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.

Wednesday, 29 February 2012

Wednesday whimsies

Celebration time ... but who was it
that got to the bubbly first ...?
Essex Girl hits the big-time. Pop the cork and pour out the sparkling wine made by the methode champagnoise in honour of Emma Himsworth (One Essex Court), whose name appears in today's list of freshly-appointed Queen's Counsel in England and Wales. Emma QC has been involved in some of the IPKat's favourite legal disputes, including Interflora v Marks & Spencer, Matratzen Concord v Hukla and one case which, in this Kat's opinion, should never have been allowed to go to court, Reed v Reed. While you're pouring the bubbly, lift a glass to another of the day's new silks, Adrian Speck (8 New Square), a co-author of The Modern Law of Copyright and one of only a small number of men on the planet, along with IPKat team member Neil, who can tell you what the fractious and frustrating litigation in Scandecor v Scandecor was all about.

Katnotes: (i) while he is not (yet, at any rate) an IP man, James Laddie, of Matrix, and son of the late Sir Hugh, has also taken silk today. The Kat community wishes him and all his family past, present and future every success and happiness; (ii) if, in his eagerness to post this feature or because he didn't recognise them from their real names, the Kat has missed out any other barrister with IP credentials, he says "sorry -- just let me know!"


Not just kangaroos, but prior art ...
Around the weblogs. IPKat team member Jeremy, in his capacity as editor of the Journal of Intellectual Property Law & Practice, lets off a bit of steam on the jiplp weblog concerning the use of a phrase that does not enjoy his approval. Down Under in the Kangaroo-infested wilds of Australia, Patentology reports on the Intellectual Property Laws Amendment (Raising the Glass Bar) Bill 2011, which the Australian Senate debated and passed without amendment last night: this looks pretty important, even from the other side of the world (a katpat to David Fell, AnsaldoSTS, for the link).  PatLit carries a little more information about this month's big French Cour de Cassation ruling that you can't get your money back if you'd paid out damages for infringing a later-revoked patent, while an SPC Blog reader asks such horrible questions about the position of (national) SPC rights within a pan-European unified patent system that no-one wants to answer them.  The 1709 Blog remains in hyperactive mode this week, the Kat's pick being Ben Challis writing on royalties and accounting practices in the US recording industry. Finally, back in blogging mode for IP Finance, Neil Wilkof makes some telling points about the dangers of making generalisations about what "China" thinks about fakes and genuine products.


This newt has the ability to change
its colour in accordance with its
background -- a very useful
attribute in politics ...
Suit against the Newt ... When he heard that a complaint had been filed against "Defendants Does 1-10, Newt Gingrich, Mitt Romney, Rick Santorum" for infringement of Frank Weyer's United States patent, US7644122B2, this Kat wasn't sure whether this was serious or just an April Fools' prank come early. It seemed even more comical to him when he learned of the patent itself:
"Method apparatus and business system for online communications with online and offline recipients 
Abstract: The present invention comprises a method, apparatus and business system for allowing on-line communications with members of a group of recipients for whom the invention has been implemented. A group may, for example, comprise members of a particular business or profession. For example, a group may consist of doctors admitted to practice medicine in the United States. Individual members of the group may or may not have existing internet presences. The invention allows online users to communicate with each member of a given group regardless of whether or not the member has an existing internet presence. In one or more embodiments, the invention does so by setting up a database of contact information for members of the group, creating an internet presence for each member of such group, creating an on-line user interface allowing a user to access the member's created internet presence, and providing means of communications between the created internet presence and the member recipient".
A brief exchange of emails with Johan Orneblad (Origin), to whom a katpat is awarded, established that this was indeed a genuine action and not a spoof. Further details are available on Priorsmart here. It appears that the inventor is also counsel for the plaintiff. Says Merpel, what a great way to drum up awareness and publicity for one's professional practice.  The IPKat just wonders whether defendants Gingrich and Romney and Santorum will cooperate in resisting the infringement claim.

Patent Translate – EPO and Google launch new service

The IPKat has just seen this announcement on the European Patent Office (EPO) website:
In a major step to improve access to patent documents in multiple languages the EPO today launched a new machine translation service, called Patent translate, on the EPO's website. The service uses Google's Translate technology and enables translation from and to English for French, German, Spanish, Italian, Portuguese and Swedish, covering approximately 90% of all patents issued in Europe. By the end of 2014, the service will also be able to translate patents from and into all 28 languages of the EPO member states, as well as Chinese, Japanese, Korean and Russian.
This collaboration between the EPO and Google was announced a little over a year ago, and this is the first stage of the implementation. The EPO website also has (apparently in today’s world obligatory) FAQsThe translation can be accessed either via Espacenet or the EPO Publication ServerInstructions for use can be found here.

Basically, once you have up the text that you want, you just click a button and the translation appears.  The IPKat has performed a quick test accessing via Espacenet, and has found that procedurally it works well.  It will take him a little longer to check what is the quality of the translation.  This of course is the important point.  If the machine translation does not result in a text which can actually be understood, then it is of very little value indeed.  If any readers are trying the system, please let the IPKat know your experience.

Rare Diseases – are there sufficient incentives to develop treatments?

Today is RareDisease Day. Rare Disease Day is sponsored by EURORDIS, Rare Diseases Europe.

While anybody suffering from any illness may receive the sympathy of the entire Kat family, those afflicted by a rare illness must face a particularly difficult struggle.  A sufferer from a rare disease will likely have difficulty obtaining a correct diagnosis. Further, once a diagnosis is received, treatment options may be limited, if indeed there is any treatment available at all.

So what can be done to encourage the development of treatments for rare diseases? Judging from its website, EURORDIS takes the view that appealing simply to the altruism of pharmaceutical companies is unlikely to be effective.  This Kat would tend to also take that view.  Even though Monday was International Corporate Philanthropy Day, no company is going to invest money in research to treat an illness if there is no real prospect of a return.  Some degree of enlightened self-interest is necessary.

(A diversion on points of definition -  in Europe, a rare disease is one of low prevalence, generally one affecting less than 1 in 2000 people.  An orphan drug is a medicine for treating a rare disease).

Patent law sometime seems as immutable as the Laws of the Medes and the Persians.  It is not known for its flexibility.  In particular, the same standards for novelty and inventive step, and, most importantly for our purposes, the same patent term, apply equally to a blockbuster drug with a potential market of billions and to an orphan drug with the tiniest market.

The US was, to the knowledge of this Kat, the first country to introduce legislation to provide incentives for pharmaceutical companies to develop and market drugs to treat rare diseases, with the Orphan Drug Act of 1983.  The IPKat understands that this Act provides marketing exclusivity, tax credits, and fee waivers.

