themselves.   
Now I am normally suspicious of pressure groups. As Adam Smith put it  “People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.” But because of the dramatic changes to the economics of the entertainment industry brought about by digitization - namely the facility…

Trade Marks: Christmas Hick-Up

In K-Swiss v OHIM [2008] EUECJ C-144/07 (2 October 2008) the ECJ dismissed an appeal against the CFI's refusal to entertain an application to set aside a Board of Appeal decision on the ground that the proceedings had been filed out of time.

Art 63 (5) of the CTM regulation actions against decisions of the Boards of Appeal must be brought within 2 months of notification. Rule 61 (2) of the implementing regulation requires notifications to be made by the following means:

"(a) by post in accordance with Rule 62;
(b) by hand delivery in accordance with Rule 63;
(c) by deposit in a post box at [OHIM] in accordance with Rule 64;
(d) by telecopier and other technical means in accordance with Rule 65;
(e) by public notification in accordance with Rule 66.'

Notification of the Board's decision was made by DHL courier rather than by post but there was evidence that the decision had been communicated to the applicant by 28 Oct 2005. Proceedings were not instituted until 15 Jan…

IP Yorkshire: Glossary of IP Terms

You may be interested in a glossary of IP terms and expressions that I have published on my IP Yorkshire blog.
That blog, in case, you have not seen it, is primarily for my local public access and non-specialist solicitor clients who are more interested in inventors' club meetings and Business Link Yorkshire vouchers than in high failuting matters like the the doctrine of equivalents or litigaiton between pharmas and mobiel phone makers.