|Pay it to the winning side, of course!|
Wednesday, 16 April 2014
|So they say.|
Whilst dismissing the trade mark infringement claims, the District Court of Paris found Google liable of unfair competition and misleading advertising [the decision is available here, in French]. In particular, the District Court ruled that, in providing the AdWords service, Google “directs, suggests and supports” users’ advertising activity. Accordingly, the Court considered that the Big G could not benefit from the liability exemption pursuant to the E-Commerce Directive and that, instead, it had to comply with the liability rules applicable to “traditional” publishers.
|Harbour must be somewhere there...|
|Confusing clues of activity|
Tuesday, 15 April 2014
Back in the UK, here's a sad Easter story. Would you deny a 3-year child the pleasure of having his first name iced on a chocolate Easter egg? Apparently this is what happened to little Rooney Scholes. A neighbour of his went to the Bury's Thornton store looking for a treat for the child, and asked to have his first name iced on a chocolate Easter egg. The store managers refused, on grounds that Manchester United hero Wayne Rooney could sue them for "copyright" infringement. Eventually, little Rooney got his Easter egg, but only because the neighbour consented to having his surname added onto the egg surface. This Kat has the slight suspicion that this story has nothing to do with copyright, but is nonetheless a further demonstration [do you remember the British Library story?] of how often our beloved copyright is used to scare people off with no apparent reason. As to other possible IP grounds, eg trade mark law, they look equally ... groundless.
Can this be true? This Kat was truly shocked when she read on Twitter yesterday (courtesy of @Cgarciaberned) that a new study funded by a coalition of music, film, publishing and videogame companies has found that 84% of content consumed in Spain is from unlicensed sources. This actual "big" data comes at a time when Spain is reforming its IP regime, as Katfriend Fidel Porcuna (Bird&Bird) explained a few weeks ago.
Around the weblogs. On The 1709 Blog Jeremy reports on EU external competence to negotiate copyright protection treaties and the recent Opinion of Advocate General Sharpston in Case C-114/12 European Commission v Council of the European Union. On Class 46 former guest Kat Laetitia tells a story of cows and cream fudge, while on Art and Artifice Simone reports of how priceless art has been recently discovered in a San Francisco storage facility.
Venue for Post-Fordham Copyright Catch-Up. As Jeremy announced last month, on 6 May the Post-Fordham Copyright Catch-Up event will take place. The venue for this seminar will be the lovely London offices of Olswang LLP. There are still places available, and you can register here.
A summer school in Moscow. From 30 June to 4 July 2014 the National Research University - Higher School of Economics will be hosting the International Summer School on Cyber Law "in a beautiful green area in Moscow". The School is covering accommodation costs and meals of selected participants. Further information is available here.
Here's a link directly to the report page.
Blogmeister Jeremy reported yesterday that the Max Planck Institute for Innovation and Competition was about to issue a Declaration on Patent Protection. Hearty Katpat to Kat Emeritus and ongoing Katfriend Matthias Lamping for alerting the IPKat to it.
The text is now posted on the MPI website at http://www.ip.mpg.de/en/pub/news/patentdeclaration.cfm.
You can sign the Declaration as a Supporter by emailing Matthias Lamping as indicated at the above link. The list of supporters will be indicated here.
Monday, 14 April 2014
The IPKat has just been perusing the meaty yet compact decision in the case of Hospira v Genentech (Hospira UK Ltd v Genentech Inc  EWHC 1094 (Pat) (10 April 2014)) which came out last Thursday from Mr Justice Birss. It concerns two patents, related only in that they both concern the antibody trastuzumab, more famously known as Herceptin (RTM), which is used for the treatment of breast cancer. Other than that they are quite different, the first EP 1 210 115 being concerned with a dosage regime, and the second EP 1 308 455 with a purified composition.