Within the EU, the Orphan Drug Regulation, which came into force in 2000, aims to provide incentives for pharmaceutical companies to research rare diseases by providing a 10 year market exclusivity period when such drugs are licensed.  During that period a generic version of the drug cannot be put on the market. Fee reductions are available for the marketing authorisation process.  Further, the regulatory process is likely to be far smoother when seeking approval in relation to a condition for which no treatment currently exists.

However this Kat, who is of a patent-y disposition, wonders whether the patent system itself can be used to provide an incentive to a pharmaceutical company to develop treatments with limited markets.

Many commentators, for many different reasons, have questioned whether a uniform patent term is correct given the hugely different industry models that the patent system attempts to support.  A uniform term is still with us probably because it is too difficult to try to assign different terms to different industry areas. Where would the lines be drawn? Who would decide? It is a great idea in theory, but how could a practical system be worked out?

This Kat’s feline ancestors told him that there used to be in UK patent law a concept of inadequate remuneration. Under the UK 1949 Patents Act, a patentee could apply to extend a patent term on the basis that it had not been adequately remunerated by the patent.

Could some system along these lines be worked out for orphan drugs? Would it be practical to have a system whereby, if the estimated or actual market for a particular drug was below a predetermined amount, then a patentee would be presumptively entitled to a certain extension of patent term? Would such a system give a pharmaceutical company the confidence to fund the research in the first place?  Commercially, certainty is usually prized above all.

These mew-sings on today’s theme are not new or revolutionary, and make use of established principles.  Do our dear readers have any comments?

Tuesday, 28 February 2012

ACTA - now the EU Parliament's petitions committee will have a look

ACTA in the news again (see earlier ACTA related IPKat posts here) and things are still confusing.

By way of reminder: so far 22 EU member states have signed up to ACTA, but several others, especially in Eastern Europe and as well as Germany, have decided against doing so.

Today the EU Parliament received a petition signed by more than 2.4 million Internet users against ACTA. This did not come unexpectedly as the EU Parliament already announced on its website, yesterday that
"The EP's [European Parliament's] petitions committee will look at the petition before deciding what action to take."
The chair of the EP's petitions committee, Erminia Mazzoniis, was quoted as follows:
"The ratification procedure of ACTA in the European Parliament has only just started. It will need to be examined carefully, taking into consideration all concerns, through a reasoned assessment of the facts and trying to combine the freedom of the Internet on the one hand and the fight against counterfeiting on the other. The follow-up of the petition will be decided in the coming weeks by the members of the committee on petitions."
....and indeed, the petition was delivered today and news site Euronews cites David Martin, a Scottish S&D member, who has recently been named the EP's ACTA rapporteur after his predecessor controversially resigned, as follows:
“I think ACTA, or something like ACTA, is necessary to defend our copyright holders and intellectual property holders but not at the price of criminalising ordinary citizens for simply downloading music or films or whatever from the internet. So I do not want any infringement on their civil liberties to do such things...”
The website The Parliament further quotes Mr Martin as having said that a "lack of transparency" during the drafting stages had "undermined" public confidence in the agreement:
"I want to analyse, consult and have a debate on the [ACTA] agreement and have not yet come to a conclusion on it."
Interesting times ahead....

Katonomics: past, present and future

It's no good, muttered Poppy, every time I think
I've grabbed one of those darned economic concepts,
it just slips through my paws again ...
Here's a message for those of you who have been scrabbling frantically up and down the screen in desperation as you seek Doctor Nic's Weekly Fix, the weekly Katonomics post: the second series came to an end last week with a generous and well-deserved tribute to the late Mark Rogers -- as close as an economist is likely to get to being described by IP enthusiasts as a good guy.  In case you missed any of the second series of posts on the impact of economic theory on intellectual property, this is what we posted:
No.7 "Trade secrecy and economics"

* No.8 "Business models"

* No.9 "IP valuation"

* No.10 "IP valuation again: how much is a footballer worth?"

* No.11 "Patent harmonisation and a little romance"

* No.12 "Economists and competition"

* No.13 "A tribute to Mark Rogers"
There's some good news ahead for all Nicola's devotees. A third series will of Katonomics posts will be commencing some time fairly soon after Easter. Meanwhile, if there are any subjects which you would like to suggest for Nicola to tackle, please feel free to post them below.

To check out the first series, click here

Sweeping decision: new broom brushes aside mop motion

The H2O Mop X5 (not actual size)
Often described as the new broom sweeping clean the Patents County Court for England and Wales, Judge Colin Birss QC is sometimes rewarded for this Cinderella role by being invited to hear the occasional real High Court application.  Thus in Thane Direct Co. and others v Pitch World Ltd (Patents Court, England and Wales), 27 February 2012, Judge Birss found himself sitting as an additional High Court judge. His job on this occasion was to decide whether it was appropriate to grant an interim injunction to halt the sale of an allegedly infringing five-function steam mop after the defendant had already undertaken to stop selling the product within a few weeks, where the claimant's losses were largely quantifiable.

Both sides in this dispute were TV marketers of household products. Thane's leading product was a five-function steam mop, the clumsily-named H2O Mop X5. Thane had actually sold two million of these steam mops worldwide, incidentally mopping up 80% of the market for steam mops sold by TV. Pitch World then launched its own five-function product, the Vapour Mop X500 which, Thane objected, was similar to its own in several respects. Thane sued, alleging infringement of its registered Community designs and trade marks and, to be on the safe side, passing off. Four weeks later, the parties were in court, Thane seeking interim relief and Pitch World saying it shouldn't be granted.

The Vapour Mop
X500: unpopular in
the Amazon
Delivering an extempore decision, Judge Birss QC agreed with Pitch World that no interim relief should be ordered.  The first condition for success in obtaining interim relief was achieved without too much hardship: Thane plainly had an arguable case based on Community design right infringement and passing off -- arguable, sure, said the judge, but not particularly strong.

So far as interim relief was concerned, the big issue was whether Thane or Pitch World would suffer irreparable harm if an interim injunction were granted or refused.  In this case the losses that Thane said were unquantifiable were actually pretty well both quantifiable and remediable by means of a damages award. The killer blow for Thane's application was however the fact that Pitch World had obtained only a small quantity of Vapour Mop X500s in the first place and that they had undertaken to stop advertising and selling their device within three weeks of the hearing. Under the circumstances the best thing to do, rather than intervening and stopping sales sooner, was to let Pitch World draw its sales to an orderly conclusion.

