For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Thursday, 30 April 2009

Don't change European software patent rules, say CIPA

A press release from the Chartered Institute of Patent Attorneys (CIPA) in the UK today affirms its position on computer software patents in the light of the European Patent Office's Enlarge Board referral in Case G3/08 (see earlier post here). The deadline for submitting amicus briefs is today. Says CIPA:

"... the Chartered Institute of Patent Attorneys has urged the EPO’s Enlarged Board of Appeal to reject calls to make radical changes to the rules on patenting computer programs. Changes to established practice would cause the kind of confusion that exists in the USA ...

Chairman of CIPA’s Computer Technology Committee, Simon Davies, says that any major changes to the established practice “would create confusion in the computer industry throughout Europe.” [Quite true -- but failure to change current practice appears to have created a present state of confusion too. Which is better? Our current, known, confusion, or future unknown confusion?]

“Although computer programs as such are not inventions, under EPO rules,” Davies explains, “this does not necessarily exclude patent protection for an inventive product or process which is implemented by a computer program. Over many years, the EPO Boards of Appeal have developed a carefully formulated approach in which patents are granted for a technical solution to a technical problem. This has now become well-established practice before the EPO in general.” [Is it agreed that the formula is one which is susceptible of reliably consistent application to any given set of facts? Does it need (i) to be left completely alone, (ii) to be gently fine-tuned or (iii) to be supplemented with further clarificatory guidance?]

According to CIPA, the situation at the EPO is in stark contrast with difficulties in the USA. For example, the State Street Bank decision from the US Court of Appeals for the Federal Circuit caused a big increase in the range of subject matter for which a patent could be obtained. However, the recent Bilski decision from the same court represents a potentially significant contraction. These two decisions have left US patent law in a state of great uncertainty [This may be true -- though some US patent experts disagree -- but it doesn't really address the problems in Europe].

There have also been problems in the UK, where the Intellectual Property Office has issued four different Practice Notices relating to computer-implemented inventions in the last five years. CIPA is not in favour of such frequent changes, as patents have a lifetime of up to twenty years. [Is there something missing here? It looks as though perhaps CIPA would be more in favour of frequent changes if the maximum patent term were different]

CIPA’s submission to the EPO states that ‘the current approach provides a sensibly balanced and legally coherent treatment of excluded subject matter that benefits both applicants and third parties. This approach should continue.’
The IPKat appreciates the need to limit change in the interests of stability and predictability, particularly when each change is followed by an empirical stage in which patent applicants and litigants have to pay for the privilege of finding out what those changes mean in practice. But Merpel wonders whether the crucial criterion is not that of either stability or predictability, but of whether the present system works so well that no change is justified in terms of functional utility.

"If it aint broke(n), don't fix it" here and here

PAGO: is Austria "substantial"?

This morning in the Court of Justice of the European Communities Advocate General Eleanor Sharpston QC delivered her Opinion in Case C‑301/07 PAGO International GmbH v Tirol Milch registrierte Genossenschaft mbH, this being a reference for a preliminary ruling from the Oberster Gerichtshof, Austria.  PAGO owns a Community trade mark for, inter alia, fruit drinks and fruit juices. This mark includes a representation of a green glass bottle which Pago had used for a number of years in marketing, plus a distinctive label and cap next to a full glass of fruit drink identified in large characters, known as ‘PAGO’. sold in Austria a fruit and whey drink called ‘Lattella’, packaged in glass bottles the design of which resembled in several respects (shape, colour, label, cap) that depicted in Pago’s Community trade mark. In the advertising for its drink Tirol Milch used a representation which, like Pago’s Community trade mark, shows a bottle next to a full glass. 


It was accepted that there was no likelihood of confusion, since the bottle labels bore the names ‘Pago’ and ‘Latella’ respectively, both being widely known in Austria; the parties proceeded on the basis that the conditions of Article 9(1)(c) of Community Trade Mark Regulation 40/94 (infringement of "any sign which is identical with or similar to the Community trade mark in relation to goods or services which are not similar to those for which the Community trade mark is registered, where the latter has a reputation in the Community and where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the Community trade mark") had been met in that (i) Tirol's sign was similar or identical to that for which Pago owned the Community trade mark, and (ii) the drink marketed by Tirol was not considered to be similar to that marketed by Pago.

Pago sought an injunction before the Commercial Court, Vienna, to stop Tirol infringing its trade mark by (i) promoting, offering for sale, marketing or otherwise using its drink in the bottles at issue, and (ii) advertising a representation of the bottles together with a full glass. That court granted the injunction but its decision was reversed by the Higher Regional Court, Vienna. Pago then appealed to the Oberster Gerichtshof, which referred the following questions for a preliminary ruling:
‘(1) Is a Community trade mark protected in the whole of the Community as a “trade mark with a reputation” for the purposes of Article 9(1)(c) of the Regulation if it has a “reputation” only in one Member State?

(2) If the answer to the first question is in the negative: is a mark which has a “reputation” only in one Member State protected in that Member State under Article 9(1)(c) of the Regulation, so that a prohibition limited to that Member State may be issued?’
The recommendation of the Advocate General is should be answered as follows:
"(1) A Community trade mark is protected in the whole of the Community on the ground that it has a ‘reputation in the Community’ within the meaning of Article 9(1)(c) ...  if it has a reputation in a substantial part of the Community. What constitutes a substantial part of the Community for that purpose is not dependent on national boundaries but must be determined by an assessment of all the relevant circumstances of the case, taking account, in particular, of (i) the public concerned by the products or services covered by the trade mark and the proportion of that public which knows of the mark and (ii) the importance of the area in which the reputation exists, as defined by factors such as its geographical extent, population and economic significance.

(2) A Community trade mark which has a reputation in an area which is not a substantial part of the Community in that sense does not enjoy, under Article 9(1)(c) of Regulation No 40/94, protection limited to that area. Consequently, a prohibition against infringement limited to that area may not be issued".
Of note is the Advocate General's review of the Court's earlier jurisprudence in General Motors and Nieto Nuño:
"30. It is first necessary to establish whether the trade mark has a ‘reputation’. In order to do so, the national court must identify the public concerned by the trade mark in the context of the Community as a whole, without regard to Member States’ borders. Having identified the relevant public, the national court should proceed to determine whether the reputation exists amongst a significant part of the public concerned by the goods or services covered by the trade mark.

