Articles, Case Notes, Presentations and In-depth Discussion of IP and Technology Law.
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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
CPR 63.20 (2) requires those bringing claims in the Intellectual Property Enterprise Court ("IPEC") including the small claims track to state whether they have complied with paragraph 7.1(1) and Annex A (paragraph 2) of the Practice Direction (Pre-Action Conduct). If they don't the defendant has an extra 28 days in which to file his or her defence under CPR 63.22 (3). But if you actually turn to the Practice Direction - Pre-Action Conduct you will find that the old paragraph 7 and Annex A aren't there any more.
That is because the practice direction was updated on 29 April 2015. In their place, paragraph 6 provides:
"Steps before issuing a claim at court 6. Where there is a relevant pre-action protocol, the parties should comply with that protocol before commencing proceedings. Where there is no relevant pre-action protocol, the parties should exchange correspondence and information to comply with the objectives in paragraph 3, bearing in mind that compliance shou…
Part of the reason for that may be the statutory entrenchment of the ideas-expression dichotomy by s.102 (b) of the US Copyright Act (17 USC 102 (b)) now transposed to TRIPS by art 9 (2) of that Annexe. Part of it may be psychological arising from the requirement to register a copyright in order to bring proceedings in the USA. The significance of that requirement is that it leads to the dissection of a work into "copyrightable" and "non-copyrightable" elements. We have never taken that app…
Court of Justice of the European Union ( K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.-C. Bonichot, A. Arabadjiev, M. Vilaras (Rapporteur), E. Regan, T. von Danwitz and C. Toader, Presidents of Chamber, A. Rosas, E. Juhász, M. Ilešič, M. Safjan, C.G. Fernlund, C. Vajda and S. Rodin, Judges) C-310/17, Levola Hengelo BV v Smilde Foods BV ECLI:EU:C:2018:899,  EUECJ C-310/17, EU:C:2018:899 (13 Nov 2018)
This is one of the most remarkable cases that I have ever read. It is important because it greatly increases the range of creations in which copyright can subsist. I first thought it was a bit of a joke because that is how it was presented in the press (see Food taste 'not protected by copyright' rules EU court13 Nov 2018 BBC website). Now I see its potential for all the creative industries.
The owner of the intellectual property rights in a spreadable dip called Heks'nkass sued Smilde Foods for infringing its copyright in the taste of…