Says the IPKat, one rather gets the feeling that Thane wasn't very comfortable with the undertaking to stop marketing. In financial terms this might seem irrational, since each further sale by Pitch World might be accounted for. However, both in terms of trade mark infringement and passing off, there seems to be a bigger issue, one which would justify at least a shot at getting an interim injunction, and that would be the damage that might be inflicted on Thane's goodwill and credibility by purchasers of Pitch World's machines -- which haven't received rave reviews from customers -- deciding that there was some connection between the two, based on their similarity, which would encourage them to avoid Thane's mop too on the basis that the Vapour Mop X500 and the H2O Mop X5 were, er, tarred with the same brush ... Merpel says, she's keeping out of the kitchen. If Hello Kitty is licensing floor mops, she wants no part of it.

Who mops the floor now? How domestic service shaped 20th century Britain here
How mopping spreads germs here

Source: a handy note on the Lawtel subscription-only service

Will it end in tiers? A wind-up to boost secondary protection

Is it time to wind up the anti-STP
establishment with some well-aimed
evidence-based arguments?
This member of the IPKat team has long been an enthusiastic supporter of second tier protection (STP) -- a generic term for the utility model, the petty patent, the gebrauchsmuster or whatever you want to call it. Indeed, his position was firmly stated in a guest editorial, "Three cheers for two tiers? It’s time to welcome the nimbus", which he wrote for CIPA in September 2010 (you can read it here together with a goodly batch of readers' comments).

What has brought about this sudden recollection of an idea which for many is unpopular and unworkable, despite the success with which it has been deployed in Germany, Japan, China, Korea and elsewhere? Today marks the appearance online of an opinion piece, "Could 'Utility Model Patents' help SMEs and the lone inventor. What is ‘STP’?", which the UK's Intellectual Property Office is hosting in its most recent IP Insight, here.  The author is patent attorney John Grant MBE, of wind-up specialists Baylis Brands -- a highly respected member of the British IP community. This is what he has to say [with Kat comments in red]:
"In layman’s parlance, Second Tier Protection (STP) is a lesser form of intellectual property (IP) that is intended for the protection of devices, apparatus and the like where the technical advance is not as high as it might be for obtaining the grant of a full patent [too narrow, says the Kat: the technical advance may be considerable but the speed of the market in developing new products, available funding and strategic considerations may all make STP a better choice than a patent]; nevertheless, STP in its many guises is established in some 77 countries worldwide and finds extensive usage in some European countries but especially in China, Japan and South Korea. ...

In some countries the STP is registered without examination although such a procedure has to be undertaken if an infringement action is contemplated. The various forms of STP have different terms depending upon IP Law of the territory; thus, in Belgium a Short Patent has a term of 6 years while a Utility Model in Japan can be for 10 to 15 years.

Over the last two decades there have been several proposals for the implementation in the United Kingdom (and Europe) of STP in the form of a ‘Utility Model’ [the proposals go back even further: they were swiftly rejected by the Banks Committee,  The British Patent System [1970-71 Cmd 4407], on what seems to this Kat to be the ground that they weren't a British idea]. ...

In recent times it has been suggested that a European Utility Model would serve the interests of lone inventors and SMEs to of benefit to UK PLC insofar that it is recognised that the SMEs are the driving force that will lead the Country on the path to economic recovery, financial stability and prosperity [there was a dreadful Commission draft directive on Utility models COM
(1999) 309, which would have required harmonisation through the adoption of one of three different legal models, or is it muddles?].


The proposal that STP could be a step in the right direction was included in some of the responses made in the call for evidence that was considered in the Review by Professor Hargreaves; however, the topic never made it to the final report stage [not surprising, given the time constraints and the absence of the word "digital" from anythng to do with STP].

How would STP benefit SMEs et al

Amongst the main disadvantages that have to be overcome by lone inventors and SMEs is the uncertainty that Intellectual Property Rights (IPRs) can be protected at a cost they can afford. The cost of a full patent in the United Kingdom can be as little as £280.00 if the Applicant has the ability to draft a Specification and Claims that will pass muster not only before the Patent office Examiner, but also before a Court if the Inventor’s monopoly is attacked in an infringement action. On the other hand, if the services of a Patent Attorney are used, the initial costs of filing a Patent Application may be not less than £3000.00 with attendant additional monies becoming due if and when an Examiners Report raises objections that have to be responded to by reasoned argument [comments, anyone?].

The financial burden on the lone inventor and/or an SME could be alleviated if STP was available at a lower cost for a short term whether or not the STP was subjected to an examination procedure.

In China, according to Tony Mak, there were 315,000 Utility Models were granted in 2010, see the article printed at page 231 et seq of the CIPA Journal for April 2011. He also noted that 99.96 of the patentees were Chinese entities [the preponderant use of STPs by domestic businesses is a feature of every country that offers them, the Kat thinks. This is in huge contrast with regular patents, which in almost all countries are mainly owned by non-nationals].

It is not suggested that there would be a similar proportion of applicants for STP in the United Kingdom if a Utility Model law was to be promulgated; however, without such a Law we can only postulate at the effect it might have on the economic development of the Country.

Unfortunately, the likelihood of a United Kingdom and or a European Utility Model is something of a pipe dream and, even if there was to be an accord between the various countries of Europe, it would be many years before a law for STP would be promulgated.

In the meantime, there is no reason why lone inventors’ SMEs and even larger entities could not take advantage of the STP that is available in any of the 77 countries where such provision is established and especially in places like China, South Korea and Japan so that dealing with manufacturers in those countries, for products to be sold in Europe and elsewhere, would give added safeguard against copying by the manufacturer for his own disposal [This Kat has never understood why this option is so rarely pursued -- he believes that it is not always offered].

One way of ensuring that the appointed manufacturer is not tempted to manufacture products and to market them in territories where the inventor has no patent and/or design protection is to offer the manufacturer a licence deal at an equitable royalty rate that allows him to legitimately make the products for the inventor while being able to exploit markets where the inventor has no interest.

[An] Applicant for patent protection in any territory where STP is available should seek their Patent Attorney’s advice in relation to the usefulness of adding Applications for STP to their portfolio, especially where the protection being sought is for high value goods, apparatus and machinery [Merpel cheekily wonders how well local patent attorneys are confident to advise on this, given their lack of hands-on experience of dealing with them, an apparent lack of enthusiasm shared by many of them for the concept and the wide array of STPs currently on offer ...]. Having an STP, albeit for a short term may ensure that possible infringement of ones IPRs is prevented or at least reduced. ...

Obviously, STP in the United Kingdom would not protect any overseas markets for an invention, which would have to be the subject of an STP or full Patent wherever the invention was going to be marketed".
Bravo, says this Kat, it's time to get the show on the road!