EP 1 210 115
Claim 1 was as follows:
Use of the anti-ErbB2 antibody huMab4D5-8 [trastuzumab]
in the manufacture of a medicament for use in a method for treating a human patient diagnosed with a breast cancer characterized by overexpression of ErbB2,
said method comprising the steps of
administering intravenously to the patient an initial dose of 8mg/kg of the anti-ErbB2 antibody; and
administering intravenously to the patient a plurality of subsequent doses of the antibody in an amount that is 6 mg/kg, wherein the doses are separated in time from each other by three weeks.
This claimed treatment regime involves an 8mg/kg loading dose and subsequent doses of 6mg/kg on a three weekly schedule. This regimen can be summarised as 8 + 6 q3w [don't you just love those pharmacist abbreviations, says Merpel - apparently the "q" stands for "quaque", meaning "every"].
|Was this not the skilled team you were looking for?|
In the alternative, if the claim was not obvious, then the judge would have considered the patent invalid for insufficiency, because “the skilled team would not conduct a clinical trial of the claimed three weekly dosing regimen based on the information in the patent read in the light of the common general knowledge”.
EP 1 308 455
Claim 1 was as follows:
A composition for therapeutic use comprising a mixture of anti-HER2 antibody and one or more acidic variants thereof,
wherein the amount of the acidic variant(s) is less than about 25%,
and wherein the acidic variant(s) are predominantly deamidated variants wherein one or more asparagine residues of the anti-HER2 antibody have been deamidated,
and wherein the anti-HER2 antibody is huMAb4D5-8 [trastuzumab],
and wherein the deamidated variants have Asn30 in CDR1 of either or both VL regions of humMAb405-8 converted to aspartate,
and a pharmaceutically acceptable carrier.
This patent was about purifying trastuzumab so that it contained mainly only one acidic variant, namely one in which the asparagine residue at the 30 position had been deaminated (hydrolysed) to aspartate, and that in an amount of less than “about 25%”, which was agreed to mean less than 24.5%. It is noteworthy that the claim was not limited to any particular method, but claimed the product as such.
This was held to lack novelty over a prior Genentech PCT application PCT/US96/12251 ("Andya") which was published as WO 97/04801. In particular a specific formulation disclosed therein, which the judge found to be enabling, in which 82% of the protein was native trastuzumab, so that the maximum level of acidic variants was 18%, was held to anticipate the claim.
The claim was also held to lack inventive step having regard to “Waterside” - prior art consisting of slides presented at a conference by Reed Harris from the Analytical Chemistry Department of Genentech. Other inventive step attacks were rejected.
Finally, for good measure, a declaration of non-infringement was granted to Hospira in relation to this patent, since the levels of acidic variants were outside the range.
The judgment records that “Both patents were opposed in the EPO. In both cases the Opposition Division has held the patent is invalid. Both are presently under appeal before the Technical Board of Appeal.” The upshot of the case is that, subject to any appeal in the UK, Hospira has cleared the way to sell generic trastuzumab after the supplementary protection certificate (SPC/GB04/015) based on the basic underlying patent held by Genentech on trastuzumab (EP 0 590 058) expires on 28th July 2014.
|Luca followed the #HappyKat |
event from Italy (GMT +1)
|Also brave Max followed the event, |
but he was in a slightly
more challenging time zone: HST
- Darren Meale (@DarrenMeale) - Blocking Injunctions: The Weapon of Choice in the UK?
- Brigitte Lindner - Life (and Death?) of HADOPI in France
- Alberto Bellan (@albertobellan) - The AGCOM Regulation in Italy: Nessun Dorma
- Simon Morrison (@yesmorrison) - How Google Fights Piracy [see here, here, and here]
- Birgit Clark (@BirgitC) - ISP Liability Through Interference in Germany
- Tom Ohta (@Tom_Ohta) - Graduated Response: What Role Do Private Agreements Play?