31. The national court must then determine whether the trade mark has a reputation ‘in the Community’. It should begin by accepting that the trade mark proprietor need not demonstrate that the trade mark has a reputation throughout the Community. It is sufficient, for Article 9(1)(c) to apply, if the trade mark has a reputation in a ‘substantial part’ of the Community. General Motors does not provide further guidance as to how a ‘substantial part’ of the relevant territory is to be construed.

32. The Court’s case-law does, however, indicate what is not a ‘substantial part’. In Nieto Nuño it was established in relation to the kindred concept of whether a trade mark is ‘well known’ under Article 4(2)(d) of the Directive that the city of Tarragona and its surrounding area within Spain is not a substantial part of that Member State. Applying the same reasoning by analogy to the concept of a ‘substantial part of the Community’, it follows that where the ‘part’ is, viewed objectively by reference to its size and economic weight, paltry in comparison with the Community as a whole and where the relevant public is more widely spread throughout the Community, that part cannot be deemed to constitute a ‘substantial part’ of the Community. That conclusion follows from the ordinary meaning of the term ‘substantial’. It also accords with common sense.

33. The scenarios that may be envisaged are many and various. At one end of the spectrum, a trade mark covering a generic product marketed to the general public which enjoyed a significant reputation amongst that public would be expected to be known throughout a wide geographical area before it could be said to enjoy a ‘reputation in the Community’. At the other extreme, a trade mark for a particular product marketed to a specialised regional public would be expected to be known over a much smaller area. A product that is marketed to a professional public might well cover a wide area (depending on how widespread membership of that profession was) but would probably be known to a smaller number of people, in absolute terms, than a product marketed to the general public.

34. As with the concept of relevant public, the territorial aspect of ‘reputation’ cannot be defined by reference to an abstract figure or a particular number of Member States. The national court will have to evaluate a number of factors to determine whether a particular trade mark enjoys a reputation in a substantial part of the Community. Such factors will include, but not be limited to, the economic significance of the territory within the Community, the geographical extent of the area where the trade mark has a reputation and the demographics of the public concerned.

35. In order to determine whether an earlier trade mark enjoys a reputation in a substantial part of the Community for the purposes of Article 9(1)(c) of the Regulation, the national court must therefore make an overall assessment of the case in conjunction with establishing the public amongst whom that earlier trade mark is known. Any such test must necessarily be flexible".
The IPKat doesn't feel there's anything hugely controversial here. It's simply a reminder to make overall assessments that don't obviously clash with ECJ case law. Merpel says, this is what I've been waiting for -- an appraisal of "substantial part of the Community" that looks at reality instead of national boundaries. On this basis, Luxembourg on its own stands little chance of being a "substantial part" ...

Early comment here from Fabio Angelini ("Catch Us If You Can !!!") here

Wednesday, 29 April 2009

G 3/08 Observations - Your Last Chance

If you want to have your say about whether patents for computer-implemented inventions are a good thing or not, it's time to get your skates on.  The final date for filing observations (or amicus curiae briefs, if you prefer) on the EPO President's referral to the Enlarged Board of Appeal is 30 April 2009.  See the IPKat's previous notes on the subject here, here, here and here for more details, and the EPO website here for the official lowdown.


As of the date and time of this post, the following observations have been filed:
  • Bakels, R. (PDF, 1.9 MB)
  • Balos, I. (PDF, 360 KB)
  • Bayer, C. (PDF, 270 KB)
  • BIKT et al (PDF, 4 MB)
  • Combeau, J. (PDF, 630 KB)
  • Cowsley, C. (PDF, 230 KB)
  • De Keyzer (PDF, 84 KB)
  • Duhme,Torsten, Dr. (PDF, 1 MB)   
  • epi (PDF, 280 KB)
  • Gustavson, Stefan (PDF, 220 KB) 
  • Hallén, Jacob (PDF, 225 KB)
  • HISPALINUX (PDF, 460 KB)
  • IBM (PDF, 970 KB)
  • intellect (PDF, 585 KB)
  • Lawrence, William (PDF, 915 KB)
  • Philips (PDF, 390 KB)
  • Piratenpartei (PDF, 400 KB)
  • Piratpartiet (PDF, 160 KB)
  • ScriptumLibre (PDF, 410 KB)
  • Sterckx, Sigrid, Prof. Dr. (PDF, 2.7 MB)
  • Straus, Joseph, Prof. Dr. (PDF, 1.2 MB)
  • Sylvestris, T. (PDF, 525 KB)
  • Thum, Simon (PDF, 170 KB)
  • Wessel, A. (PDF, 81 KB)

  • Of these, some are very interesting, some are fairly pedestrian, some are horribly wordy and full of legal 'analysis', footnotes and references, some are fairly predictable ill-informed anti-patent rants, while others are merely irrelevant.  The IPKat (who still can't see what on Earth TRIPs has to do with the EPO) will let his readers decide which are which.

    One brief in particular, submitted by the IPKat's maverick sidekick Tufty Sylvestris (a.k.a. Tufty the Cat), argues that the referral is inadmissible because it does not comply with Article 112(1)(b) EPC.  This view, although in a small minority, appears to be shared by at least one other observer.  The IPKat prefers to remain on the fence, largely due to being completely bamboozled by all that legalspeak.  He hopes, however, that the Enlarged Board, whichever way they decide to go, will come up with some reasoning that we can all understand, instead of trying to impress us with their footnoting skills.  

    More legalspeak here. Doublespeak here.

    Wednesday wonders

    So many people have been emailing the IPKat about The Pirate Bay (see earlier posts here and here), either to inform him that the English translation is now available or to ask him what the bit about the drugs is all about, that he has been prodded into action.

    Right: the IPKat listens to the translation from Swedish into his own native tongue via Meowlingual

    The English translation is available from the IFPI website here. Hugo Cox (of instant 1709 Blog fame) got his message about it in first, but the IPKat's friend Geeklawyer -- who came a close second -- both emailed him the link and tweeted it in his alter ego as @geeklawyer. Thanks to you both!


