Showing posts from 2018

Data Protection: Introduction to the Data Protection Act 2018

Jane Lambert

It is well known that the General Data Protection Regulation ("GDPR") came into force throughout the European Union on 25 May 2018.  What is less well known is that a new Data Protection Act 2018 came into force in the UK on the same day.  The Act complements the GDPR in that it repeals the Data Protection Act 1998 which had transposed the Data Protection Directive into English and Welsh, Scottish and Northern Irish law.  The GDPR repealed the Directive but not member states' implementing legislation,  The 2018 Act also provides machinery for the enforcement of the GDPR and regulates personal data processing that falls outside the scope of the Regulation.

Where to find out more about the Act
I publish most of my articles on data protection in a separate blog called NIPC Data ProtectionNIPC Data Protection is already a comprehensive resource on English and EU data protection law.  It has direct links to the Act as well as the GDPR as well as the previous le…

Injunctions against ISPs - the Supreme Court decides who pays the Cost of Compliance: Cartier International and Others v BT and Others

Jane Lambert
Supreme Court (Lords Mance, Kerr, Sumption, Mance and Hodge) Cartier International AG and others v British Telecommunications Plc and another[2018] 1 WLR 3259, [2018] WLR 3259, [2018] WLR (D) 354, [2018] UKSC 28
What this Appeal was about In Cartier International AG and others v British Sky Broadcasting Ltd and others: [2015] EMLR 10, [2015] 1 All ER 949, [2015] 1 All ER (Comm) 641, [2015] RPC 175, [2014] EWHC 3354 (Ch), [2015] BUS LR 298, [2015] RPC 7, [2015] Bus LR 298, [2015] ETMR 1, [2014] WLR(D) 464 Mr Justice Arnold made an order requiring British Sky Broadcasting Ltd. and other internet service providers ("ISPs") to block access to certain websites which promoted the sale of counterfeit products under s.37 (1) of the Senior Courts Act 1981. I blogged about the case in Injunctions against ISPs Part VIII: Cartier International AG and Others v British Sky Broadcasting Ltd and Others6 Jan 2015.
In order to comply with blocking orders such as Mr Justice Arnold&#…

Patents: A P Racing Ltd v Alcon Components Ltd (#2)

Jane Lambert

Court of Appeal (Lords Justices Lewison, Lindblom and Flaux) A P Racing Ltd v Alcon Components Ltd [2018] EWCA Civ 1420 (21 June 2018) 

This was an appeal by the claimant company, A P Racing Ltd ("AP"), against the decision of His Honour Judge Hacon in AP Racing Ltd v Alcon Components Ltd [2017] EWHC 248 (IPEC) (15 Feb 2017).  His Honour held that one of 7 disk brake calipers manufactured by Alcon Components Ltd ("Alcon") infringed UK patent no. GB 2,452,690 for a disc brake caliper body and a disc brake caliper comprising such a body but the other 6 did not. AP appealed against the finding of non-infringement in relation to 2 of Alcon's calipers, CAR 1249 and CAR 37.

The appeal came on before Lords Justices Lewison, Lindblom and Flaux and the lead judgment was delivered by Lord Justice Lewison.  His lordship did not mention in his judgment the precise grounds of appeal but it would appear that AP criticized Judge Hacon for not finding that a region…

Passing off: NGRS. v Bee Moved

Jane Lambert
Court of Appeal (Lady Justice Asplin and Lord Justice Kitchin)  The National Guild of Removers & Storers Ltd v Bee Moved Ltd and others [2018] EWCA Civ 1302 12 June 2018
This was an appeal from the decision of Mr Recorder Campbell QC in The National Guild of Removers And Storers Ltd v Bee Moved Ltd and others [2016] EWHC 3192 (IPEC) (13 Dec 2016) which was an action for passing off.  The appeal was over what constitutes a misrepresentation for the purposes of passing off and whether new evidence should be allowed on appeal.
The claimant company was described by Lady Justice Asplin as "a trade body which represents and provides services to its members in the removal and storage business".  Storage and removal companies that pay its fees and abide by its rules can describe themselves as a "member of the NGRS."  Those that cease to do so may no longer to hold themselves as members. They must remove all references to the Guild from their websites, adver…

Brexit Briefing - May 2018

Jane Lambert
Not a lot of progress since my last Brexit Briefing in April. A little bit more of the draft withdrawal agreement has turned from white or amber to green but there has been no progress on the stumbling blocks of the border between Northern Ireland and the Republic or the governance of the withdrawal agreement (or any other agreement between Britain and the EU). Without such agreement there can be no withdrawal agreement and hence no implementation or transition period.

The problem for the government is that maintaining a control free border means accepting at least some of the disciplines of the EU which in turn means abandoning dreams of an independent trade policy. However, if Ed Balls and Peter Sands are right the benefits of having an independent trade policy are pretty illusory (see What Sort of Trade Deal (if any) could the UK negotiate with the USA?8 June 2018).

