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Showing posts from July, 2013

Bilateral Investment Treaties: Claiming Compensation from Foreign Governments under Bilateral Investment Treaties for failing to provide adequate IP Protection

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In Novopharm Ltd v. Eli Lilly & Co2010 FC 915 Mr. Justice Barnes of the Federal Court of Canada declared that Canadian patent no. 2,209,735 for the second medical use of the drug atomoxetine to treat attention deficit hyperactivity disorder in adults was invalid for inutility. His judgment was upheld by the Federal Court of Appeal in Eli Lilly & Co. v. Teva Canada Ltd 2011 FCA 220. Eli Lilly & Co. applied for leave to appeal to the Canadian Supreme Court but that was refused on 8 Dec 2012.

Similarly, in Eli Lilly Canada Inc. and Others v Novopharm Ltd 2011 FC 1288 Mr. Justice O'Reilly threw out Eli Lilly's claim against Novopharm for infringement of its Canadian patent no. 2,041,113 for olanzapine on the ground of invalidity. Again, Eli Lilly appealed but the Federal Court of Appeal upheld the court below in Eli Lilly Canada Inc v Novopharm Limited,2012 FCA 232. Again, Eli Lilly sought leave to appeal to the Supreme Court and, again, it was refused.

End of story on…

IP Bar Association Garden Party

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I have been a fan of Professor Tanya Aplin for some time, originally because of her transformation of Gurry on Breach of Confidence and more recently because of her part in the Submission to the UK IPO on the issue of criminal sanctions for the deliberate copying of designs by Sir Robin Jacob and the Professors of IP law at the Universities of Oxford, Cambridge, Glasgow, Edinburgh and Bournemouth. Like Francis Gurry, the Director-General of the WIPO, she is an Australian which is almost a qualification in itself as the courts of that island continent are a laboratory for the development of the common law positively fizzing with bright ideas some good and others not so good.

Professor Aplin was guest of honour at the Intellectual Property Bar Association garden party on Monday which I attended with Robert Griffiths QC, the IPBA's latest recruit, and our pupil Nicola Strachan. Before we could taste our pudding metaphorically speaking we had to eat our greens. In other words we had …

Injunctions against ISPs Part VI: The Football Association Premier League Ltd v British Sky Broadcasting Ltd and Others

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In The Football Association Premier League Ltd v British Sky Broadcasting Ltd and Others [2013] EWHC 2058 (Ch) (16 July 2013) Mr. Justice Arnold granted an injunction under s.97A of the Copyright, Designs and Patents Act 1988 against the top 6 internet service providers in the UK to block access to the First Row Sports website. As the judge had already made similar orders against the same defendants in Newzbin2 (see "Injunctions against ISPs" 6 Nov 26), Dramatico ("Injunctions against ISPs Part III: Dramatico Entertainment Ltd and Others v British Sky Broadcasting Ltd. and Others") and EMI ("Injunctions against ISPs Part V: EMI Records Ltd and Others v British Sky Broadcasting Ltd and Others" 5 March 2013) they did not defend the application but instead agreed the terms of the order with the Premier League. However, as the judge acknowledged at paragraph [7] of his judgment, that did not absolve the Court of the responsibility of determining whether the …

Patents: Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd

"In this case", began Lord Sumption in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46 (3 July 2013).  "Virgin Atlantic Airways Ltd wishes to recover damages exceeding £49,000,000 for the infringement of a European Patent which does not exist in the form said to have been infringed. The Technical Board of Appeal ("TBA") of the European Patent Office ("EPO") has retrospectively amended it so as to remove with effect from the date of grant all the claims said to have been infringed."

The reason why Virgin contended that it was nevertheless entitled to those damages is that the Court of Appeal had held that those same claims were valid and had been infringed, that the questions of validity and infringement were now res judicata and thus not capable of review and that there was authority to that effect from thee Court of Appeal in Coflexip S.A. and another v Stolt Offshore Ms Ltd. and others [2004] EWCA Civ 213 (27 Feb 2004) [2004] …

Trade Mark Infringement and Passing off: British Sky Broadcasting Group Plc v Microsoft Corporation

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In British Sky Broadcasting Group Plc and Others v Microsoft Corporation Microsoft and another[2013] EWHC 1826 (Ch), Sky (that is to say British Sky Broadcasting Group plc, Sky IP International Limited, British Sky Broadcasting Limited and Sky International AG) sued Microsoft (Microsoft Corporation and Microsoft Luxembourg Sarl) for infringement of its British and Community trade marks and passing off while Microsoft counterclaimed for declarations of invalidity of Sky's trade marks on grounds of descriptiveness and  impermissible amendment.

Sky's registrations were:

2 415 829 for the word 'SKY', for "computer software to enable searching of data; computer programs; computer software; computer software to enable connection to databases and the Internet; computer software supplied from the Internet".in class 9 and "communications by means of or aided by computers; transmission of text, messages, sound and/or pictures; computer aided transmission of message…