Tuesday, 23 August 2016
Monday, 22 August 2016
This has been also the fate of the following excellent titles:
The much-awaited second edition of Concise European Copyright Law, edited by Thomas Dreier and Bernt Hugenholtz (Kluwer:2016)
Despite the pretty appearance and title that might induce you into thinking that this is just concise overview of EU copyright law, be reassured that it's not [and not just because the tome exceeds 700 pages].
I first encountered this book (at that time in its first edition) as a student. It was hiding on a library shelf, pressed in between much heavier [in every sense] and thicker copyright books. The fame of the editors prompted me to open and read it: the contributors' ability to analyse relevant EU copyright directives in an essential yet thorough fashion left me very much impressed, and made me realise once again how those who truly master a certain discipline are able to say everything in a way that makes you think that the relevant concepts are actually easy to grasp. The truth is instead that it is not concepts per se which are easy, but it is rather their own explanation which possesses the clarity that can follow a complete understanding.
The second edition has retained this distinctive quality, which makes it a pleasure to read and consult.
Bonus feature: In my own opinion, the commentary to the InfoSoc Directive (by Stefan Bechtold) is probably one of the most comprehensive and interesting ones currently available.
The Liability of Internet Intermediaries by Jaani Riordan (OUP:2016)
As the author observes in his preface, this is the first book dedicated to the doctrines and remedies which regulate the legal liability of internet intermediaries (or ISPs).
Developed out Riordan's doctoral dissertation at Oxford, this book will appeal to academics and practitioners alike.
Also thanks to its rational and clear structure, the author has succeeded in a fairly challenging task (that few so far have completed successfully), ie explaining the law of ISP liability by showing also a thorough understanding of the functioning and ongoing development of underlying technologies.
Following an inquiry into relevant legal principles, the book also offers specific insights into topical areas of the law, including - amongst others - data protection, copyright, and defamation.
A particularly interesting section is the one devoted to Member States' case law in the area of website blocking. This is a must-read chapter that - if nothing else - shows how fragmented the relevant and seemingly harmonised ISP liability framework [and relevant remedies against ISPs] remains within the EU.
Friday, 19 August 2016
In that connection, this Kat recently met an acquaintance, who has a long-time connection with the company. Over a cup of coffee, this Kat innocently asked: “So which HP company do you now work for. And who is running the company”? My acquaintance fumbled his response to both questions, before ultimately coming up with the correct answers. As Kat readers may be aware, the former Hewlett-Packard Company has split into two separate companies. The then existing company changed its name to HP Inc. and retained the company’s personal computer and legacy business (with its ticker remaining HPQ), while a new company was created, called Hewlett Packard Enterprise Co. (with its ticker symbol “HPE”) and consisting of four divisions—Enterprise Group, Services, and Software and Financial Services. In May 2016, it was announced that Hewlett Packard Enterprise would sell its Enterprise Services division to Computer Sciences Corporation. This transaction is to be completed by March 2017; in the meantime, it does not appear that a name has been chosen for this new company.
So what we have is that the existing company has discarded the name Hewlett-Packard Company in favor of HP Inc. (“HP” being a name and mark long associated with the company). The second company is called Hewlett Packard Enterprise Company. (Kat readers will carefully note that the hyphen between Hewlett and Packard has been discarded, and its full presentation, it also includes a logo in the outline form of a green rectangle.) The two companies still both roughly share the Hewlett-Packard nomenclature history.
Accenture, by some metrics the world’s largest consulting company. Accenture began as the business and technology division of the accounting firm Arthur Andersen and then became known as Andersen Consulting. Tension between the consulting and accounting practices led Andersen Consulting to change its name in 2001 to Accenture. In that same year, the Enron scandal broke, implicating Andersen Accounting and leading to its virtual demise. While the Andersen name will forever be associated with the Enron scandal, Accenture (no whiff of the word “Andersen” in its name) was recently recognized by Fortune magazine among the world’s most admired information technology services companies.
For sure, there may have been a bit of luck involved, since one of the terms of the arbitration award in the dispute between the two companies was that the latter could no longer use the Andersen name—leading to Accenture. But it also points to the risk in sharing a common name, when the two entities are separate and independent, and each goes off in its own business direction. One wonders how Andersen Consulting would have played out if it had retained the name Andersen as the accounting company was being dragged through the mud of Enron.
