NIPC Law

European Commission Author:  Amio Cajander Source Wikipedia Creative Commons Licence A Euro-defence is an answer to a claim for the infringement of an intellectual property or other right under national law based on the primacy of European Union law. In the early days of our membership of what used to be called the European Economic Community such defences were pleaded quite regularly and they often succeeded. Probably the high water mark was Magill  ( Radio Telefis Eireann and Others v Commission of the European Communities   [1995] 4 CMLR 718, [1995] EUECJ C-241/91P, [1995] EMLR 337, [1995] All ER (EC) 416, [1995] ECR I-743, [1995] FSR 530, [1998] Masons CLR Rep 58) where the Court of Justice held that the enforcement of broadcasters' copyrights constituted an abuse of a dominant position within the meaning of art 86 of the Treaty of Rome (now  art 101 of the Treaty on the Functioning of the European Union as it has now bec...

Minister for Intellectual Property Crown Copyright Open Government Licence On 19 May 2016 Lady Neville-Rolfe, the Minister for Intellectual Property, introduced the Intellectual Property (Unjustified Threats) Bill  into the House of Lords. The purpose of the Bill is to reform the law relating to unjustified threats of IP infringement. The need for reform is illustrated by two comparatively recent cases: Prince Plc v Prince Sports Group Inc.  [1998] FSR 21 where the American lawyers of a well-known multinational sports goods supplier landed their client in High Court proceedings by demanding the transfer of a domain name by reference to their client's worldwide trade mark registrations in a letter before action that would have been quite unobjectionable in the United States; and  Brain v Ingledew Brown Bennison and Garrett (No. 3)   [1997] FSR 51 where a firm of solicitors was sued for pre-action correspondence that would have been quite...

In  Bapco Closures Research Ltd and Another v Selpac Europe Ltd [2016] EWHC 550 (IPEC) (18 March 2016), His Honour Judge Hacon had to decide a very short but very interesting point of claim construction. The patent in suit was European patent (UK) No 1, 656, 306 B1  which had been granted to  Bapco Closures Research Ltd ( "Bapco" ) for an opening device for a foil closure (that is to say, a ring pull). The invention is summarized in the following abstract: "Disclosed is an opening device for a foil closure can be fitted to a container body. The device comprises a spout (4) with a removable disc (10) attached to a pull-ring (12 ). The disc (10) is secured to the spout (4) by means of a frangible region (30). A f oil (8) is sealed to a raised land (34) on a base of the disc (10). The pull ring is mounted to the disc (10) by means of legs so that it applies a force on a peninsula (50) of the disc, thereby reducing the length of the arc over which an initi...

St Andrews from St Rule's Tower Author Peter Gordon Source Wikipedia Creative Commons Licence The Department for Culture, Media and Sport refers collectively to the following industries as "the creative industriels": Advertising and marketing Architecture Crafts Product design, graphic design and fashion design Film, TV, video, radio and photography IT, software, video games and computer services Publishing and translation Museums, galleries and libraries Music, performing arts, visual arts and cultural education According to the  Creative Industries Economic Estimates  published by the Department in January of this year, the gross value added (" GVA ") for the creative industries was £84.1 billion in 2014 and accounted for 5.2% of the UK economy. Between 1997 and 2014, the GVA of those industries increased by 6.0% each year compared to 4.3% for the UK economy.  It accounted for 3.9% of UK GVA in 1997 and increa...

The judgment of the Supreme Court in  PMS International Group Plc v Magmatic Ltd .  [2016] UKSC 12 has attracted a lot of flak over the last 24 hours much of it unjustified. According to the BBC website, Mr Robert Law, the founder of the Magmatic Ltd. which supplies  Trunki suitcases, predicted chaos after the Supreme Court upheld the Court of Appeal's decision that I discussed in  Registered Community Designs: Magmatic Ltd v PMS International Ltd   on   4 March 2014. In that decision the Court of Appeal allowed an appeal against Mr Justice Arnold's finding that the Kiddee Cases shown below had infringed Magmatic Ltd.'s registered Community design the representation of which appears above (see  Trunki loses ride-on animal suitcase court case   9 March 2016 BBC). While I have every sympathy with Mr Law who must have spent enormous sums on fruitless litigation and will no doubt face more expense after deta...

