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Showing posts from May, 2013

Correspondence with my MP on Clause 13 of the Intellectual Property Bill

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Here is the email that I sent to my MP at 22:23 last night:

"Dear Jason, You will shortly be required to consider the Intellectual Property Bill which was introduced into the House of Lords by Lord Younger, Parliamentary Under Secretary of State for Intellectual Property on 10 May 2013. I have analysed the Bill in detail and written a detailed commentary entitled "The Intellectual Property Bill" 28 May 2013 which I hope you may find useful.
The Bill contains a lot of useful provisions and is generally to be welcomed but it contains one provision, clause 13, which would create a new offence of infringing a registered design punishable by 10 years imprisonment, an unlimited fine or both.  During the consultation on the proposed provisions of the Bill, Sir Robin Jacob a former Lord Justice of the Court of Appeal and now a leading academic lawyer who is regarded by most as the greatest authority on IP law of the age, objected strenuously to the proposal in "Submission…

The Intellectual Property Bill

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In Digital Opportunity, A Review of Intellectual Property and GrowthProfessor Ian Hargreaves made 10 recommendations for IP policy which I discussed at length in "IP Policy: Does Hargreaves say Anything New?" 24 June 2011. Some of those recommendations required primary legislation. Others did not.  As I said in my article, Hargreaves was not the first review of IP policy in recent years and most of the previous ones had been left to gather dust.   I suspected the same would happen to Hargreaves.

Implementation of Hargreaves

To my surprise and delight, Hargreaves's recommendations were accepted broadly by HM Government ("HMG") (see "The Government Response to the Hargreaves Review of Intellectual Property and Growth"Aug 2011).  Not only that but HMG actually started to consult on the recommendations and even to implement some of those that do not require primary legislation.  The progress of such implementation is being monitored by the Intellectual Pr…

Software Patents: HTC Europe Co Ltd v Apple Inc

In HTC Europe Co Ltd v Apple Inc [2013] EWCA Civ 451 (3 May 2013), the Court of Appeal (Lord Justices Richards, Lewison and Kitchin) ventured again into what Lord Justice Lewison described at paragraph [140] of the Court's judgment as "the minefield of the exclusion from patentability of computer programs 'as such'".

The Appeal
This was an appeal from the judgment of Mr Justice Floyd (as he then was) in HTC Europe Co Ltd v Apple Inc [2012] EWHC 1789 (Pat) (4 July 2012). The judge found that two of the claims of one of Apple's patents were invalid because they related to computer programs as such and one of those claims was also invalid for obviousness. He also found that all the claims of another patent were invalid either for want of novelty or obviousness.  The first of those patents, European patent number 2,098.948, related to computer devices with touch sensitive screens that are capable of responding to more than one touch at a time. The second, European…

Success Fees and ATE Premiums in the Patents County Court: Henderson v All Around the World Recordings Ltd

As I mentioned in "Intellectual Property Litigation - the Funding Options" 10 April 2013, it was possible until the 31 March 2013 for a litigant to enter an agreement with his or her solicitors and counsel known as a conditional fee agreement ("CFA") whereby the lawyers would look to the other side for payment not only of their assessed costs but also of an uplift known as a success fee and the premium for insurance against their own and the other side's costs in case of failure known as after-the-event ("ATE") insurance if they won the case or obtained a satisfactory settlement. As I also mentioned in that article, it is still possible to enter a CFA but any success fee and ATE insurance premium must now be paid by the successful party - usually out of any damages or accountable profits he or she may receive.

On 1 Oct 2010 CPR Parts 63 and 45 and the corresponding Practice Directions were amended for proceedings before the Patents County Court ("…