I am increasingly of the view that there will be no withdrawal agreement by 29 March 2019 and that busin…

How the Trade Secrets Directive affects Inventors

Since all patented inventions start out as trade secrets and many other inventions remain that way for various reasons, the implementation of Directive 2016/943 ("the Trade Secrets Directive") is an important day for inventors in the UK and throughout the rest of the EU. More

Transposing the Trade Secrets Directive into English Law: The Trade Secrets (Enforcement etc) Regulations

Standard YouTube Licence

Jane Lambert

Art 19 (1) of Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure ("the trade secrets directive")requires each and every member state of the EU (including the UK for the time being) to bring into force the laws, regulations and administrative provisions necessary to comply with that directive by 9 June 2018. Accordingly, Mr Sam Gyimah MP, Minister of State at the Department for Business, Energy and Industrial Strategy, has signed The Trade Secrets (Enforcement, etc.) Regulations SI 2018 No 597 ("the regulations") which will come into force on that day.

Overview of the Regulations
The regulations so not purport to transpose the whole directive into English law. The statutory instrument consists of 19 regulations most of which relate to time limits, court procedur…

Brexit Briefing - April 2018

Jane Lambert

A rather more interesting Brexit Briefing this month because the UK has ratified the Unified Patent Court Agreement.  The article sets out the background to ratification and considers whether it will make a difference. 

Also discussed are the proposals to avoid a hard border on the island of Ireland and indications that HMG will accept the backstop arrangements for birder checks between Great Britain and both parts of the island of Ireland set out in the draft withdrawal agreement notwithstanding political and constitutional challenges to which that could lead.

Finally, there is the agenda for discussions on the future partnership between the UK and EU after Brexit which would include services and some encouraging remarks about the city of London from Monsieur Barnier at the Eurofi High Level Seminar in Sofia on 26 April 2018.


Happy World Intellectual Property Day

Jane Lambert

Today is World Intellectual Property Day. It commemorates the day on which the day in 1970 on which the Convention Establishing the World Intellectual Property Organization ("WIPO") came into force. Since the day has been marked by events around the world to promote awareness of intellectual property.

Most of those events follow a common theme.  This year's theme is Powering change: Women in innovation and creativityThe WIPO website explains:

"Every day women come up with game-changing inventions and life-enhancing creations that transform lives and advance human understanding from astrophysics to nanotechnology and from medicine to artificial intelligence and robotics.

And in the creative sphere, whether in the movies, animation, music, fashion, design, sculpture, dance, literature, art and more, women are re-imagining culture, testing the limits of artistry and creative expression, drawing us into new worlds of experience and understanding.

The imp…

FRAND - Conversant Wireless Licensing v Huawei and Another

Jane Lambert

Patents Court (Mr Justice Henry Carr) Conversant Wireless Licensing SARL v Huawei Technologies Co. Ltd and others [2018] EWHC 808 (Pat)

Although the precise relief sought in these proceedings is not mentioned in this judgment, it must have been a strike out or stay of a claim for patent infringement.  The applicants were the Chinese companies, Huawei Technologies Co. Ltd. ("Huawei") and the ZTE Corporation ("ZTE") and their respective British subsidiaries which are defendants to a claim by Conversant Wireless Licensing S.A.R.L ("Conversant") for patent infringement.

The patents alleged to have been infringed are part of a worldwide portfolio that Conversant has offered to license on FRAND (fair, reasonable and non-discriminatory) terms. I discussed such licences in FRANDon8 Oct 2017 and FRAND - a Postcripton 16 Jan 2018. Huawei and ZTE have not yet taken up Conversant's offer.  They  dispute the validity of Conversant's patents. They d…

Data Protection: The "Right to be Forgotten" Updated

Jane Lambert

The phrase, "the right to be forgotten", was coined by the Audiencia Nacional (the Spanish high court) in its questions to the Court of Justice of the European Union ("CJEU") pursuant to art 267 of the Treaty on the Functioning of the European Union in Case C‑131/12 Mario Costeja Gonzalez v Google Spain SL and another [2014] 2 All ER (Comm) 301, [2014] All ER (EC) 717, [2014] 1 QB 1022, [2014] 3 CMLR 50, [2014] ECDR 16, 36 BHRC 589, ECLI:EU:C:2014:317, [2014] EMLR 27, EU:C:2014:317, [2014] 3 WLR 659, [2014] EUECJ C-131/12, [2014] QB 1022.

In that case the Audiencia Nacional asked the CJEU

"whether Article 2(b) of Directive 95/46 is to be interpreted as meaning that the activity of a search engine as a provider of content which consists in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of p…

The Business and Property Courts Practice Direction - IP Litigation outside London

Jane Lambert

According to TaylorWessing's Patent Map, England and Wales remains the most expensive country in Europe in which to contest a patent action. The European Patent Office reports that the UK lay 9th in the number of European patent applications that were filed in 2017 trailing not just the USA, Japan, China and Germany which are considerably bigger in population and GDP than the UK but France, South Korea, Switzerland and the Netherlands that are the same size or smaller (see European patent filings per country of origin). It seems likely that the UK's relatively lacklustre performance in the number of European patent applications is connected to the high cost of enforcement.  I have plenty of anecdotal evidence from my practice, patent clinics and inventors' clubs to support that contention.

One of the reasons why patent litigation in England and Wales is more expensive than in other countries including other common law jurisdictions such as the Republic of Irel…