Regarding Hewlett Packard Enterprise (or HP or HPE or whatever), the issue is in no way connected to negative spill-overs, such as Enron, but rather what kind of corporate identities are being created. Truth be told, trying to keep straight the two companies by name and fields of activity is a constant challenge. One gets the sense that, at least for the moment, those concerned at the two companies seem to want a bit of confusion in their identities. Consider the following, which appears on the Hewlett Packard Enterprise website--
“Hewlett Packard has been in the innovation business for more than 75 years. Our vast intellectual property portfolio and global research and development capabilities are part of an innovation roadmap designed to help organizations of all sizes – from global enterprises to local startups – transition from traditional technology platforms to the IT systems of the future.”Even after the split, what seems most important is that the two companies both continue to recall their common Hewlett Packard heritage, in haec verba. Whether this is an effective naming strategy in the longer term will remain to be seen.
'Tell JK I'm still rolling, tell Russell I'm a brand'. Becoming a global brand isn't as easy as Tine Tempah makes it sound - in this article, Neil Wilkof considers the difficulties Uber and Netflix have faced in their efforts to expand into new territories.
Are companies allowed to tweet about #Rio2016?
Katfriend Oliver Löffel (Löffel Abrar) analyses the legal perils of tweeting using the hashtag #Rio2016 and explores how the position varies in different territories.
Compulsory collective management of copyright for images displayed by search engines: a French cultural exception to EU law
Katfriend Olivia Klimis and Nicolas Lescot (De Gaulle Fleurance & Associés) take a look at new provisions in the French Intellectual Property Code (IPC) that regulate the publication of a plastic, graphic or photographic work by an online communication service. Do the new provisions comply with EU law? The post picks up where Eleonora Rosati left off in her post on the 2012 French legislation that allows and regulates the digital exploitation of out-of-print 20th century books
BREAKING: Puns at the ready, Mr Justice Birss delivers epic CIALIS judgment
At an eye watering 113 pages consisting of 491 paragraphs, Justice Birss's decision in Actavis v ICOS  EWHC 1955 is recommended beach reading for those ready to jet off the south of France for their August holidays.
Norwegian Supreme Court: no "retransmission" without "transmission"
The Supreme Court of Norway has ruled that a TV cable distributor was not retransmitting broadcasts when it received content via an encrypted fibre connection and proceeded to broadcast it to the public. Ellie Wilson brings you the story.
CJEU: "Flat-rate" reimbursement for legal fees must cover a significant part of the costs incurred by the successful party
In Case C-57/15 United Video Properties, the CJEU held that while Article 14 Enforcement Directive does not prohibit flat-rate reimbursement of legal costs per se, it sets limits on how Member States can set the flat-rate. Namely, the costs to be reimbursed by the unsuccessful party must be "proportionate", which means that they must cover "at the very least, a significant and appropriate part of the reasonable costs actually incurred by the successful party". Mark Schweizer explores how this ties in with the UPC's proposed ceilings on recoverable costs.
Gathering evidence in patent proceedings? EPLAW's Europe/Japan mock trials may be what you need
Wednesday, 17 August 2016
Two recent developments in U.S. patent law mean mixed news for the bio-pharmaceutical industry. First, the bad news -- the U.S. Supreme Court declined to accept for review the closely-watched Ariosa Diagnostics v. Sequenom case concerning the patentability of a diagnostic method. Second, the good news -- a panel of the U.S. Court of Appeals for the Federal Circuit issued the Rapid Litigation Management v. Cellz Direct decision further clarifying application of the two-step Alice/Mayo test (1. claim directed to a patent ineligible category and 2. lack of inventive concept) concerning laws of nature.
|Diagnosis? Too many dumplings.|
In Ariosa Diagnostics v. Sequenom, a three-judge panel of the Federal Circuit found that Sequenom's diagnostic patent was patent ineligible. This was despite the fact that the discovery made by Sequenom was very beneficial to patients and apparently against previous wisdom concerning the utility of the material used in the diagnostic. Moreover, the patentee asserted that the natural phenomenon/law of nature was not preempted by the claimed invention. Notably, Sequenom requested an en banc rehearing, but was denied by the Federal Circuit. Interestingly, Judge Dyk wrote a concurrence essentially expressing concern that the Mayo case's sweeping test prohibiting the patenting of diagnostics would result in insufficient incentives for the invention of diagnostics. Importantly, Judge Dyk set forth a way to distinguish and apply Mayo that would allow for some diagnostics to survive the Alice/Mayo test. However, Judge Dyk signaled to the Supreme Court that it should take the case. Unfortunately, the Supreme Court did not accept the invitation to hear the closely watched case.