Monday, 27 February 2012

Looking for something? last week's Katposts

Ever vigilant, night and day -- the IPKat team works
hard to make sure that readers miss nothing
So many people had kind things to say about last week's "Looking for something?" post, which listed -- in chronological order -- all the Katposts from the previous week, that the IPKat has decided to continue with this little experiment. Several people emailed to say how pleased they were, since they spotted something of importance to them that had been submerged beneath later items. On the other hand, a very large number of readers didn't -- which either means that they didn't miss anything or that they're still playing catch-up.

Anyway, last week's posts, excluding the regular features like the Monday Miscellany, Wednesday Whimsies and Friday Fantasies, look like this:
* "University IP and Commercialization: The Indian Way", here, in which Neil describes the tensions between private initiative and public enterprise in the hot-house atmosphere of a leading Indian research institute; 
* "Katonomics 13: a tribute to Mark Rogers", here, in which Katonomist Nicola Searle reviews the life's work of an unusually popular economist with a flair for IP-related work; 
* "Pirates' block? Courts get tough on BitTorrent Brigands", here. Early news of a get-tough decision to bar access to The Pirate Bay, in which only the copyright owners appear, plus news of a Dutch decision with the same object in mind; 
* "German Constitutional Court confirms BGH's 'AnyDVD' copyright decision", here. In this decision Germany's highest courts get to grips with the balance between copyright protection and free speech when it comes to the deployment of hyperlinks to sites that facilitate copyright infringement; 
* "What's the difference between a cat and an IPCom patent ...?", here, in which the IPKat reviews an important strategic victory for Nokia in its long-standing row with IPCom over the need to take a patent licence; 
* "Does and Don'ts, Rights and Wongs: US pornography goes to court", here, this being a curious case in which Cat the Kat turns the spotlight on US copyright and the protection of pornography; 
* "Adult fun, childish threats: Wild allegations of trade mark infringement", here, another tale from the US, this time involving Madonna, the Super Bowl and Girls Gone Wild; 
* "ACTA to be sent for judicial scrutiny: a Commissioner speaks", here, citing a media release of Karel De Gucht, imaginatively annotated by the IPKat; 
* "Whizzkid's Handbook temporarily confiscated", here, this being a follow-up to the previous week's story here concerning the publication by the European Patent Office of its Handbook of Quality Procedures before the EPO; 
* "Delays, drafts and distinguished discussants: the unitary patent moves on", here, this being the formerly latest news on that most changeable of subjects ...; 
* "It is not always reasonable to pursue all reasonable points", here, a slightly sad tale of a defendant in England and Wales patent proceedings which, though ultimately successful, didn't get an award of costs in its favour at first instance, having raised too many grounds at trial (though, on a happier note, it did get 70% of its costs of the appeal); 
* "Breaking news: Sky's no limit for Karen Murphy", here. The first the IPKat knew about the court ruling that Britain's best-known publican should not have been prosecuted for getting a cheap decryption device from Greece so that she could save £££ when screening football matches at her pub; 
* "Six of the Best: the IP Hall of Fame inductees for 2012", here, this being a list of some IP top dogs together with their pedigrees; 
* "That sinking feeling: will Titanic copyright claim go down without a trace?", here, another of those "it-can-only-happen-in-America" claims; 
* "America's new Patent Law: will it flop or fly?", here, in which the utility of a forthcoming US Patent Reform Forum is discussed against a backdrop of current uncertainty; 
* "What lovely melons – and the EPO wants you to know about them", here, in which Darren reports on the European Patent Office's public relations exercise in the field of fruit and vegetables.
Photo credit: a katpat for Jelena Jankovic (Petosevic)

What lovely melons – and the EPO wants you to know about them

The EPO from time to time posts on its website news articles about interesting patents that it is currently handling, usually because they are under opposition. The so-called “broccoli” and “tomato” patents, that were the subject of Enlarged Board of Appeal decisions G 2/07 and G 1/08 respectively, were each the subject of press releases announcing subsequent procedural steps (for example here about Oral Proceedings on the "tomato" patent , here and here about cancellation of Oral Proceedings for the "broccoli" patent, and here for a blog from the EPO President).
Continuing the fruity theme, the EPO is now kindly keeping us updated about the “melon” patent EP1962578 belonging to Monsanto.  This case has not graced the elevated halls of the Enlarged Boards of Appeal.  In fact, it has only just been opposed (by Nunhems B.V. and a consortium acting under the heading “No patents on seeds”). The EPO’s press release says there have been many enquiries about this case.  Accordingly, it has prepared a set of FAQ, housed on the EPO website under “Patenting Issues” – rubbing shoulders with the likes of the Unitary Patent, International Year of Chemistry, Machine Translation, and Patent Quality.

The FAQ tell us nicely about the patent: 

The patent relates to melon plants resistant to a virus - cucurbit yellow stunting disorder virus (CYSDV) - that attacks melons, turning them yellow and reducing fruit yield. The plants are made resistant by the introduction of a gene from another melon plant by way of a conventional breeding method involving the use of a genetic marker ("marker-assisted breeding"). The gene which is responsible for the resistance was first found in a melon plant in India and catalogued in 1961. It has been publicly available since 1966. 
The patent covers the modified plant, parts of the plant and its fruits and seeds, but not the breeding process for obtaining the plant. 
The patent application was filed with the EPO on 21 December 2006 and the grant of the patent became effective on 4 May 2011. The patent is owned by Monsanto Invest B.V.
The FAQ then move to more general topics:
What is the legal basis for granting European patents?What does "opposition" mean?Why was the "melon patent" opposed, and by whom?Is it possible to grant patents on plants?And then to the most extensive section – How many patents has the EPO granted in the area of plants?


The IPKat found the last section an interesting read about the statistics of European patents in this field.  Apparently, 
of the 13 848 patent applications relating to plants published by the EPO since 1990, 1 690 ended with the grant of a European patent. Of these, only 88 are patents for non-GM plants, while 1 602 relate to genetically modified plants
Merpel thinks that the EPO adopts a rather defensive tone in the FAQ, and wonders why.  She also wonders why this patent has aroused such interest in the EPO press office at this rather early stage. 


The IPKat is musing on another aspect of the timing of the press release – just after the expiry of the opposition period.  Would it have been permissible for the EPO to announce the patent just before the end of the opposition period, possibly bringing it to the attention of someone who would otherwise be unaware of its existence, and thereby prompting them to oppose it?  Readers thoughts and comments are welcomed.

