NIPC Law

 On 18 Sept 2008 I wrote in IP Yorkshire : "Team GB may have done very well at the Beijing Olympics but our inventors and entrepreneurs are nothing like as successful in the European patent application stakes. As can be seen from the ..... table [in the article], we trail a poor 7th in the number of European patent applications. Not only do we lag behind the economic super-powers, the USA and Japan, but we compare badly even to France and Germany with similar populations and GDP. We even trail the Netherlands and Switzerland with a third and an eighth of our population respectively and are about to be overtaken by distant South Korea which was a battlefield 50 years ago."  I considered why the UK does so badly and found that it was because "start-ups and other small businesses, that are the mainspring of innovation in the UK as in most of our competitors, make much less use of the intellectual property system than their equivalents in other countries and, indeed, mu...

Scotland's position in the British Isles, Europe and the World Source Wikipedia In "What would an independent Scottish government do about Intellectual Property?"  I discussed what the Scottish government said it would do about intellectual property if Scotland seceded from the United Kingdom. Today I will consider what the white paper did not say. The Current Situation Scotland like the rest of the UK protects intellectual assets (brands, designs, technology and works of art and literature) by a bundle of laws some of which derive from statute such as patents, copyrights and trade marks, some from European Union regulations such as Community designs and trade marks, and some such as confidentiality and passing off from common law. Some of those rights have to be registered with the Intellectual Property Office in Newport, others with the Office for Harmonization in the Internal Market ( "OHIM ) and European patents wit...

In view of recent opinion polls, I have taken another look at page 102 of the Scottish Government's white paper Scotland's Future . That contains a section headed "Intellectual Property" which consists of 4 paragraphs though only the first sets out any policy. The second is concerned with the Scottish Arbitration Centre , the third is on immigration and the fourth is on a joint venture between Visit Scotland and the Walt Disney Company and the exposition of Scottish food and drink in Florida. So what is the policy? I reproduce the first paragraph of the section on IP in full: "We will ensure continuity of the legal framework for protecting intellectual property rights. Independence will also allow Scotland to offer a simpler and cheaper, more business-friendly model than the current UK system, which is bureaucratic and expensive, especially for small firms. The UK is one of the few EU countries which does not offer a scheme that covers the bas...

Jane Lambert On 14 May 2014 the Intellectual Property Bill received royal assent. The Act made some far reaching changes in patents, registered design and unregistered design right law which I summarized in "Reflections on the Intellectual Property Act 2014"    7 June 2014   4-5 IP Tech and discussed in detail in " How the Intellectual Property Act 2014 changes British Patent Law"   21 June 2014 JD Supra, "How the Intellectual Property Act 2014 changes British Registered Design Law"   19 June 2014 JD Supra and "How the Intellectual Property Act 2014 will change British Unregistered Design Right Law"   11 June 2014 JD Supra 11 June 2014. On 28 Aug 2014 Lady Neville-Rolfe , Minister for Intellectual Property, signed  The Intellectual Property Act 2014 (Commencement No. 3 and Transitional Provisions) Order 2014  which will bring many of the provisions of the Act into force. Commencement Art 3 of the Order provides that most of the...

In Thomas Pink Limited v Victoria's Secret UK Ltd [2014] EWHC 2631 (Ch) (31 July 2014) Mr Justice Birss had to resolve a dispute between two well known retailers. The claimant was Thomas Pink  which had started life as a specialist shirt maker in Jeremyn Street. It is now part of the LVMH Group  the interests of which range from champagne to fashion. The defendant was  Victoria's Secret UK  which is best known for its bras and knickers  particularly in the US where it began. Both retailers are diversifying their businesses.  Thomas Pink's website has a section for "Women" after "New Collection", "Men", "Shirts", "Ties" and "Accessories" while Victoria's Secret is moving into women's clothing generally. The Dispute The battle arose over the right to use the word "Pink" as a brand. According to Wikipedia  the claimant was named after Thomas Pink, an 18th-century tailor, who made the h...

Can a monkey own copyright? Clearly not. At least not in England in at any rate for two reasons. First, a photograph is an artistic work (see s.4 (1) (a) of the Copyright Designs and Patents Act 1988 ( "CDPA" ))  and s.1 (1) (a) makes clear that copyright subsists in an artistic work only if it is original. Now the threshold for originality is very high but it does connote independent skill and labour which goes beyond monkeying around with a smart phone button. Even if the monkeying is done by a human being. Indeed even if it is done by a photographer. The other reason is that s.1 (3) provides that "Copyright does not subsist in a work unless the requirements of this Part with respect to qualification for copyright protection are met (see section 153 and the provisions referred to there)." Well those qualifications relate to nationality, residence and incorporation. Monkeys just don;t meet any of those criteria. What about the camera...