    Here are a few answers to FAQs about how the IPKat goes about his work, for the benefit of readers who often email him to ask. (i) The illustrations come from many sources -- readers' cat pics, illustrations in court judgments, Creative Commons and free-to-use art, public domain materials as well as items retrieved via an image search and which are used under "fair use" provisions as understood in the UK; (ii) News items come from many sources too. Apart from those he finds himself, stories arrive via readers' links, "inside stories", press releases and even Twitter; (iii) The IPKat prefers readers to post their comments as comments, rather than to write to him personally. This saves exchanges of correspondence as to whether the person

    Left: if he is not to become extinct like the Tasmanian Tiger, the IPKat needs to become a protected species ...

    commenting intends the Kats to share his information and as to whether the informant prefers anonymity or is happy to be attributed; (iv) The IPKat is happy to list forthcoming events and currently does so without any charge -- but it helps him greatly if whoever organises the event prepares a short summary that can easily be posted in the side bar rather than wait for him to read through a lengthy brochure in search of web addresses and contact details. Oh, and if a venue, a date or a weblink changes, please tell the Kat. He doesn't check each link daily to make sure it's in perfect working order and time spent in answering readers' queries about broken links etc is time taken away from regular blogging activities. Thanks for taking the time to read this ...


    News of the Google Book Search plan to (i) emancipate the printed word from the shackles of obsolescent print and archaic information management practices or (ii) to mop up every item of print and monopolise it for a huge profit -- depending on your standpoint -- is coming thick and fast.

    Right: no lover of Book Search, Fidel ("Puss in Books") prefers to visit real libraries. News item from BBC, hat-tip to Hector MacQueen

    After yesterday's announcement that a New York Court had agreed that authors and copyright owners should have a further four months in which to opt into the scheme or reject it (see note here), it now seems that the US Justice Department has decided to investigate possible antitrust concerns (see bigmouthmedia here) raised by Google's agreement with the Authors Guild, the Association of American Publishers and sundry other parties. The IPKat will be watching with interest.

    IP licences "not contracts for the provision of services", rules ECJ

    The IPKat would have missed reporting on Case C‑533/07 Falco Privatstiftung and Thomas Rabitsch v Gisela Weller-Lindhorst if it had not been for a timely nudge from Daan de Lange (Brinkhof). Although this ruling of the Court of Justice of the European Communities, on a reference from the Oberster Gerichtshof (Austria), has IP at its core, it was cunningly camouflaged on the Curia website as a decision in the "Area of Freedom, Security and Justice".

    What was this case about? In proceedings initiated in Austria, the body which administered the copyright of the late Austrian rock and rap star Falco, and Rabitch (F&R), sought from Weller-Lindhorst (WL), who was domiciled in Germany, the payment of royalties, calculated by reference to (i) the partly-known amount of sales of video recordings of a concert, (ii) an account of all sales of video and audio recordings and (iii) payment of the supplementary royalties. As to the video recordings, F&R's claim was based on the tems of a contract; the claim regarding the audio recordings was founded in copyright infringement.

    The Commercial Court, Vienna, held that it had jurisdiction to rule on the copyright infringement claims, under Article 5(3) of Regulation 44/2001 on jurisdiction etc in civil and commercial matters. The court added that, given the close link between the rights relied on, its jurisdiction also covered the fees owed for the video recordings under the contract, a finding against which WL appealed. On appeal, the Higher Regional Court, Vienna, held that Article 5(3) of Regulation 44/2001, which covered torts such as copyright infringement, was not applicable to contractual rights, nor was the second indent of Article 5(1)(b) applicable, since the contract in question -- being a copyright licence -- was not a contract for the provision of services within the meaning of that provision.

    An appeal on a point of law was then made to the Oberster Gerichtshof concerning only the contract claims in relation to the distribution of the video recordings. That court stayed the proceedings and referred the following questions to the Court for a preliminary ruling:

    "1. Is a contract under which the owner of an intellectual property right grants the other contracting party the right to use that right (a licence agreement) a contract regarding “the provision of services” within the meaning of Article 5(1)(b) of [Regulation No 44/2001]?

    2. If Question 1 is answered in the affirmative:

    (a) Is the service provided at each place in a Member State where use of the right is allowed under the contract and also actually occurs?

    (b) Or is the service provided where the licensor is domiciled or at the place of the licensor’s central administration?

    (c) If Question 2(a) or Question 2(b) is answered in the affirmative, does the court which has jurisdiction also have the power to rule on royalties which result from use of the right in another Member State or in a third country?

    3. If Question 1 or Questions 2(a) and 2(b) are answered in the negative: is jurisdiction as regards payment of royalties under Article 5(1)(a) and (c) of [Regulation No 44/2001] still to be determined in accordance with the principles which result from the case-law of the Court of Justice on Article 5(1) of the [Brussels Convention]?".
    Last Thursday the Court of Justice issued its answers:
    "1. The second indent of Article 5(1)(b) of Council Regulation ... 44/2001 ... is to be interpreted to the effect that a contract under which the owner of an intellectual property right grants its contractual partner the right to use that right in return for remuneration is not a contract for the provision of services within the meaning of that provision.

    2. In order to determine, under Article 5(1)(a) of Regulation No 44/2001, the court having jurisdiction over an application for remuneration owed pursuant to a contract under which the owner of an intellectual property right grants to its contractual partner the right to use that right, reference must continue to be made to the principles which result from the case-law of the Court of Justice on Article 5(1) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, as amended by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic".
    The IPKat says there's nothing shocking about this decision. It's pretty much a matter of "business as usual". The interesting question, though, arises where a contract is both an intellectual property licence and a contract for the provision of services, such as a combined patent, know-how and technical consultancy package, since it would usually be undesirable for a court in one country to be able to exercise jurisdiction over some of the content of the agreement while a court in another country took jurisdiction to deal with other aspects of it.

    Merpel notes that this is another "swiftie". The reference for a ruling was made in November 2007 and the Advocate General's Opinion was issued this January, making just 17 months from start to finish: well done! It's a shame this dispute has taken so long to get this far though -- the original concert that led to the litigation took place in 1993.

    More on Falco here and here
    Rock me Amadeus here

    Tuesday, 28 April 2009

    At last, the 1709 Blog ...

    Going public at this very moment is The 1709 Blog. 1709 was the year in which, according to at least some opinions, the Statute of Anne 'invented' statutory copyright. This blog proposes to celebrate copyright law in all its glory and with all its little foibles. The team is led by seasoned copyright, media and entertainment specialist John Enser, with support from this year's guest bloggers Ben Challis (Music Law Updates/Glastonbury Festival), Hugo Cox (Penguin) and Amanda Harcourt (Entertainment Rights Management Ltd), and with the assistance of consultant blogmeister Jeremy Phillips.