Monday miscellany

Message from AmeriKat - Mark your Unitary Patent Calendars! The AmeriKat tells the IPKat that, following the incomplete evidence session of Baroness Wilcox before the House of Commons Scrutiny Committee, the Committee has requested her presence once more on 7 March 2012 at 2:30 PM.  Readers will recall from the AmeriKat's reports that the session became quite tense, so the AmeriKat is intrigued to see whether a different direction will be taken by the Minister and/or Committee. This session follows this weekend's first meeting of the Committee on the Rules of Procedure, so the AmeriKat is understood to be quite giddy at the updates that the Minister may have for Committee.  According to the press release, transcripts of those sessions are available online at the Committee's homepage. If you go to the Committee's homepage, you will discover the existence of further letters and submissions made by the IP Bar, the Chartered Institute of Patent Attorneys (CIPA), the Intellectual Property Federation (IPFed) [Picking up where the AmeriKat has left off, Merpel has spotted something very interesting: a contrary position on the much-criticised Articles 6 to 8 has been taken by Dr Winfried Tilmann, in a submission which he has made on behalf of leading international intellectual property practice Hogan Lovells International LLP.  Is this, Merpel wonders, the first formal submission in support of Articles 6 yo 8 to have been made by a law firm? Even more interesting is the fact that Dr Tilmann is a member of the Rules of Procedure Committee].


Whatever happened to Japan?  Back in the 1980s and early 1990s, it seemed that Japan was the unstoppable economic and high-tech force among free market economies. A leading manufacturer, innovator and designer of goods and a trend-setter in many other ways too, Japan was the country we all admired, respected, feared and envied.  Then suddenly the malaise of economic stagnation and the rise of China brought a slowdown within Japan itself and a sudden focus on its massive neighbour. But Japan has never ceased to be creative, in industrial terms, in artistic creativity and in legal matters too. Accordingly the forthcoming seminar, "Recent Developments in Japanese Copyright Law - Exceptions and Limitations", may be worth attending.  This event is jointly organised by the Queen Mary Department of Law, the Centre for Commercial Law Studies and Meiji University on the afternoon/evening of 21 March. The venue is the London office of Edwards Wildman Palmer UK LLP in the City. Click here for further details.


Around the weblogs.  Kinglsey Egbuonu's A to Z trek around official African intellectual property office websites on behalf of the Afro-IP weblog takes him to Niger. The jiplp weblog has two items for your consideration this morning. The first is what on earth we should do about footnotes full of lengthy URLs; the second, with the poetical title "The Pirate Bay: sunk without a say?", is a note on the very recent ruling of the Chancery Division, England and Wales, on an application for an order that ISPs block access to The Pirate Bay (neither the ISPs nor TPB being in court). Darren is writing a big note on this decision once it has been back to court in June: this is the hors d'oeuvres.  Mark Anderson, on IP Draughts, develops a topic that has long been close to this Kat's heart: the dangers of using a US template for a contract that is not premised on US law and practice. Rosie Burbidge has posted two short notes on Art & Artifice, here and here, summarising last week's Red Bus copyright seminar.


Perpetual protection for non-perishable sausage. Being linguistically challenged and being subject to certain dietary restrictions, this Kat cannot say whether "Gornooryahovski Sudzhuk" is pronounceable, or indeed edible -- but this traditional flat sausage from the northern town of Gorna Oryahovitsa has become the first Bulgarian geographical indication to be recorded in the European Union’s register of protected designations of origin and protected geographical indications.  This event took place on 21 December 2011, but the IPKat has only just heard about it. He congratulates his Bulgarian brothers on this notable first and welcomes Gornooryahovski Sudzhuk ("a compacted, non-perishable, raw, dried sausage manufactured from natural gut filled with machine-minced beef") into the ever-growing family of protected European sausages. A katpat goes to his friends at Petosevic for supplying this information.


Enough to make you cry!
the whole Cour de Cassation
judgment is only 5 sides long,
including the empty space ...
Short and sweet.  Late last week, the IPKat received a brief email from Professor Sir Robin Jacob, with this attachment. On close and careful inspection, it was apparent that the latter was in French.  The exchange of correspondence ran thus:
Sir Robin: "You should put this out on IPKat"
IPKat: "Sorry, just got down to this and it’s all in French. Give me a clue and I’ll post it".
Sir Robin: "Its in French because they are French".
From this exchange the IPKat assumed that the case must have had something to do with obviousness. He was wrong. It seems that this is a decision of the Cour de Cassation, the source of some of the shortest appellate rulings that this Kat has ever seen. The gist of it is that the court has in effect agreed with the British rule in Unilin that res judicata in one case trumps later revocation [i.e. that if you infringe a patent which turns out never to have been valid and are made to pay damages, that's just your hard luck]. The Unilin point, as Sir Robin notes, is going to be challenged in the British Supreme Court in the Virgin Atlantic appeal [for discussion of this issue, see PatLit here and here].

Sunday, 26 February 2012

America's new patent law: will it fly or will it flop?

"Is it a bird, is it a plane ..?"  There can be few readers who do not, on reading these words, think instantly of comic-book and later screen hero Superman making his dramatic entry. But behind the clichéd questions lies an important point. Those who saw the superhero's approach sought to identify him by reference to his functionality. In simple terms:
Question: What is that object in the sky doing?
Answer: Flying.
Question: What flies?
Answer: Birds and aeroplanes.
Just as the denizens of Metropolis, on watching the impending arrival of Superman, were initially puzzled by what they saw, so too are most members of the patent fraternity somewhat perplexed at the impending impact of the Leahy-Smith America Invents Act.  In fact, they are even more puzzled. Why so? It was at least plain even from the distance that Superman was flying and, once he was clearly visible, everyone -- including his enemies (who were bad) knew that Superman was a force for good. However, in the case of the America Invents Act, it's not even clear whether it will fly or flop and not everyone -- including its enemies (who include both those who are good and those who are not) can yet tell if it will be a force for good.  This particular member of the IPKat team cannot remember any piece of patent legislation that has so divided a nation, not only during the pre-legislative stage but during and even after it.

One expects patent practitioners and their clients to be less clear than their US counterparts as to what the new legislation, which has been superimposed on a batch of recent US Supreme Court decisions, will mean to them.  But the degree of uncertainty experienced by indigenous commentators and experts is quite unsettling. In the absence of a period in which USPTO practice settles down and professional norms stabilise, and without the benefit of clarificatory rulings from a patent-aware and hands-on judiciary, everyone is going to be guided by personal impressions, by probabilities, by the presumption that past experience can plug gaps in the present and by the comfort of consensus. This latter factor is in many ways the most important. A single person's uncertainty can make him reluctant to file a patent, to sue, to invest or to license.  But, when that uncertainty is shared with others and a general consensus crystallises as to how the uncertainty is likely to resolve, while that uncertainty has not been eliminated, much of its effect can can be negated. And that's what forums are for.