In Ifejika v Ifejika and another [2011] EWPCC 31 (23 Nov 2011) His Honour Judge Birss QC (as he then was) ordered among other things an inquiry (or alternatively, by implication, an account) in relation to a lens care product the design rights in which he held to have been infringed by the claimant's brother by of a competing product. The claimant elected an account of profits and this came on before HH Judge Hacon on 17 June 2014 ( Ifejika v Ifejika and another [2014] EWHC 2625 (IPEC) (31 July 2014)). This case is interesting for two reasons. First, it was an account of profits rather than an inquiry as to damages. Accounts are not common in intellectual property cases. Secondly, neither side was legally represented at the hearing so the judge had to do justice as best he could. He was therefore bound to explain the principles by which an account is to be taken. A factor that might have applied in other circumstances was that the defendant could have a...

German Federal Supreme Court Source Wikipedia On one of the hottest days of the year so far members of the Intellectual Property Bar Associaiton  gathered in the Pension Room of Gray's Inn to hear a presentation on German copyright law by Prof Ansgar Ohly . The title of his talk was Birthday Train or Eurostar which cleverly summed up the subject matter in a nutshell. The   Birthday Train is the name of a case before the German Federal Supreme Court in which the Court relaxed the originality requirement for the subsistence of copyright in works that could be protected by design registration in order to give effect to the Designs Directive (Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs). The case reference is  Urteil vom 13. November 2013 - I ZR 143/12 - Geburtstagszug   and there is a summary of the case here. The reference to Eurostar was an allusion to that Direct...

Jane Lambert S.39 (1) of the Patents Act 1977 provides: "Notwithstanding anything in any rule of law, an invention made by an employee shall, as between him and his employer, be taken to belong to his employer for the purposes of this Act and all other purposes if - (a) it was made in the course of the normal duties of the employee or in the course of duties falling outside his normal duties, but specifically assigned to him, and the circumstances in either case were such that an invention might reasonably be expected to result from the carrying out of his duties; or (b) the invention was made in the course of the duties of the employee and, at the time of making the invention, because of the nature of his duties and the particular responsibilities arising from the nature of his duties he had a special obligation to further the interests of the employer's undertaking." S.39 (2) provides that any other invention made by an employee shall, as between him...

As I said in How the Intellectual Property Act 2014 changes British Patent Law   21 June 2014 JD Supra, the most important provision of the Intellectual Property Act 2014  is s.17  which inserts a new s.88A into the Patents Act 1977. That section confers power on the Secretary of State to make provision in the UK for the Agreement on a Unified Patent Court . Why is that agreement important? It is because art 1 establishes a court common to almost all the countries of the European Union including the UK for the settlement of disputes relating to European patents and European patents with unitary effect ("Unitary patents").  That court will be known as the Unified Patent Court ("UPC") and it will consist of a Court of First Instance and a Court of Appeal. The Court of Appeal will sit in Luxembourg but the Court of First Instance will have a central division with Paris with sections in London and Munich. In addition there will be regional and local divisi...

Although some such as George Monbiot do not approve of it (see "This transatlantic trade deal is a full-frontal assault on democracy" 4 Nov 2013 The Guardian ) and many quite politically aware people are not even aware of it, negotiators from the United States and European Union have been hammering out a deal to create a North Atlantic Free Trade Area. If they succeed they will create a market of 800 million of the richest consumers on earth which should increase the GDP of all the countries in the arrangement enormously. An early discussion draft can be inspected here  and news of the latest negotiations can be gleaned from the press conference above. One of the reasons why Mr Monbiot does not like the deal is that disputes between businesses and governments will be determined not by the Court of Justice of the European Union or a national court but by arbitration as happens already under Chapter II of the North American Free Trade Agreement and a large number of bil...

The Intellectual Property Bill has passed through the Commons and now awaits royal assent. Although much attention has focused on clause 13 of the Bill which will create a new offence of unauthorized copying of a registered or registered Community design in the course of business the legislation makes a number of useful changes to registered and unregistered designs and patents law. I have written a number of articles on the Bill for this blog: "The Intellectual Property Bill" 26 May 2013 "Correspondence with my MP on Clause 13 of the Intellectual Property Bill"  29 May 2013, and "Clause 13 of the Intellectual Property Bill will probably go through. What next?"  20 Dec 2013. I also made written submissions on the Bill as it passed through committee in the House of Commons. My colleague, Thomas Dillon, has also analysed the Bill though he has tended to welcome clause 13 (see Thomas Dillon "UK: Intellectual Property Bill"  28...

In Yeda Research and Development Company Ltd v. Rhone-Poulenc Rorer International Holdings Inc and Others   [2007] Bus LR 1796, [2007] BusLR 1796, [2008] 1 All ER 425, [2007] UKHL 43 Lord Hoffmann described s.7 (2) and (3) of the Patents Act 1977  as "an exhaustive code for determining who is entitled to the grant of a patent." For determining entitlement to the grant maybe because s.32 (3) of the Act provides that "Notwithstanding anything in subsection (2)(b) above, no notice of any trust, whether express, implied or constructive, shall be entered in the register and the comptroller shall not be affected by any such notice."  But not necessarily to ownership because s.30 (1) states that patents and patent applications are personal property and sub-section (3) adds that they may vest by operation of law in the same way as any other personal property. `Disputes over equitable interests in patents or patent applications are fairly rare but they can arose in cir...