    Monday, 27 April 2009

    Malicious falsehood case

    The IPKat has read with interest Ajinomoto Sweeteners Europe v Asda, a malicious falsehood case.

    Ajinomoto is the manufacturer of the artificial sweetener, aspartame. The supermarket, Asda, commenced a campaign which was designed to ensure that, by the end of 2007, none of its 9,000 own-label food and soft-drinks products would contain any artificial colours or flavours or any hydrogenated fat or flavour enhancers. The catch-phrase used was 'NO HIDDEN NASTIES'. One of the statements used in conjunction with the catch-phrase was "No artificial colours or flavours and no aspartame" and "We promise that all good for you products are always low or lower in fat and won't ever contain any hydrogenated fat, artificial flavours, artificial colours or aspartame."

    Ajinomoto alleged that the natural and ordinary meaning of the words on the packaging is that aspartame is an especially harmful or unhealthy, or potentially harmful or unhealthy, sweetener and is one which consumers concerned for their own health and that of their families would do well to avoid, either altogether or in the quantities likely to be found in soft drinks and other food products.

    In the recent decision, Sir Charles Gray had to decide whether to grant Ajimoto's request for a trial of the preliminary issue "as to the statement(s) of fact contained in or conveyed by the words complained of in paragraphs 4 and 8 of the Particulars of Claim". The alternative would be to hold a single trial incorporating (i) the meaning of the statement; (ii) whether the statement was false and (iii) whether the statement was malicious.

    The judge held that in the interests of saving costs, it was right for the preliminary issue to be tried first. If Ajimoto's contention that the meaning of Asda's statements were that aspartame was harmful was rejected then there would be no issue as to falsity, and malice would not be relevant. The judge accepted that the issue of meaning was essentially a "slam dunk" point. Separating the issue of meaning out into a preliminary trial was commonly used in defamation actions and would work here. However, the judge did suggest that the approach might be considered an abuse if it was used as a tactic to 'slice up' the action into three separate trials of meaning, falsity and malice.

    The IPKat is all in favour of efficiency and saving costs (except when it comes to kitty treats) and thinks that this looks like a sensible decison.

    The EPC "Ten Day Rule" - how not to use it

    The IPKat thanks Darren Smyth for informing him of an unusual EPO Technical Board of Appeal decision.  This decision relates to a very esoteric corner of the European Patent Convention, but one that all European patent attorneys have to be careful to get just right, because the consequences of failure can be catastrophic. 


    Guiding a patent application through the procedures laid down by the EPC can be a tricky business, and is very frequently dependent on performing certain things within specified timescales.  Some of these deadlines are, if missed, more fatal than others.  One fatal deadline is that for filing an appeal against a decision of the EPO.  According to Article 108, this must be done within 2 months of notification of the decision.  

    All European patent attorneys know that there is a special 'grace period' of 10 days that, in most cases, applies to these deadlines (although they sometimes don't like to tell their clients this).  This is available under Rule 126(2), which states that communications are deemed to be notified 10 days from posting.  The specified period therefore runs from the end of this 10 days.  Calculating the correct date on which something must be done by is, naturally, an essential feature of being able to pass paper D of the European qualifying examinations.  

    It may therefore surprise some of the IPKat's readers that the decision in question, T 2056/08, results from what appears to be a misunderstanding of the EPC by an applicant's European representative.  The decision related to an application that was refused by the EPO, the examining division notifying the representative of this in a letter dated 21 July 2008.  Applying the 10 day rule and the 2 month period under Article 108, the final date for filing a notice of appeal, and paying the appeal fee, was then Tuesday 30 September 2008 (because periods in months are calculated to the end of the month: Rule 131(4)).  The representative, however, believed that this date was 1 October 2008 instead, which they obtained by adding 10 days on to 21 September 2008.  This resulted in the EPO finding that the appeal was not filed in due time.

    Surprisingly, the representative disagreed, arguing that the EPO had got it wrong.  Unsurprisingly, the Board of Appeal decided that the EPO had got it right, and summed things up as follows:
    "Although it has become customary to refer to the appeal period as "two months plus ten days", this case shows that this is an inexact formula. The ten days are not added on after the two months period, or are calculated arbitrarily from the date of the decision or from a date two months thereafter. Rather, the ten days specify a period after which delivery and therefore notification is presumed, and the two months period stipulated in Article 108 EPC starts from the day of the presumed (if delivery has taken place within the ten days period) or actual (if delivery has been effected after the ten days period) notification. Thus, if any rule of thumb could be suggested to calculate the appeal period, it should be "ten days plus two months" rather than, as was argued by the applicant, "two months plus ten days"." (reasons, point 4)
    Rather than indulging in any schadenfreude, the IPKat merely notes that there are only two people having a residence or place of business in the country in question who have passed the EQEs, and the representative in this case is apparently not one of them.  For more details, see the IPKat's previous post here.

    Ten Days that Shook the World here and here

    Monday medley

    The IPKat is pleased to lend a helping hand to Luca Escoffier. An occasional blogger (Nanomedicine and IP) and a visiting scholar at the University of Washington School of Law, Luca is now in the process of accumulating data for his thesis on nanomedicine patents. This questionnaire addresses both the patenting and the evaluation of nanotech innovations, with a specific focus on medical applications.  Anyone who would like to complete the questionnaire can find the online version here and here.  He adds:

    "The second part of the questionnaire is fundamental (i.e. question 10) as it is where the authorization to use your answers is required".
    For further info you can contact Luca by email here.


    Last week the IPKat reported on UK Minister for Innovation David Lammy's World Intellectual Property Day speech (he has since received a governmental email to say that this post was "well received" and is now wondering which well it was received in ...). Here, thanks to the Men from the Ministry, is the text.  


    Here's a list of the world's top 25 innovative countries, ("A new ranking of the world’s most innovative countries: an Economist Intelligence Unit report", sponsored by Cisco.  Two of the top five are Scandinavian (three of the five are European) and, if statistics can debunk national stereotypes, Ireland is ranked higher than Hong Kong.  Any suggestions as to what all these countries have in common? Post your comments below.