Jane Lambert In  Implementing the Unitary Patent in the UK   22 Feb 2016 I discussed the consultation on the implementation of the Unified Patent Court Agreement  in the legal systems of the United Kingdom. The consultation document, which was entitled  Technical Review and Call for Evidence on Secondary Legislation Implementing the Agreement on a Unified Patent Court and EU Regulations Establishing the Unitary Patent , contained a draft statutory instrument upon which the public's views were canvassed. I discussed the responses to that consultation and the government's reply. The government has now published a draft statutory instrument known as  The Patents (European Patent with Unitary Effect and Unified Patent Court) Order 2016  which will come into effect on the date of entry into force of the Agreement on a Unified Patent Court. The Draft Order The draft order consists of three articles: Art 1  concerns citation, the ent...

Royal Courts of Justice Author Anthony M  Source Wikipedia   Creative Commons Licence When a patent is infringed the patentee has the choice of an inquiry as to damages or an account of profits under s.61 (1) of the Patents Act 1977.  A similar choice is available to any other intellectual property right owner whose right is infringed. In  OOO Abbott and another v Design & Display Ltd and another [2016] EWCA Civ 95 Lord Justice Lewison set out the basic principles at para [7] of his judgment: "Section 61 (1) (d) of the Patents Act 1977 entitles a patentee to claim against an infringer an account of the profits "derived by him from the infringement". An account of profits is confined to profits actually made, its purpose being not to punish the defendant but to prevent his unjust enrichment. The underlying theory is that the infringer is treated as having carried on his business (to the extent that it infringes) on behalf of the patente...

Lisbon Bridge Photo Matt Perich Creative Commons Licence Art 35 (1) of the Unified Patent Court Agreement  establishes a patent mediation and arbitration centre with seats in Ljubljana and Lisbon. Its purpose is to provide facilities for mediation and arbitration of patent disputes falling within the scope of that Agreement. The Centre is required by art 35 (3) to establish Mediation and Arbitration Rules and by art 35 (4) to draw up a list of mediators and arbitrators to assist the parties in the settlement of their dispute. On 15 Feb 2016 the Preparatory Committee published the latest draft Mediation Rules for the Centre. These Rules will be incorporated into every mediation agreement. Art 2 (1) of the draft Rules states that the mediation service of the Centre offers support in the settlement of disputes relating to European patents and European patents with unitary effects for which the Unified Patent Court  is exclusively compe...

Just before the Scottish referendum I wrote a couple of articles on the SNP's proposals for intellectual property in a separate Scotland ( What would an independent Scottish government do about Intellectual Property?   10 Sept 2014 and  More on Scotland and Intellectual Property   13 Sept 2014). Today I shall attempt a similar exercise in respect of Brexit. What would not change Were we to withdraw from the European Union we would probably remain a member of the World Trade Organization  and bound by TRIPS ( Agreement on Trade-Related Aspects of Intellectual Property Rights) . Art 2 (1) of TRIPS requires WTO members to comply with Articles 1 through 12, and Article 19, of the Paris Convention . There is no reason why we should not remain party to the Berne , Rome  and other multilateral agreements to which we are party including the European Patent Convention . But what would However, we would miss out on the unitary patent and the Unifie...

Jane Lambert In  AP Racing Ltd v Alcon Components Ltd [2013] EWPCC 3 (5 Feb 2013) A P Racing Ltd . sued Alcon Components Ltd.  for patent infringement in the Patents County Court. The patent in suit was UK patent GB 2 451 690 for " disc brake caliper body and a disc brake caliper comprising such a body". His Honour Judge Birss QC (as he then was) found the patent to be invalid for insufficiency at paragraph [123] of his judgment. However, he also found that had the patent been valid 4 of the 5 shapes of Alcon's callipers would have infringed claim 1 of A P Racing's patent. A P Racing appealed successfully to the Court of Appeal in  AP Racing Ltd v Alcon Components Ltd ,    [2014] RPC 27, [2014] EWCA Civ 40.  The Court restored the patent and ordered an inquiry as to damages or an account of profits.  The claimant elected an inquiry which came on before His Honour Judge Halcon in  AP Racing Ltd v Alcon Components Lt...