The US Patent Reform Forum 2012 is hosted by the IPKat's friends at Managing Intellectual Property magazine on 27 March in the Willard InterContinental Hotel, Washington DC. This Forum offers a great chance to identify those areas of uncertainty, doubt and speculation which the IPKat finds so entertaining -- and to discuss them. With a list of speakers including Q. Todd Dickinson (fresh from his induction last Friday into the IP Hall of Fame, here), Sherry Knowles (left), Dan McCurdy, Judge Paul Michel and not forgetting David Kappos, one area in which there is no doubt is that there will be some weighty opinions to consider [Merpel wonders how much consensus these characters are likely to reflect, given their range of backgrounds, experience and perspectives ...].  Incidentally, the US Patent Forum 2012 will be streamed in real-time as live webinars to a global audience of IP professionals".

If you want to know more about this Forum, the brochure and registration details can be found here.

That sinking feeling: will Titanic copyright claim go down without a trace?


From the 'I don't believe it department', this Kat brings you news that on 10 February 2012 a lady by the name of Princess Samantha Kennedy, of Imperial Beach, California, filed an action against Paramount Pictures in the US District Court for the Southern District of California in relation to the motion picture blockbuster Titanic. As we all know, Titanic was a critical and commercial success: it won 11 Academy Awards (including Best Picture) and has earned approximately US $2 billion at the box office. James Cameron is credited as being the writer of this particular production and he duly registered version editions of both the screenplay and the film with the US Copyright Office back in the late 1990s. Princess Samantha however claims that Paramount used her previously unpublished 'copyrights, my novel and scripts' 'written from 1990-1992' to create the film and seeks 'the total amount that they made on this picture' which she 'is informed and believes ... [is] in the amount exceeding $3 billion'. She claims that she 'never saw the motion picture in the theatre and recently saw it play[sic] on television. I have just discovered this'.

Princess Samantha's claim is handwritten and her 'brief description of the complaint' runs to 15 pages. The text is exhausting to decipher, consisting of a single monolithic paragraph; it contains numerous grammatical errors; it repeats itself on several occasions; it includes irrelevant material (such as that her son 'Adam Urich is a disabled autistic person who was commended by President Clinton in the 1990s') and it quotes irrelevant cases (such as that between Chuck Wepner and Slyvester Stallone in 2003 in relation to the Rocky franchise: that case concerned an alleged agreement under which Mr Stallone is alleged to have agreed to pay Mr Wepner a substantial sum for being the inspiration for the Rocky character, it is not, as is suggested by Princess Samantha, authority for the proposition that when people inspire films 'the court let the case go forward after 30 years' for them to claim). Needless to say, it lacked all that one would expect from a properly drafted statement of case.

Here is a taster of some of Princess Samantha's claims:
'I have just completed the studying of the works between my work and what the infringers stolen and without a shadow of a doubt I realize today they have taken my work. I have enough side by side comparisons to show infringement, enough to show a winning case. In my biographies over 500 pages I wrote also about the 1953 motion picture about Titanic, defendants took that and proceeded to copy my dialogue and the rest of my biographies, its expression, name of characters + people on a ship to create the motion picture.'
'I have hundreds of pages of side by side comparisons that a school grader, a child, could easily read to see infringe, that I will present to the court. I have proof that Paramount Pictures had access to my work in writing from them. I have Jack, the artist, Rose, Mary Jane, the card game of the winning ticket, the painting, the car where they make love, the mother in law who hates the son in law and hundreds more, even Lucy.'

'I even wrote in my biographies about my large intestine being removed from ulcerative colitis and paddles to shock my heart back to life felt like a sledgehammer on my chest. The defendant copies "we are looking down into the bowels" "It was like a sledgehammer". He mention the sledgehammer. The card game, playing the game in the movie, I write he won the game, danced around and I wrote, he said "you'd think he'd won the lottery." Paramount writes he won the card game, dances around, rides on his back and says, "it was like winning the lottery." Same copying of my expression and I have over 450 pages of side by side comparisons to show I will win.'
Apart from the fact that the complaint is handwritten (this Kat guesses, on reviewing the signature, that her son has scribed it on her behalf), this Kat thinks that a number of other procedural deficiencies which are likely to sink Princess Samantha's complaint.

First, it does not seem like Princess Samantha has filed to register her copyright for her novels and scripts. Although there are two registrations on in the name of a Samantha Kennedy, these appear to relate to poetry (Selected Poems 1979-1994 (TXu000638165), registered on 2 September 1994, and Nadia (TXu001076195), registered on 21 November 2002). If these were Princess Samantha's registered poems, it is curious why she also did not also register her so-called Titanic novel and scripts at the same time. For US copyright law, the IPKat understands that one at least needs to have filed for copyright registration before one can commence legal proceedings.

Secondly it is likely that Princess Samantha's action is statute-barred on the basis that, in the US, one has only three years from when the cause of action has accrued in which to commence an action for copyright infringement. This Kat has been led to understand that, in such circumstances, a cause of action accrues when one knew or should have known about the infringement. As noted above, Princess Samantha claims that she had not been to the cinema since 1995 and only claims to have seen Titanic recently on television. While this may or not be true, it is a matter of common knowledge that the Titanic movie received huge publicity when it was released and continues to attract publicity right up until today. If she was as integrally involved in the Titanic story as she claims, given her 500+ pages of notes, it seems inconceivable that Princess Samantha could have failed to miss the mere existence of the film in the 15 years since its release.

Merpel, who has watched Titanic several times in the hope that it might eventually have a more cheerful ending, still thinks that Jack Dawson is 'the King of the World' ...

A katpat goes to Chris Torrero for leading the IPKat and Merpel to this item.