    If you are a subscriber to Sweet & Maxwell's loose-leaf European Patent Decisions (click here for details), authored by Florian Leverve and Noam Shemtov, you might like to know that Release 29 has just been issued, updating the work to February 2009.


    The Intellectual Property Institute has informed the IPKat that, at Dev Gangjee's forthcoming seminar on "Trade Mark Dilution: Bringing Blurring into Focus" on 13 May, readers of this weblog are welcome to attend at the reduced rate of £30 to which the IPI's own members are entitled.  Full details and booking form can be found here. The IPKat warns: the venue is the rather lovely offices of Shepherd & Wedderburn, St Paul's Churchyard. If you haven't been there before, leave a few extra minutes getting-lost time.

    Friday, 24 April 2009

    Friday favourites

    Fancy a change of scene? Why not check out the Forthcoming Events column on the IPKat's side bar? If an event is FREE, he's listing it in blue. The Kat is also listing things that aren't formal events, but which are just plain interesting: these are in green. IPKat-supported events are red. If there's a discount, it's in this colour.


    Bye, bye Butterworths? Not quite ...  According well-informed sources close to Chancery Lane, from tomorrow the company currently known by the somewhat unlovely and cumbersome name LexisNexis Butterworths (LNB) will be renamed LexisLibrary.  According to LNB's e-burst email circular, the re-naming is part of the launch of Lexis Legal Intelligence; the change "will have no impact on the functionality of the service, your usernames, passwords or the login page".  This move is "part of the consistent naming structure for core components of the new Lexis Legal Intelligence offering that was launched earlier this month". However,

    "LexisNexis continues to be committed to the Butterworths brand, which during its long history has come to stand for authoritative, comprehensive and expert legal commentary ..." [Adds Merpel, not to mention poverty if you buy them, fear of missing something if you don't, enlarged appendices and a heightened hernia risk if you try to lift the darned things].

    The IPKat's friend Karla Hughes is currently doing some research at Fordham University under the supervision of Professor Hugh Hansen (left) on the subject of Community design law.  To this end she has prepared a short (8 question) questionnaire to identify the extent to which practitioners actually come into contact with design issues. This questionnaire is currently hosted here on Class 46, the European trade mark blog.  If you'd like to help Karla by completing the questionnaire, she'd be quite thrilled.  You can also thrill the design-consious Merpel by telling her behind which designer shades Professor Hansen is preserving his cool ...(please post your answers below: no prize except the satisfaction of being right!)


    Now for a little news from around the blogs (you might choke on what you read on them, but at least they don't occupy any shelf space):

    * Congratulations to The SPC Blog, which continues to gain momentum despite its astonishingly niche subject-matter (supplementary protection certificates and term extension for certain pharmaceutical, paediatric and agrichemical patents). The SPC Blog's email subscriber list now stands at a remarkable 402 readers, having passed the magic quatrocentenery overnight.

    * Also going in the right direction, though rather more discreetly, is Datonomy, the data protection weblog which has now notched up its 100th email subscriber.  Datonomy is gearing itself up for wider European coverage, having added Berlin-based Karen Sokoll and Christoph Enaux to the team as well as Simon Bernholt.

    Posthumous pleasure for performers


    In case you missed it, the European Parliament website yesterday published this item (thanks, Hugo Cox, for forwarding the link):

    "Music copyright to be extended to 70 years for performers

    Copyright term for music recordings must be extended from 50 years to 70 years, says legislation adopted on Thursday by the European Parliament. By adopting the report by Brian Crowley (IE, UEN) with 377 votes in favour, 178 against and 37 abstentions, MEPs voted to increase the term of copyright protection to ensure that performers continue to receive royalties for 70 years from the first publication or performance of their song.

    The European Commission had previously proposed an extension of the copyright protection up to 95 years. According to Mr Crowley, the compromise reached by the Parliament on 70 years takes into account Council's resistance and would facilitate an agreement with national governments [this remains to be seen ...].

    A fund for session musicians

    The increased copyright protection would also benefit producers, thanks to additional revenues deriving from the extension.

    A dedicated fund for session musicians was also supported by the Parliament. This fund would be financed by contributions from producers, who would be obliged to set aside for this purpose, at least once a year, at least 20% of the revenues gained from the proposed extension of copyright term [this should make a bit of work for the accountants, too, particularly where revenue results from compilations containing works in which there is  (i) regular copyright, (ii) extended copyright and (iii) no copyright]. This fund will reward those session musicians who gave up their rights when signing the contract for their performance.

    MEPs amend a provision relating to this fund so as to give collecting societies, which represent performers' and producers' interests, the right to administer the annual supplementary remuneration.

    "Clean slate" clause to ensure extension benefits performers

    To ensure that performers fully enjoy the additional royalties deriving from copyright extension, MEPs amend the original text so as to prevent the use of previous contractual agreements to deduct money from the additional royalties [retrospective deprivation of contractual and proprietary entitlements? Call for the European Convention on Human Rights!].

    Possibility to renegotiate contracts

    An amendment approved by MEPs allows performers to renegotiate the contracts concluded before the entry into force of this legislation, 50 years after the first publication of their recording.

    Copyright extension for audiovisual works, too?

    The Parliament also asks the Commission to launch an impact assessment of the situation in the European audiovisual sector by January 2010, with a view to deciding whether a similar copyright extension would benefit the audiovisual world [depends what you mean by "benefit the audiovisual world", the IPKat supposes. There does not appear to be an obvious consensus within that world as to what will be of benefit to it].

    "Use it or lose it" clause

    According to the approved legislation, if producers, 50 years after the publication of a phonogram, do not make it available to the public [does this mean "continue to make it available? If it's been published, it has presumably been made available], performers can ask to terminate the contract they signed to transfer their rights to the label.

    The producer has one year to make the recording available to the public, failing this his rights will expire.

    Review legislation after three years

    Finally, MEPs ask the Commission to submit three years after the entry into force of the new legislation an assessment of its application with particular regard to the digital market.

    Member States will have two years to transpose the new legislation.

    Current legislation on copyright

    Under current EU laws, recorded musical performances are protected for a maximum of 50 years. This means that over a period of 50 years, performers receive remuneration for each time their work is played on the air. After 50 years, artists lose control over the use of their works and no longer receive this income.

