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Showing posts from August, 2019

Copyright - Kraftwerk v Pelham

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Jane Lambert

Court of Justice of the Europen Union (Presifdebt Lenaerts, President, Judges Arabadjiev, Vilaras, von Danwitz, Toader, Biltgen and Lycourgos, Presidents of Chambers, Juhász, Ilešič (Rapporteur), Bay Larsen and Rodin) Case 476/17 Hütter and another b Pelham and others [2019] EUECJ C-476/17, EU:C:2019:624, [2019] WLR(D) 439, ECLI:EU:C:2019:624

Can the reproduction of a 2-second rhythm sequence from a 1977 sound recording infringe copyright, performers' rights or other intellectual property rights?  The Landgericht (court of first instance) for Hamburg thought it did on two occasions as did the regional court of appeal. The German Supreme Court and Constitutional Court were less sure. Finding that the case turned on the interpretation of arts 2 (c) and 5 (3) (d) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society OJ L 167, 22.6.200 and of ar…

Copyright - Beck v Spiegel Online

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Jane Lambert

Court of Justice of the European Union (K. Lenaerts, President, Arabadjiev and Judges Vilaras, von Danwitz, Toader, Biltgen and Lycourgos and Presidents of Chambers, Juhász, Ilešič, Bay Larsen and S. Rodin) Case C-516/17 Beck v Spiegel Online GmbH: [2019] EUECJ C-516/17, EU:C:2019:625, ECLI:EU:C:2019:625, [2019] WLR(D) 440

This was a reference under art 267 of the Treaty on the Functioning of the European Union by the Bundersgerichthof (German federal supreme court) on the interpretation of art 5 (3) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10). It arose in the course of an appeal against an appellate court's decision to dismiss an appeal from a first instance court's finding that Spiegel Online GmbH had infringed Volker Beck's copyright.

The Action
Until 2017 Mr Beck had been a member of the German fede…

Trade Marks - NXP BV v ID Management Systems

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Jane Lambert

Intellectual Property Enterprise Court (Mr Recorder Campbell QC) NXP BV v ID Management Systems [2019] EWHC 1902 (IPEC) (31 July 2019)

This was an action for trade mark infringement.  The claimant was the registered proprietor of several EU trade mark registrations of the word MIFARE for goods in class 9 either simpliciter as in  EU10920007 or in combination with a device as in WE1191506.  The claimant complained that the defendant company had infringed those trade marks by selling counterfeit smart cards on two occasions.

This action started in the small claims track of the Intellectual Property Enterprise Court.  The claimant had limited its claim to £10,000 and did not allege that the defendant had infringed its trade marks on any other occasion.  Nevertheless, on reviewing the papers the district judge transferred the case to the multitrack on his own initiative. Neither party appealed his decision.

The claim came on for trial before Mr Recorder Campbell QC on 4 July …

Patents - Quinn v Linpac

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Jane Lambert

Intellectual Property Enterprise Court (HH Judge Hacon) Quinn Packaging Ltd v Linpac Packaging Ltd and another  [2019] EWHC 2119 (IPEC) (31 July 2019)

This was a claim by Quinn Packaging Ltd. for the revocation of British patent GB1100292.0 which is held by Linpac Packaging Ltd. on the ground of obviousness. Quinn also claimed the revocation on the same grounds of a patent that had been granted to Faerch A/S the title and number of which are not mentioned in the transcript. The item of prior art relied on by Quinn in both cases was Australian Patent No. 638092 Method for manufacturing containers provided with a peelable closure,

The issue in dispute was whether a skilled person who read the Australian patent before the priority dates of the Linpac and Faerch patents knowing of the need for a better sealing solution for plastic food trays would have recognized that the Australian patent provided the answer, namely the idea of creating a flange around the top periphery of t…

Patents - Takeda UK Ltd v F Hoffmann-La Roche AG

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Patents Court (Mr Justice Birss) Takeda UK Ltd v F Hoffmann-La Roche AG (Rev 1) [2019] EWHC 1911 (Pat) (17 July 2019)