Friday, 24 February 2012

Friday fantasies

ACTA: the Slovakian position.  Slovakia is one of the EU Member States that has not signed ACTA. That country has however held its first public exchange of views on the controversial agreement at a conference organized by the Ministry of Economy last Monday.  Katfriend Zuzana Hecko (Allen & Overy, Bratislava) reports:
"On 20 February the Minister of the Economy, opening the conference, said that he would not support any agreement which would restrict the freedom of speech or freedom to impart information. He stated that ACTA contains far too many uncertain provisions and is therefore very controversial. His speech was followed by a speech from Pedro Velasco Martins (European Commission, DG TRADE) who reassured the Minister that ACTA does not change anything and that Slovakia, as a member of the EU, should not forget the interests of European (and Slovakian) right holders when they (try to) enforce their rights abroad. The State Secretary of the Ministry of the Economy said that if, ACTA does not change anything, he sees no reason why there is a need to adopt this document at all.  
The conference was followed with speeches from the Ministry of Culture, Ministry of Justice, Customs Administration and the Intellectual Property Office, who all stated that ACTA was already contained in the Slovak legislation and expressed their support for the document. 
The President of the Slovak Pirate Party said that ACTA introduces censorship on the internet and the interception of private correspondence. He stated that they were not asking for the abolition of copyright (how nice of him, isn't it…), just for reform as "copying got people down from the trees and on to the ground". Surprisingly (or not...), no right-holders were invited to speak at the conference. 
As Slovakia will hold an election in one month, presumably no signature can be expected at least for a couple of months".

The audience will need to take
suitable measures to avoid being
dazzled by the speakers
ACTA: a discussion. On 6 March 2012 the Institute for European Studies at the Vrije Universiteit Brussel, in cooperation with IBBT-SMIT, is holding a Policy Forum, "The Anti-Counterfeiting Trade Agreement (ACTA)". Speakers are Carl Schlyter MEP, Benoît Lory (Policy Officer, European Commission - DG Trade), Joe McNamee (Advocacy Coordinator, EDRI - European Digital Rights) and Burak Özgen (Senior Legal Advisor, GESAC - European Grouping of Societies of Authors and Composers).  As the forum notice explains:
"Across Europe there have been waves of protest by citizens who see ACTA as promoting Internet censorship and monitoring, whereas supporters of ACTA have contended that large-scale infringements of intellectual property rights threaten the competitiveness of our economy. In this Policy Forum, four experts will debate ACTA and the implications of ratification by the EU. There will also be an opportunity for questions from the audience".
Participation is free of charge and open to all but, due to space limitations, registration is required. To register, email events@ies.beThe programme starts at 11:00, followed by a lunch reception at 12:45.


A trip to the seaside. The IPKat has kearned that Baroness Wilcox, the UK's Intellectual Property Minister, is in Plymouth today as part of "ongoing consultative regional events". She will, according to the IPKat's reliable source of information, be "hearing views" [an interesting metaphor] on the Government's proposed changes to the UK copyright system. The Kat understand that "the Minister is looking forward to hearing suggestions for how improvements to the copyright system could be made" [aren't we all?].


Around the weblogs.  IP Finance hosts a request from its namesake, the IP Finance Institute in Turin, Italy, which is running a survey to support its ongoing research into trading patents -- particularly via auctions.  SOLO IP brings the exciting news that the results of Fellows & Associates' first UK IP professionals' salary survey are now available, here.  Art & Artifice relates the latest efforts of wrap-artist Christo to display his talents on the Arkansas River and the efforts made to thwart him.

Six of the Best: the IP Hall of Fame inductees for 2012

The IP Hall of Fame, a brainchild of Intellectual Asset Management, has just announced its fresh list of inductees for 2012. Usually there are just five, but since there was a tie for one of the places it was decided to be magnanimous and allow a sixth lucky soul into the celebrity circle.

Who are they? Since they're famous they need no introduction but a little explanation goes a long way and the IPKat is happy to explain what they are doing here:
Beatrix de Russe. As head of IP and licensing at Technicolor, Beatrix built and operated one of the biggest and most lucrative high-tech patent licensing operations in the world. 
Q. Todd Dickinson. Currently the executive director of AIPLA, Todd's previous roles include Under Secretary for Commerce for Intellectual Property and director of the USPTO. 
Alan Drewsen. Alan has been executive director of INTA since 1998, during which time the organization has grown and thrived in its mission to improve IP rights in its member countries.  
David Kappos. The Under Secretary of Commerce for Intellectual Property and director of the USPTO since 2009, David was previously formerly head of IP at IBM. 
J Thomas McCarthy. An internationally renowned author on IP matters, Tom is the author of an eponymous treatise, McCarthy on Trademarks and Unfair Competition, which has been relied upon in over 2,000 judicial opinions.

Marybeth Peters. Marybeth was the United States Register of Copyrights 1994 until her retirement from the role in 2010, during which time she was instrumental in introducing an electronic filing system.
The inductees will be presented with their induction certificates at the IP Hall of Fame Gala Dinner on 25 June at the Estoril Casino during the IP Business Congress in Portugal. Well done, says the IPKat, you've conributed a huge amount for your various bits of the IP community.  Merpel says, it looks as if the best way to become famous is to be based in the United States and run an organisation ...


IP Hall of Fame here
IP Hall of Fame Academy members here

Breaking news: Sky's no limit for Karen Murphy

This Kat has just been listening to a BBC Radio 4 interview with pub landlady Karen Murphy, in the wake of the announcement that she has now obtained a court ruling in her favour.  According to the BBC website:
"A pub landlady has won her court fight with the English Premier League over using a Greek TV decoder to screen games. Karen Murphy has paid nearly £8,000 in fines and costs for using the cheaper decoder in her Portsmouth pub to bypass controls over match screening. But she took her case to the European Court of Justice (ECJ: on which see the IPKat here).

It found partly in her favour, and now the High Court in London has also found in her favour.

The case has been closely watched [not by TV viewers, alas] as it could trigger a major shake-up in the way football TV rights are sold, and potentially pave the way to cheaper viewing of foreign broadcasts for fans of top-flight English games.

Ms Murphy has spent six years fighting a prosecution for showing live football at the Red White and Blue pub without a Sky subscription. Instead of using Sky, on which it costs £700 a month to see Premier League matches, she used the Greek TV station Nova, which has the rights to screen the games in Greece, and which cost her £800 a year.

She took her fight for the right to use the cheaper provider to the European Court of Justice (ECJ) which ruled in October 2011 that having an exclusive system was "contrary to EU law".

The High Court in London on Friday [in a judgment not available on BAILII at the time of posting this blog] ruled that Karen Murphy's appeal over using the decoder to bypass controls over match screening must be allowed.

But a judge made clear that the other complex issues regarding the wider legality of screening matches would have to be decided "at a later date". ...".
This Kat was most impressed with Karen Murphy's ability to discuss and explain the legal and factual background of the case as well as the effect of today's ruling. Indeed, her explanation compared favourably with that of most of the law students which he has had the pleasure of teaching in the past. But then, that's only to be expected. Everyone knows that English law students learn more in the friendly environment of a pub than they do from lectures, and Karen Murphy has spent far more time in bars than they have ...