    Composers already enjoy copyright protection for 70 years after their death [Says the IPKat, I don't suppose they enjoy it at all: they're dead, if that means anything to EU legislators]".
    Famous old joke about what composers do after they die here, here and here

    The judge, the Swedish Copyright Association and an error of judgment...

    An interesting development in the Pirate Bay case: the BBC reports that Frederik Neij, Gottfrid Svartholm Warg, Carl Lundstrom and Peter Sunde, who were found guilty of breaking copyright laws by a Swedish Court last week, might seek a "retrial" based on the ground that the judge in the case, Judge Tomas Norstrom, is a member of the Swedish Copyright Association and sits on the board of Swedish Association for the Protection of Industrial Property. The judge was quick to point out on Swedish radio that "... these activities do not constitute a conflict of interest...".


    While the IPKat does not know whether the judge's association with the Swedish Copyright Association on its own would be enough for a retrial under Swedish law, he has to agree with the Swedish lawyer quoted by the BBC ("an error of judgement"), that this is not an ideal situation in such a high profile case.
    [Photograph source]

    Thursday, 23 April 2009

    Copad ruling brings joy to trade mark litigators

    After a period of relative tranquility which coincided with the Easter holidays, the Court of Justice of the European Communities has just got busy again. Today the Court gave its ruling in Case C‑59/08 Copad SA v Christian Dior couture SA, Vincent Gladel, as liquidator of Société industrielle lingerie (SIL) and Société industrielle lingerie (SIL), a reference for a preliminary ruling from the Cour de Cassation in France in February 2008.

    Right: a Dior corset dress

    What was this case about? Back in 2000 Dior made a trade mark licence agreement with SIL to make and sell "luxury corsetry goods" bearing the CHRISTIAN DIOR trade mark. By clause 8.2(5) of that agreement,


    "in order to maintain the repute and prestige of the trade mark the licensee agrees not to sell to wholesalers, buyers’ collectives, discount stores, mail order companies, door-to-door sales companies or companies selling within private houses without prior written agreement from the licensor, and must make all necessary provision to ensure that that rule is complied with by its distributors or retailers".
    In 2002, being faced with economic difficulties, SIL asked Dior for permission to market goods sold under the CHRISTIAN DIOR trade mark outside its selective distribution network. Dior said no. Notwithstanding that refusal, and in breach of its contractual obligations, SIL sold CHRISTIAN DIOR goods to Copad, a company operating a discount store business.

    Dior sued SIL and Copad for trade mark infringement. The Tribunal de grande instance de Bobigny held that SIL’s contravention of the licence agreement did not constitute infringement but merely merely gave rise to contractual liability. The Cour d’appel de Paris dismissed Dior's appeal, ruling that sales by SIL did not infringe since


    "compliance with the provision in the licence agreement concluded between SIL and Dior relating to conditions governing distribution did not fall within the scope of the national provisions on trade mark law that transposed Article 8(2) of the Directive [The proprietor of a trade mark may invoke the rights conferred by that trade mark against a licensee who contravenes any provision in his licensing contract with regard to its duration, the form covered by the registration in which the trade mark may be used, the scope of the goods or services for which the licence is granted, the territory in which the trade mark may be affixed, or the quality of the goods manufactured or of the services provided by the licensee]".
    The Cour d’appel de Paris, considered, though, that those sales did not imply exhaustion of Dior’s trade mark rights, for the purposes of the national legislation transposing Article 7(1) of the Directive [The trade mark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in the Community under that trade mark by the proprietor or with his consent. Paragraph 1 shall not apply where there exist legitimate reasons for the proprietor to oppose further commercialization of the goods, especially where the condition of the goods is changed or impaired after they have been put on the market]. Copad then appealed to the Cour de Cassation, which referred the following questions to the Court of Justice for a preliminary ruling:


    "1. Must Article 8(2) of [the Directive] be interpreted as meaning that the proprietor of a trade mark can invoke the rights conferred by that trade mark against a licensee who contravenes a provision in the licence agreement prohibiting, on grounds of the trade mark’s prestige, sale to discount stores?

    2. Must Article 7(1) of that directive be interpreted as meaning that a licensee who puts goods bearing a trade mark on the market in the [EEA] in disregard of a provision of the licence agreement prohibiting, on grounds of the trade mark’s prestige, sale to discount stores, does so without the consent of the trade mark proprietor?

    3. If not, can the proprietor invoke such a provision to oppose further commercialisation of the goods, on the basis of Article 7(2) of [the Directive]?".
    This morning the First Chamber of the ECJ ruled as follows:


    "1. Article 8(2) ... is to be interpreted as meaning that the proprietor of a trade mark can invoke the rights conferred by that trade mark against a licensee who contravenes a provision in a licence agreement prohibiting, on grounds of the trade mark’s prestige, sales to discount stores of goods such as the ones at issue in the main proceedings, provided it has been established that that contravention, by reason of the situation prevailing in the case in the main proceedings, damages the allure and prestigious image which bestows on those goods an aura of luxury.

    2. Article 7(1) ... is to be interpreted as meaning that a licensee who puts goods bearing a trade mark on the market in disregard of a provision in a licence agreement does so without the consent of the proprietor of the trade mark where it is established that the provision in question is included in those listed in Article 8(2) of that Directive.

    3. Where a licensee puts luxury goods on the market in contravention of a provision in a licence agreement but must nevertheless be considered to have done so with the consent of the proprietor of the trade mark, the proprietor of the trade mark can rely on such a provision to oppose a resale of those goods on the basis of Article 7(2) of Directive 89/104 ... only if it can be established that, taking into account the particular circumstances of the case, such resale damages the reputation of the trade mark".
    The IPKat can almost feel the mounting excitement among trade mark litigation lawyers across the length and breadth of the European Union as they consider, among other things, the meaning of the words "the allure and prestigious image which bestows on those goods an aura of luxury". How will "allure", "prestigious image", "aura" and "luxury" be defined?

    Left: corsets for Kats?

    What is the nature of the evidence that will establish that these criteria have been satisfied? Does this test apply only to consumer goods or does it also apply to brands in niche sectors such as office furniture, computer parts or food ingredients? Should the fact that goods are purchased as presents rather than for solely for personal consumption make a difference? This could be fun ...!
    Curia press release on this decision, available in 10 official languages of the EU but not in English (read it in Hungarian here).