- Serena Tierney (@Serena_Tierney) - The UK Copyright Hub [see here]
- Lisa Peets and Gareth Young - Creating a Global Internet Anti-Piracy Strategy
- Eleonora Rosati (@eLAWnora) - Copyright Enforcement in the EU: Review Plans in the Shade of CJEU Blooming Activism
20 Years WTO/TRIPS: Experts Show: Problems of the Patent System are Home-Made
Patent law is omnipresent in the business news of today. One record number of patents issued follows the next. At the same time, the public consciousness is occupied by ‘patent wars’ between Smartphone manufacturers, massive demonstrations against the perceived greed of pharmaceutical companies or the patenting of tomatoes, animals and even parts of the human body. At the time of its introduction, the patent system was not without controversy either. However, is it now at the brink of collapse? What are the problematic issues -– are they to be found in international law? 40 patent law experts from 25 countries deliver answers. In the ‘Declaration on Patent Protection’, published in connection with the 20th anniversary of the WTO, they demonstrate the manner in which the international legal order leaves ample space for differing designs of national patent systems and how this flexibility promotes economic growth and social welfare.On April 15, 1994, the community of states entered into an historic agreement of international law. With the establishment of the World Trade Organization (WTO) they responded to the globalization which had been rapidly progressing since the 80s. The WTO is based on three pillars, the General Agreement on Tariffs and Trade (GATT), the General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). By incorporating the major international treaties on intellectual property at the time, the TRIPS Agreement became the benchmark for national IP systems practically overnight ['practically overnight' is the way it might look if viewed through the binoculars of 2014, but it was a long, long process while it was actually happening, notes this Kat, who was alive at the time ...]. Today, the WTO has 159 member states, including all industrial nations and upcoming economies such as China and Russia, in addition to a number of developing and emerging countries.
In the two decades since, the perception of intellectual property’s importance and function has changed substantially. It did not take long for the Internet to reveal the darker sides of copyright law. In contrast, the drawbacks of the patent system have only recently come to light. Nowadays, the patent system makes headlines for the disputes it generates instead of for the innovation it promotes. Smartphone manufacturers like Apple, Microsoft and Samsung engage in litigation wars and try to drive each other out of the market. Pharmaceutical companies are accused of blocking, or at least delaying, the market entry of generics in order to maintain high prices for their blockbuster drugs. So called ‘patent trolls’ have come into the spotlight for buying up entire patent portfolios -- not to manufacture their own products but to extract licensing profits by blackmailing alleged infringers. Not all industries are equally affected by these phenomena, but there is a general perception that patents are increasingly used for strategic purposes rather than to protect innovation [it's regrettable that IP is consistently subjected to analysis in simple binary terms. For example, patents can be used both for strategic purposes and to protect innovation].
Disappointment awaits those who expect to find the potential damage of such dysfunctional patent uses reflected in the debates about international law. Most developed countries vehemently advocate strengthening patent protection even more. However, these efforts are now met with considerable resistance [curiously, little reference is made in these disputes to the presence and the efficacy (of lack of it) or otherwise of the antitrust and competition law provisions which may be used to neutralise abuses caused by over-strong IP protection]. Roughly two years ago, the Anti-Counterfeiting Trade Agreement (ACTA) raised the level of public awareness in this regard. This secretly negotiated agreement led to a global outcry and resulted in a wave of public demonstrations across the globe.
The success of such resistance was remarkable. Several legislators, including the European Parliament, have rejected ACTA. However, this victory was rather limited in scope. The world’s attention has now been turned to the Trans-Pacific Partnership (TPP), which is currently being negotiated –- still secretly, but this time without the participation of the EU –- between the Unites States and a number of other countries. In addition, there are several other, often equally intransparent, bilateral negotiations going on. Patent law is often a subject matter of these negotiations. In exchange for trade concessions in other areas like textiles or agriculture, developing countries are being persuaded to implement high standards of patent protection which are often not in their interest. Such standards may even prove detrimental to the long-term development of national innovation capacities and may therefore ultimately only serve export interests of trading partners.
Intellectual property is not merely a third-world problem. It is a global challenge. As important as the legal certainty resulting from exclusive rights may be in maintaining investment incentives, the very same rights can cause immense harm if protection becomes excessive and thereby compromises effective competition or other public interests. Thus it is vital to achieve the appropriate scope of legal protection. More protection does not necessarily lead to more innovation. Patent law does not merely function to serve the interests of inventors and right holders. It is a regulatory institution.
