29 April 2011
"Some approved of the Working Group’s proposal. Some thought that there should be a higher limit. Some thought that there should be a limit not on the damages or profits claimed, but on the value of the claim as a whole e.g. by reference to the annual sales, or projected sales, of products protected by the IP right (i.e. total sales made by the right owner, its licensee and/or the alleged infringer). Some thought that there should no limit."
28 April 2011
"In any proceedings mentioned in subsection (1), the court may disallow, or (as the case may be) order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with rules of court."
(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative; or(b) which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay."
"CPR 45.42 provides that unless a party has behaved unreasonably the maximum costs that can be awarded against him are:(a) £50,000 on the final determination of a claim in relation to liability; and(b) £25,000 on an inquiry as to damages or an account of profits."
09 April 2011
"Further the learned judge failed to deal adequately or at all with [Merck]'s case that the step by step project proposed by [Teva] as the obvious way forward would not arrive at a formulation with the features called for by the independently valid claims, even if it was not abandoned outright. In particular the learned judge addressed the possibility that the skilled person would abandon the project but he failed to consider the impact on the later steps in [Teva]'s step by step approach of the outcomes of the tests [Teva] contended would be performed at earlier steps. [Teva] needed to establish that the outcome of its step by step approach would be a formulation formulated at a pH range of 5.5-6.0 required by proposed amended claim 18 and (or) with the amounts of the two drugs such that the concentrations fell within the scope of the claims, and in particular claim 6. [Teva] failed to do so. Although the judge expressed the conclusion that the use of a formulation within claim 6 does not involve an inventive step his reasoning does not adequately support that conclusion. The correct conclusion is that the claims are not obvious on this basis."
"There is no additional time requirement in that case either. If by reference to the relevant state of the art the invention is obvious then it matters not that it may take time to perform the necessary routine tests. It is a matter of simple comparison between the relevant art and the claimed invention."
05 April 2011
“Design touches every aspect of human creativity. It shapes the things we appreciate from traditional crafts to consumer electronics; from buildings and bicycles to fashion and furniture. Design has been called “intelligence made visible”.
Design is where form meets function. It determines the look and feel of the products we use each day – from everyday household items to the latest tablet computers. Design marries the practical with the pleasing. It brings style to innovation.”
In everyday language design can refer either to an object’s appearance or to the way it works. Thus, we speak of “fashion design” and “engine design”. The former is ornamental and the latter functional.
Most countries protect ornamental design by one means or another. For example, EU member states are required by art 3 (1) of Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs to protect by registrations designs that are new and have individual character. In the USA, patents known as “design patents” are available for new, original and ornamental designs for articles of manufacture under 35 USC 171. In the UK we protect new designs having individual character by registration in compliance with the Directive, but we also protect functional designs by an intellectual property right that is almost unique to this country known as unregistered design right. Superimposed on our national design law is EU or Community design law which provides a system of design registration for new designs having individual character known as registered Community designs and automatic short term protection against copying for designs that could be registered known as unregistered Community design. Design right protects the shape or configuration of articles or parts of articles including components and even features that cannot be discerned by the human eye. However, surface decoration is specifically excluded from design right protections. Thus, such things as the design of fabrics and wall coverings can be protected by artistic copyright, design registration or possibly even as unregistered Community designs.
Confused? “You should be” as they used to say on Soap. I shall try to demystify design law in a quick presentation consisting of me, Peter Groves and A N. Other. Together we will present a whistle-stop road show around Yorkshire to celebrate World Intellectual Property Day on 26 April. We shall visit Leeds, Bradford and Sheffield at 10:00, 14:00 and 18:00 respectively. As Peter has just published his excellent Dictionary of Intellectual Property Law there may even be the odd Fat Rascal or samosa washed down by Black Sheep or sweet lassi. Gradely!
If you want to learn more about this intellectual feast contact me on 0800 862 0055 or fill in my contact form. If you are interested in intellectual property in Yorkshire generally you can also follow my IP Yorkshire blog.
02 April 2011
"Pallet container for the transporting and storing of liquids, having a flat pallet, an exchangeable inner container made of plastic material with an upper, closable filler opening and a lower emptying device and also, surrounding the inner container, one outer sleeve which consists of vertical and horizontal lattice bars made of metal which support the plastic inner container filled with liquid ..."
"It suffices to say that [the intermediary], when it fits [the claimant's] bottles into [the defendant's] cages, is making [the patented product] which fall within the Patent and are doing so without the licence of [the claimant]. That they themselves on their own website say they are "re-manufacturing" says it all."That seems to suggest that there is no general approach and that each case is to be determined according to its own circumstances. The tribunal looks at what the claim says and then considers whether the defendant's product falls into it. It is not too far removed from the old rule that one should construe the patent as though the defendant had never been born.