    Cambridge Annual IP Lecture

    The IPKat has received notice of Cambridge's Fourth Annual International Intellectual Property Lecture. His correspondent writes:

    Fourth Annual International Intellectual Property Lecture:
    'Incompatible Intellectual Property: In Search of the Interoperability Grail'
    Tuesday 12th May 2009, 17:30
    Speaker:Professor Severine Dusollier, Professor of Law at the University of Namur, Belgium.
    Venue: Queen's Building Lecture Theatre, Emmanuel College, Cambridge
    Admission: By Invitation only.
    Those interested in being invited should contact Lionel Bently, lb329@cam.ac.uk
    Severine Dusollier is a Professor of Law at the University of Namur (Belgium) where she mainly teaches intellectual property and IT law. She also teaches at the University of Brussels (ULB) and at the University of Marne-la-Valle (France). She is the Head of the IPR Department at the CRID (Research Centre for Computer Law) since 1998. She received her doctorate from the University of Namur. Her research focuses on copyright in the information society, public domain and the intellectual commons, digital rights management, IP and competition law. She out research in several European and national projects and has been an advisor to WIPO, the Council of Europe, UNESCO and the European Commission.

    "We haven't registered Obama", says OHIM

    The IPKat receives some odd announcements and press releases, but this is definitely one of the most curious. Under the heading "Statement", this release comes from the Office for Harmonisation in the Internal Market (OHIM) itself. It comes with an explanatory rubric ("You may have seen that there has been an EFE story that OHIM has registered "OBAMA" as a Community trade mark. This is not correct - there has just been an application at present. In case you are interested here is our statement") and reads as follows:

    "OHIM has received an application on behalf of a Spanish individual for the Community trade mark "OBAMA". The examination formalities have not been completed as we have not yet received the payment of the application fee, so "OBAMA" has not been registered by the Office. If the application passes on examination, it is published in order to allow oppositions to be made during a three month time limit, and it can only be registered if it successfully completes this process.

    In general terms, if a trade mark is distinctive and not descriptive for the goods and services applied for, is not deceptive with regards to the origin of the goods and services or contrary to public policy, it will be accepted. To be rejected on public policy grounds, the trade mark would have, for example, to be racist, pornographic or related to terrorism.

    While we do not comment on the merits of individual applications, the Office Guidelines on the examination of trade marks specify that "names of individual persons are usually distinctive" and "the same is true for names of prominent persons, including head of states." (page 37) and it adds that they "will no longer be considered as deceptive or contrary to public policy" (page 51)".
    So now you know.  Merpel says, I seem to recall that an application to register the word mark BILL CLINTON was refused.  Is it just the Democrats ...?

    Wednesday, 22 April 2009

    Green patents in 9 months, digital copyright love-ins and a big hand for the Ethiopian coffee farmers

    The IPKat was invited to attend a World Intellectual Property Day reception this afternoon, hosted by the British Minister for Intellectual Property David Lammy MP (right, on this occasion, anyway ...). The venue was the "Wallace and Gromit's World of Cracking Ideas" exhibition at the Science Museum, in London's rather lovely 19th century Kensington culture campus. Although he dislikes canapés, loathes Wallace and Gromit, prefers a decent Scotch to the usual wines on offer and isn't always too keen on the IP establishment, the Kat betook himself to this official merriment and was not disappointed.


    The Minister took as the first theme for his address the need to look at intellectual property, particularly, from the perspective of the consumer. The government, he affirmed, did not want to tell people that they couldn't do the things they liked, which seems to apply to almost everything that involves copyright. 

    Left: Urged to do so by the Minister, SABIP supremo Joly Dixon enjoys a glass of vino before the midnight price rise announced in today's budget

    While copyright had been "rightly" in "the hands of professionals" for a very long time, the time had come to develop a copyright strategy based on a "shared consensus" which would result from a proper debate [the forum for this debate is a brand new microsite, to be launched in May].  This involved "trying to reach the hard-to-reach" -- though it wasn't immediately clear whether the hard-to-reach were consumers with iPods stuck in their ears or copyright collecting societies, imprisoned by the antique notion that somehow their members might just be entitled to some money.  

    Pausing for a moment to reflect that Wallace and Gromit (right) were "a huge and important export, linked with something that has been with us a long time -- intellectual property", the Minister then turned to the need to encourage small businesses to make more use of their IP since "all businesses own IP in one form or another". He rightly praised the Intellectual Property Office's online IP healthkit tool (reviewed by this blog here), before addressing the need to overhaul the global IP system ("it has done well but needs replacing").  Global IP needs a "flexible framework" in order to accommodate open innovation [that's funny, says Merpel, I'm sure that the current system has proved sufficiently flexible to enable the development of open innovation, open source, Creative Commons, Wikinomics ...].  The current international system was "designed for another era but needs replacing".  We Brits, through our leadership of the European Union, are poised to bring this about.

    The Minister then identified a number of targets at which Her Majesty's Government was taking aim.  Climate change was to be halted by a commitment to the deployment of the patent system as a means of incentivising the growth of green and low-carbon technologies. 

    Left: an enraptured audience of IP cognoscenti listen to the Minister's speech

    Green patents would be granted within 9 months of application [listen quietly at this point and you'll be able to hear the sound of European Patent Office examiners choking on their Bratwurst while they read this].  The world backlog of 7 million unexamined patent applications would then be eliminated [the IPKat invites readers to comment on this statistic], and a meeting would be arranged with the to-be-appointed US Intellectual Property Czar, through whom meaningful exchanges of information and official activities would be channelled. 

    More was yet to come. Mutual recognition of examination results and other forms of cooperation with foreign patent offices was endorsed, with special mention being made of the "ground breaking" deal struck with the Chinese. 

    Right: prolific and outspoken wind-up expert Trevor Bayliss enjoys a drink with Peter Prowse (CIPA). The IPKat was alarmed to find Trevor in a museum, but reassured when he discovered that the iconic inventor was a guest, not an exhibit.

    The developing world too was entitled to support and respect for IP, which could be delivered though using IP as a means of furnish "access to quality medicines" and by helping Ethiopian coffee farmers develop an IP-based business model for the promotion of their crops.

