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Showing posts from 2019

Joint Copyright - The Appeal in Martin and Another v Kogan

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Jane Lambert

Court of Appeal (Lords Justices Floyd, Henderson and Jackson) Martin and another v Kogan[2019] EWCA Civ 1645

Readers can judge from the video that Florence Foster Jenkins was about as good at singing as William McGonagall was at poetry or, indeed, I am at ballet. In 2016 a film was made about her life which grossed receipts of US$44.3 million.  The screenplay was credited to one Nicholas Martin but his partner, Julia Kogan, claimed to be a joint author.  Mr Martin brought proceedings against Ms Kogan for a declaration that he was sole author of the work and owner of the copyright subsisting in it. She counterclaimed for a declaration that she was a joint author and copyright owner and sought damages for infringement of her copyright.  The action and counterclaim came on for trial before His Honour Judge Hacon in Martin and another Kogan and others [2017] EWHC 2927 (IPEC) (22 Nov 2017),  His Honour found for Mr Martin and I wrote a case note on his j…

Practice Direction - Pre-Action Conduct and Protocols Uodate

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Jane Lambert

The Practice Direction - Pre-Action Conduct and Protocols has been updated with effect from 9 Oct 2019.  It was last updated on 29 April 2015 and I wrote about the changes in What to do about the new Practice Direction - Pre-Action Conducton 6 May 2015. I explained the importance of the Practice Direction in Pre-Action Correspondence - Not Just a Box to be ticked or a Hoop to be jumped through2 Aug 2017.

The updated Practice Direction contains the following paragraphs:

TitleNumberIntroductionPara. 1Objectives of pre-action conduct and protocolsPara. 3ProportionalityPara. 4Steps before issuing a claim at courtPara. 6ExpertsPara. 7Settlement and ADRPara. 8Stocktake and list of issuesPara. 12Compliance with this practice direction and the protocolsPara. 13LimitationPara. 17Protocols in forcePara. 18
The key provision of this Practice Direction is the first sentence of paragraph 8: "Litigation should be a last resort." The object is to resolve disputes through negotia…

Software Patents: Adobe Systems Incorporated's Application

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Jane Lambert

Intellectual Property Office (Nrs C L Davies) Re Adobe Systems Inc.'s ApplicationO/549/19 19 Sept 2019

This was an appeal by Adobe Systems Incorporated against the examiner's refusal to allow its application for a patent for a method and system for recommending software actions to create an image and recommending images to demonstrate the effects of software actions to proceed to grant. The examiner objected to the application on the grounds that it was for a program for a computer and a mathematical method within the meaning of s.1 (2) (a) and (c) of the Patents Act 1977.

That subsection declares that mathematical methods and programs for computers among other things are not inventions for the purposes of the Act but that declaration is subject to the proviso that it "shall prevent anything from being treated as an invention for the purposes of this Act only to the extent that a patent or application for a patent relates to that thing as such." That phra…

Passing off - Glaxo Wellcome UK Ltd. v Sandoz Ltd.

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High Court of Justice, Business and Property Courts of England and Wales, Intellectual Property List, Chancery Division (Lord Justice Arnold) Glaxo Wellcome UK Ltd and Another  v Sandoz Ltd and Others [2019] EWHC 2545 (Ch) (4 Oct 2019)

This was an action for passing off. The claimants alleged that the defendants were passing off their dry powder inhalers ("DPI") as and for the claimants' by presenting and packaging them in purple. The action came on for trial before Lord Justice Arnold in July 2019. His lordship dismissed the claim in his judgment of 4 Oct 2019.

The Claimants
The claimants, Glaxo Welcome UK Ltd. and Glaxo Group Ltd. have marketed a combination of salmeterol and fluticasone for the treatment of asthma and chronic obstructive pulmonary disease ("COPD") under the trade mark Seretide in a proprietary DPI branded Accuhaler since 1999 and in a metered dose inhaler ("MDI") branded Evohaler since 2000. Both the Seretide Accuhaler and the S…

Legal Professional Privilege: Addlesee and others v Dentons Europe LLP

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Jane Lambert

Court of Appeal (Lords Justices Lewison, Floyd and Hamblin) Addlesee and others v Dentons Europe LLP [2019] EWCA Civ 1600 (2 Oct 2019)

This was an appeal against Master Clark's refusal to order disclosure of certain documents on the grounds that they were privileged.  The applicants for disclosure were investors in a Cypriot company called Anabus Holdings Ltd ("Anabus") and the respondents were Anabus's former solicitors. Anabus had been wound up though it would still have been possible to restore it to the register.  The applicants, who had lost a lot of money from investing in Anabus, had brought deceit and negligence proceedings against the solicitors. At paragraph [1] of his judgment, Lord Justice Lewison summarized the issue in this appeal as: "what happens to legal advice privilege attaching to communications between a company and its lawyers, once that company has been dissolved; and the Crown has disclaimed all interest in its former property…

The Labour Party's Proposals for Patent Reform

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Jane Lambert

It is not often that intellectual property is discussed at a party conference.  While public attention was focused on the Supreme Court's decision in R (Miller) v The Prime Minister [2019] UKSC 41, the leader of the opposition made this very interesting commitment in his speech to the Labour Party conference:

"We will redesign the system to serve public health – not private wealth – using compulsory licensing to secure generic versions of patented medicines. We’ll tell the drugs companies that if they want public research funding then they’ll have to make their drugs affordable for all. And we will create a new publicly owned generic drugs manufacturer to supply cheaper medicines to our NHS saving our health service money and saving lives. We are the party that created the NHS. Only Labour can be trusted with its future."

He made that commitment after talking about the child in the video above.  According to the Labour Party leader, t…

Unregistered Community Designs - Beverly Hills Teddy Bear Company v PMS International Group Plc

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Jane Lambert

Intellectual Property Enterprise Court (HH Judge Hacon) Beverly Hills Teddy Bear Company v PMS International Group Plc[2019] EWHC 2419 (IPEC)

Art 267 of the Treaty on the Functioning of the European Union provides:

"The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.
If such a qu…