|Alice/Mayo back to the Vet!|
In Rapid Litigation Management v. Cellzdirect, a three-judge panel of the Federal Circuit found that claims directed to a method to preserve liver cells were patent eligible. The Federal Circuit further clarified the application of the Alice/Mayo test in the context of laws of nature/natural phenomenon. As in the Enfish case, the Federal Circuit focused on the first prong of the Alice/Mayo test by finding that the claimed invention was not "directed to" a patent ineligible concept--the discovery that certain liver cells can survive multiple freeze/thaw cycles. While the discovery was certainly made by the inventors, the patent claimed a "new and useful laboratory technique for preserving" those cells "for later use." This approach seems to track part of Judge Dyk's analysis in his concurrence to deny en banc review of the Sequenom case. The Federal Circuit further found that the second prong--inventive concept--was also satisfied to find patent eligible subject matter. Notably, even though the additional steps were well-known, a method to preserve the cells was not known or present in the prior art. An instruction to apply a known step a second time in the claims is essentially an inventive concept if prior art directed not to apply the known step again.
A press release issued by Sequenom notes that it has "equivalent" claims in enforceable and valid patents in other jurisdictions, including Europe, Japan and Australia. It also states it is enforcing those patents in some jurisdictions. From the perspective of global innovation, will there be less innovation in diagnostics if the Federal Circuit does not continue to "clarify" the U.S. Supreme Court's approach?
15. The Defendants' third argument was that even if an account of profits is a non money claim, the claim includes a money claim (damages) as an alternative, so that fee 1.1 is payable. I agree with Hildyard J that the Fees Order is not easy to construe, and the logic operating in the distinctions contained in it can be difficult to discern. I also agree with the claimant's counsel that it would be anomalous if a claimant with sufficiently early information about the defendant's activities to enable it to elect for an account of profits in its claim form could pay only the fee 1.5, but a defendant without that information must pay the higher fee. Further, the two forms of relief are not mere alternatives, but are mutually exclusive; and it is not until a claimant elects for an inquiry (which it may not do) that it can be said that its claim is to recover money
16. If, therefore, this claim had been only for trade mark infringement, then I would have held that the appropriate fee had been paid.
|Is it autumn yet?|
EUIPO - Research on Online Business Models. The EUIPO has recently published new research into the business models used for online infringement of IP rights. The report, which contains some helpful visuals for explaining the impacts of infringements and analyses 25 distinct business model canvasses, can be viewed here.
EPO Online Services Workshops. A series of workshops introducing the new online filing service at the EPO will be held in London on 13-14 September, 18-19 October and 29-30 November. The workshops are aimed primarily at Online Filing users, professional representatives and support staff/records department staff who are familiar with the basic functions of Online Filing. For more information and to register, see here.
UNION-IP has just informed the IPKat that "Dr Bobby Mukherjee, chief IP Counsel at BAE Systems and former President of IP Federation, will be speaking at the next UNION-IP dinner meeting on 20 September 2016 at the Royal Overseas League. Bobby will address us on “IP in the Post-Referendum World: An Industry Perspective”. With his strong understanding of the industry perspective, personal involvement in policy making and close links with international organisations, Bobby is brilliantly placed to keep us up to date on where IP stands in the current, and somewhat unexpected, period of change". The details are in the attached flier and link to book is here.
Don't forget to check our events page for more like this.
It is a somewhat controversial aspect of trademarks, but common words can be the subject of trade mark applications when they acquire a distinctive link to a company through "use or association" - should the application be granted, Specsavers will Probably [registered by Carling in relation to beer and alcohol products] be lovin' it [trademarked by McDonald's] ...
For more perspective on this story, see here.
Tuesday, 16 August 2016
|Mr Justice Gerard Hogan, |
who delivered the Court of Appeal judgment
|GRS explained: |
(1) User engaging
in copyright-infringing activities
|(2) The innocent ISP|
|(3) The notifications|
|(4) Patience has reached its limits|