    The IPKat has been promised an electronic copy of the official version of David Lammy's speech, which he will make available to readers of the blog.  In the meantime, he is pleased to report that he thought that the Minister put on a pretty good show.  Approachable, lucid and apparently genuinely interested in the issues raised by intellectual property, he even made quite a good job of listening to others. While still quite sceptical with regard to a good deal of the content of the Minister's speech, the Kat is inclined to rate him as a long-term asset and not as a liability.  With a first-rate Intellectual Property Office behind him, he may be able to achieve some real improvements.

    Tuesday, 21 April 2009

    Tuesday twiglets

    It's not often that an intellectual property blog finds itself in the thick of litigation, but that's just what has happened to the quiet, inoffensive Afro-IP weblog. SAMRO (the Southern African Music Rights Organisation) is bringing proceedings for defamation against the respected South African copyright expert Graeme Gilfillan in what has now become known as the Brenda Fassie affair (you can read all the details of the dispute if you read this item on Afro-IP and follow the various links). The allegedly defamatory words were circulated through Afro-IP's increasingly popular Google Group. Afro-IP will of course keep readers informed of subsequent developments.


    The ever-vigilant Hugo Cox has spotted that the European Court of Human Rights is launching a new website to commemorate its 50th anniversary. The ECHR, better known for the endless stream of cases brought against East European governments by suffering humans, is also the tribunal that determined that the human rights of Anheuser-Busch Inc were not trampled on by Portugal when it magicked away one of that company's trade mark applications (see earlier post here). Merpel hopes the new website proves more user-friendly than the old one.



    Also via Hugo Cox comes this helpful link to both the original Swedish text of The Pirate Bay judgment (it's 108 pages long) together with a surprisingly intelligible translation into English via Google. The same link takes readers to a piece by Carl Howe, "Pirate Bay versus the media business: both lost today", which is worth a second glance. NOTE: the original link is correct, but doesn't seem to work for a lot of people. If you have problems with it, go to Yankee Groups and scroll through the April 2oo9 posts to access it.


    With the World Intellectual Property Organization's World Intellectual Property Day almost upon us, the IPKat has been well and truly chided (chidden? chid? chod?) by Mary Wyburn for neglecting to mention that Thursday 23 April happens to be World Book and Copyright Day, under the auspices of WIPO's troublesome wayward sister UNESCO. Mary assures us that she is not personally responsible for this event: she just happened to spot it [but where, Mary, have you been surfing, Merpel demands to know ..?].


    If you like answering questions anonymously and don't have an iPod, this is for you. IP Review magazine is conducting a "state of the industry" survey. Says editor Emma Jones: "A growing awareness of the importance of intellectual property rights to business success has led to unprecedented growth and transformation in the IP sector in the past two decades, but where does the industry go now? In the current financial climate, IP professionals are coming under increasing pressure to reduce their management spend, while generating increased profits from their existing assets, but how are they meeting this challenge? IP Review’s anonymous state of the industry survey would like to track your views on the sector and its future, and your own management approach to IP and associated IP Rights. To take part, visit this site by 8 May 2009 and you will also be entered into our free prize draw to win an iPod Touch 8B and music surround system". Results will be released at this year’s INTA conference in Seattle and available here from 16 May.

    Of talks and tapeworms: Fordham comes to Cambridge

    The IPKat's friend Louise O'Callaghan (Pupil, Hardwicke Building), who had the good fortune to attend this year's Fordham IP conference, gives us an illustrated perspective on it. She writes:

    "The 17th Annual Fordham IP Conference held in Cambridge on 15th and 16th April boasted an impressive list participants and speakers this year. According to its website, Fordham seeks to provide “a comprehensive review and analysis of today's cutting-edge issues in intellectual property law” and the 2009 programme succeeded in delivering just that.

    Speakers came from a wide range of backgrounds, producing a diverse and highly informed take on a number of topics, all with a distinctly IP flavour. The majority of seminars were split into groups relating specifically to Trade mark, patent or copyright Issues. Speakers included prominent members of the judiciary, such as Lord Hoffmann and Lord Justice Jacob from the UK and the Hon. Randall R. Rader from the US. Panel members also included general counsel from industry, including Google, Time Warner PRS, News Corp and Microsoft, to name but a few. Merpel was overjoyed to hear that they even let the academics in to stir things up! This list is not exhaustive: the full list of attendees can be found here.

    Topics up for discussion ranged from multilateral and bilateral relations, the role of the Judiciary in shaping IP policy, Web 2.0 exceptions and limitations, comparative damages in copyright, acquisition of evidence in patent cases, right of publicity/ privacy for trade mark (on day one) to enforcement and counterfeiting, patent law developments in Japan and US v China in WTO on day two, ending with a particularly lively talk chaired by Dr Tilman Luder (Head of the Copyright Unit for the European Commission) on the Information Society Directive, DRM, DMCA, Private Copy Levies, Secondary Liability.

    The General Council Roundtable also made for interesting listening, the topics of ‘the perception problem’, ‘IP theft’ and the ‘IP Crisis’ being high on the agenda. This session also produced the ‘most quoted quote of a quote’ of the Conference, that being news aggregators are “parasites or tech tapeworms in the intestines of the Internet”. In the same session there was an out-and-out attack on the newsworthiness of blogs, and (as I’m sure Tufty is keen to note) blogging culture was (almost) blamed for the entire decline of the news industry and the ‘death of journalism’. But fear not, Tufty! I’m sure those responsible didn’t mean such fine blogs as the IPKat ...

    (http://www.cartoonstock.com/directory/t/tapeworms.asp)

    In light of the recent decision in Pirate Bay is it worth observing that the diverse background of speakers and participants alike produced equally diverse views on the way to tackle copyright infringement effectively. These views ranged from a ‘do-nothing approach’, to ‘do-something-but-recognise-what-is-being-done-already’, to ‘for-God's-sake-lets-stop-them-from-doing-that-any-get them-to-do-this!’ approach.

    Overall, Hugh Hansen (left) and Fordham have produced another fine Conference facilitating an opportunity for the meeting of IP minds from across the profession. As Adam Smith (1723-1790) once said: “People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices” (Thanks to Trevor Callaghan, Senior Product Counsel at Google for the quote). Well, I can happily report there was no conspiracy at Fordham, just plenty of shared ideas and a whole heap of merriment!

    (Further thanks to Scott the Photographer for his wonderful pictures of the event)".

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