This was a claim by Takeda UK Ltd. ("Takeda") for revocation of European patent (UK) No EP2007809 on grounds of lack of novelty, want of an inventive step and insufficiency and a counterclaim by F. Hoffmann-La Roche AG ("Roche"), the owner of the patent, for infringement.  This litigation appears to have arisen because Takeda has a product called Entyvio which is a formulation of a monoclonal antibody called vedolizumab.   Roche believes that vedolizumab infringes its patent. The action and counterclaim came on for trial before Mr Justice Birss between the 12 and 27 June 2019. He delivered judgment on 17 July 2019.

The Patent
The title of the patent was glycosylated antibodies.   Mr Justice Birsss discussed the patent between paragraphs [51] and [101] of his judgment.  The claims alleged to have been infringed were 1, 2, 3, 4, 6 and 7.  The judge se…

Trade Marks and Passing off - Claridge's Hotel Ltd v Claridge Candles Ltd

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Jane Lambert

Intellectual Property Enterprise Court (Mr Recorder Campbell) Claridge's Hotel Ltd v Claridge Candles Ltd and Another  [2019] EWHC 2003 (IPEC)

This was an action for trade mark infringement and passing off. There was also a counterclaim for revocation of the marks in suit for non-use.  The claimant was the owner and operator of Claridge's, the well-known luxury hotel on the corner of Brook Street and Davies Street.  The defendants were a small private company that supplied candles like the one in the photograph below and its only director and majority shareholder, Denise Shepherd, who lives on a street that happens to be called Claridge Court.

The Claimant's Mark
The claimant registered the word CLARIDGE'S as a UK trade mark with effect from 22 July 2005 for the following goods and services:

Class 3: "Toiletries; shampoos; conditioners; bath preparations; body lotions; essential oils; shower gels; moisturiser".
Class 5: "Bath preparations; hai…

The Trial - Conversant v Huawei Technologies and Others

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Patents Court (Mr Justice Arnold) Conversant Wireless Licensing SARL v Huawei Technologies Co. Ltd. and Others [2019] EWHC 1687 (Pat)

This was a claim by Conversant Wireless Licensing SARL  against Huawei Technologies Co. Ltd.ZTE Corporation and their respective British subsidiaries for patent infringement. The patent in suit was European patent (UK) 1797659 entitled  Slow MAC-e for autonomous transmission in high speed uplink packet access (HSUPA) along with service specific transmission time control. The claimant contended that the patent was essential to an aspect of the 3rd generation mobile phone Universal Mobile Telecommunications Standard ("UMTS") referred to as Uplink DRX,  As the defendants distributed mobile phones that complied with that standard the claimant complained that the defendants would have infringed its patent.  The defendants denied essentiality and hence infringement and counterclaimed for revocation of the grounds of added matter, obviousness and ins…

Missed! Arrow Declarations - Pfizer v Hoffmann La Roche

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Jane Lambert
Patents Court (Mr Justice Birss)Pfizer Ltd v F. Hoffmann-La Roche AG and another [2019] EWHC 1520 (Pat) (20 June 2019)

An "Arrow declaration" is a declaration that a product or process was known or obvious at a particular date and therefore could not fall within the claims of a patent.  It takes its name from the decision of Mr Justicce Kitchin as he then was in Arrow Generics Ltd and another v Merck & Co,  [2007] FSR 39, [2007] EWHC 1900 (Pat), [2008] Bus LR 487 where his lordship refused to strike out an application for such a declaration. The purpose of Arrow declarations is to determine in advance issues that might prevent or delay a  competitor from entering a market immediately after a monopoly is due to come to an end.  Thus, in Arrow, the launch of a competing product was threatened by the revival of several divisional applications that had been derived from a revoked patent.  Had the competitor not applied for the declaration when it did it might hav…