The Court of Justice's Lego ruling was next for Aaron's scrutiny. Noting that Community trade mark protection for the Lego brick shape was first sought in 1996, he observed how much it had been litigated during that period. He then contrasted the decision to cancel the mark with other registrations in which a shape had been registered without any dispute as to its registrability on grounds of functionality or distinctiveness.
|Rider with coat-tails ...|
The failing of this ruling to distinguish be.tween "advantage" and "unfair advantage" is serious, but the courts have not subsequently applied this rigidly; they've still required some extra ingredient, in addition to "advantage", before agreeing that an advantage is unfair -- as has been shown by the Specsaver case. Darren then showed us his handy "free-riding spectrum" chart, ranging from counterfeiting at one end, as the extreme form of unfair advantage, to supplying a market for a breakthrough market where the first business on to the market can't meet demand.
Darren then reviewed the Lidl/Leclerc supermarket dispute over price comparisons made on the basis of the contents of a basket of products: do the comparisons have to be made on the basis of identical goods, and are the prices of the goods themselves representative of the shops' prices as a whole? The ECJ ruling gave a lengthy set of guidelines for national courts to apply.
Google France and subsequent decisions on whether the sale and use of trade marks as search result keywords infringed trade mark rights, bringing us up-to-date with the pending Interflora litigation, where the question before the European Court of Justice is not whether AdWord use impacts on the trade mark's essential function but rather whether it confers an unfair advantage under Article 5(2) of the Trade Mark Directive. He closed with a review of the Advocate General's Opinion in the pending eBay reference, where his advice was not to view liability for hosting infringing websites as a binary issue (liable/not liable) but rather to view the host's conduct as a whole within the context of the relevant trade mark and e-commerce litigation.
|Method of exercising a cat:|
patentable in the US under Bilski?
Moving on to the Supreme Court's ruling last year in Bilski (on which see the AmeriKat here and here), Matt pointed out that there are no statutory exceptions to patent-eligibility corresponding to those in the European Patent Convention. He contrasted the approach of the various US Supreme Court's justices and their attitude to the old "machine-or-transformation", having first traced that decision's antecedents from State Street and the rulings of the lower courts. That test would no longer be the sole test of patent-eligibility. As Matt pointed out, the court's murmurings were in some respects not dissimilar to those emanating from the Enlarged Board of the EPO.
Finally Matt addressed industrial applicability, there being a new case to cite in Eli Lilly v Human Genome Sciences Inc, as well as a string of perpetual motion machines. Industrial application must be disclosed in the patent application, said the court, in a decision which is now winging its way to the Supreme Court and which might, with luck be the subject of more analysis next year.