Thursday, 23 February 2012

It is not always reasonable to pursue all reasonable points

In today’s costs judgment in MMI Research Ltd v Cellxion Ltd & Ors [2012] EWCA Civ 139 the Court of Appeal, applying the general rules on costs, declined to award costs to the defendants, which had ultimately prevailed on a question of obviousness, because they had raised so many issues on which they lost. Notwithstanding that the points raised may have been individually reasonable, the sheer number was not:


Always reasonable
We think the defendants were indeed profligate in the number of points they took. A defendant cannot take as many "reasonable" points as it likes and not have to pay for any of them if they are unsuccessful. If he has a large number of potential such points he should make a judgment as to which are the better ones. A good test to apply is not merely "is this point a reasonable runner?" but also "which of my reasonable runners are the best few?" If only a few such points are run and all but one fails, the court may deprive the party of its costs of the unsuccessful points. But there comes a point when more sanction is called for. This is particularly important in a patent action where very often a host of possible defences could be run. A reasonably strict costs regime should make a defendant concentrate on his best – which may indeed also give him a better chance of winning.

The Court not only refused to grant costs in respect of the unsuccessful defences, but also in respect of the point on which the defendants had prevailed: “That we think is the appropriate price to be paid for its profligacy.” However, the Court did not go so far as to award costs against the defendants, as the patentee had asked.

Delays, drafts and distinguished discussants: the unitary patent moves on

The AmeriKat prefers keyboards
to chairs for naptime - not only are they
warmer but they are sure to be required for
use  by someone (which makes them
all the more desirable)
Last week the AmeriKat reported on the latest status of the unitary patent proposals following Baroness Wilcox's appearance before the House of Lord's Sub-Committee on EU Affairs. From that hearing she (the AmeriKat, that is, not Baroness Wilcox) was able to piece together that (i) there may still opportunity to negotiate amendments to the Regulation, namely on Articles 6 to 8, (ii) the location of the Central Division has hit a roadblock with a decision expected from the heads of state at some unspecified point in the future and (iii) the stated June 2012 deadline to reach agreement on the proposals may not be met. All in all, this was greeted as good news by the patent profession, industry and academics who have been tirelessly campaigning to slow down the process in order for necessary amendments to be taken into account in the Proposed Regulation and Draft Agreement.

Supporting the view that the profession and industry have a bit more breathing room, on Monday and Tuesday this week following the meeting of the Competitiveness Council a press release was issued which stated that Member States had again confirmed their involvement to reach a resolution on the patent package, the latest date to do so would be June 2012:
"The Presidency recalled the statement made on 30 January by the heads of state and government of the member states participating in the enhanced cooperation for the creation of unitary patent protection to reaching a final agreement on the last outstanding issue in the patent package at the latest in June 2012 (5/12, point 4)." [Of course, the AmeriKat reminds readers that this previous statement was subject to particular scrutiny by the House of Common's Scrutiny Committee where it was stated that the "last outstanding issue" was an over-simplification of the actual position.]
All of this naturally means that, while politicians negotiate on the substantive provisions and court locations, there is a degree of waiting around for those us inhabiting the less rarefied air of European patent politics. Readers may think they can now sink comfortably into their office chairs, switch off and await further news. "Maybe", says the AmeriKat, "But not for long ..."

Under Article 22 of the Draft Agreement, the Rules of Procedure will lay down the details of proceedings before the unified patent court, with the aim that the Rules will
"guarantee that decisions of the Court are of the highest quality and that proceedings are organized in the most efficient and cost effect manner. They shall ensure a fair balance between the legitimate interests of all parties. They shall provide for the required level of discretion for the judges without impairing predictability of proceedings for the parties".
The Committee of Seven
 -- a happy choice of number
between 6 and  8
The current draft of the Rules of Procedure from 2009 ["If you can call that 'current'", hisses Merpel], with some 400-odd provisions, is now before the newly formed Committee for the Rules of Procedure. The Committee is formed of members from four Member States -- Netherlands, Germany, UK and France -- with a patent practitioner and judge from each Member State, save for the Netherlands. The illustrious panel, chaired by Kevin Mooney (Simmons & Simmons), is comprised of Willem Hoyng (Hoyng Monegier), Pierre Véron (Véron and Associates ), Alice Pézard (Judge, Cour de Cassation), Winfried Tilmann (Of Counsel, Hogan Lovells), Dr. Klaus Grabinski ( Judge with German Federal Court of Justice, the Bundesgerichtshof) and Mr Justice Floyd (High Court of England and Wales). [Or should we start calling them 'The Magnificent Seven'?, asks the AmeriKat]

Speaking with the AmeriKat yesterday morning, Mr Mooney explained that his aim was to make the process as "open and inclusive as possible". He explained that the Committee will be spending the weekend working on the draft Rules in the hope that, in a short period of time, and ideally by the end of March, a draft will be released to interested organizations for their review and comment. The AmeriKat understands there will be a high level of engagement and involvement with industry and professional organizations which, it is hoped, will allow substantial refinement of the Rules as soon as possible. A further draft will then be released for public discussion.

As discussed during the House of Commons Scrutiny Committee hearings, some of the problems that are inherent in the substantive provision may be somewhat alleviated by the provisions in the Rules of Procedure -- for example, control on time limits where there are bifurcated proceedings to ensure there is no lengthy delay between validity and infringement proceedings. It is thus an important step that a Committee of distinguished members from several Member States has been formed and will now be tackling the Rules. 

Kevin Mooney, Chair of Committee
on Rules of Procedure
Although the formation of the Committee does not in anyway change, negate or lessen the vital concerns that the profession and industry have in respect of the substantive provisions, certainty as to the Rules will at least provide the profession and users further clarity as to the nature of the unitary patent beast that they are currently facing. The AmeriKat also believes there is much to be said for having an official Committee with experts pooled from various Member States who will give voice to and will address the issues that have been concerning the profession for so long.  Further, given the Committee's geographical legitimacy, their views and comments will hopefully not be dismissed as being a voice of any particular "interest party" or national interest.

Admittedly, despite her earlier comment, the AmeriKat says that readers can relax a little bit while the Committee hunkers down for what will surely be the first in a long line of detailed discussions this weekend. But until then, the profession could perhaps preoccupy themselves with some extracurricular reading. Merpel suggests that the opinion from the Commission's legal service on why Articles 6 to 8 must be included in the Regulation would be a good start.

"I like your suggestion, Merpel, but it's difficult to read something we have never seen..." says the IPKat, "Are we sure it exists?".  The AmeriKat says nothing, as she has already scampered off to see if the Commission has finally disclosed it...

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