It is often claimed that international law requires a high level of patent protection and leaves little policy space for pursuing national public interest goals. In a ‘Declaration on Patent Protection” a renowned group of patent and international law experts prove this assertion to be inaccurate. In particular, the experts declare that international law permits many measures which are essential to a sustainable patent system. The hostility shown to the TRIPS Agreement by many developing and emerging economies is often owed to a failure to recognize the actual flexibility afforded by the Agreement with regard to the design and application of national law [bravo, cheers this Kat, who has been saying this for years ...].
Roll on tomorrow! Let's see the details. Then we can start to discuss them in earnest ...The Declaration on Patent Protection was drafted under the auspices of the Max Planck Institute for Innovation and Competition in Munich. It is the result of two decades of intensive research. In brief and clear manner, the Declaration indicates the interpretive scope of TRIPS norms. Overall, the Declaration remains neutral – it is neither directed at states with a specific level of development nor does it aspire to provide recommendations for legal action. It only points out the regulatory discretion that national legislators enjoy when it comes to implementing their own patent systems. In the end it is up to the individual state to choose the option that best suits its national socio-economic situation.
The Declaration on Patent Protection supplements the existing research work of Max Planck Institute for Innovation and Competition. Six years ago the Institute published a Declaration on a ‘Balanced Interpretation of the Three-Step Test in Copyright Law', which deals with limitations and exceptions to copyright protection and has received worldwide attention. Both Declarations are flanked by ‘Principles for Intellectual Property Provisions in Bilateral and Regional Agreements’, in which the risks of unbalanced free trade agreements (FTAs) are pointed out and recommendations are given with regard to the definition of negotiation mandates, negotiations as such as well as the interpretation and implementation of FTAs.
|Taking photos of buildings is|
easy: they don't keep moving
|Hi Hotel, Nice|
|Book, also nice ...|
‘Is Article 5(3) of Regulation … 44/2001 to be interpreted as meaning that the harmful event occurred in one Member State (Member State A) if the tort or delict which forms the subject-matter of the proceedings or from which claims are derived was committed in another Member State (Member State B) and consists in participation in the tort or delict (principal act) committed in the first Member State (Member State A)?’Last week, while this Kat was clearly looking in the other direction and missed it completely, the CJEU ruled thus:
'Article 5(3) ... must be interpreted as meaning that, where there are several supposed perpetrators of damage allegedly caused to rights of copyright protected in the Member State of the court seised, that provision does not allow jurisdiction to be established, on the basis of the causal event of the damage, of a court within whose jurisdiction the supposed perpetrator who is being sued did not act, but does allow the jurisdiction of that court to be established on the basis of the place where the alleged damage occurs, provided that the damage may occur within the jurisdiction of the court seised. If that is the case, the court has jurisdiction only to rule on the damage caused in the territory of the Member State to which it belongs'.Er, does that mean "yes" or "no", ponders Merpel.
Saturday, 12 April 2014
|Getting ready for an intense weekend of ... |
Of course, you will remember the Public Consultation on the Review of EU Copyright Rules [here], which the Commission launched back in December and closed on 5 March last.
Although the official numbers have not been published yet, this Kat saw on Twitter [disclaimer: not an official EU law & policy source (yet)] that the Consultation appears to have attracted 11,117 responses [Merpel wonders how many responses the Commission expected, since initially the Consultation was scheduled to remain open for just two months?].
A task-force of 15 zealous people is also rumoured to have dealt with them [this would mean that each person has taken care of over 740 responses: can that be true?]
The summary results should be published soon, even if it is most likely that when that time comes EU copyright enthusiasts will have already read and memorised all the available responses.
What's next anyway? As this Kat's favourite Commissioner, ie Michel Barnier, tweeted back in February, the Commission is planning to release a White Paper [this should be in June] aimed at identifying solutions to the problems emerged from the Consultation where and if problems exist.