For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Tuesday, 30 April 2013

Long flight ahead? Here's some IP reading-matter

Flying to Dallas? How about a feline
luggage tag? (Available here)
As the conference season continues in full swing, an estimated 9,000 intellectual property owners, professionals and service providers are now preparing to fly off to Dallas for this year's Meet the Bloggers session, conveniently scheduled to coincide in space and time with this year's International Trademark Association (INTA) Meeting.  Now, not everyone associates the trip to Dallas with opportunities for self-betterment. Many good folk are trying to build up a reservoir of sleep, fix their out-of-office messages, plunder the duty-free shops for non-existent bargains or simply to remind themselves, just one last time before they reach the INTA Meeting, what it feels like to have to pay for a drink.

The IPKat however knows that he has many diligent and discerning souls among his readers, many of whom sincerely wish to improve their skill sets and knowledge bases in anticipation of a possible encounter with an escapee from the INTA's Scholarship Sessions on the Monday.  For these good and earnest folk he offers a selection of recent publications that might appeal.

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Patenting Medical and Genetic Diagnostic Resources, written by prolific young professor Eddy D Ventose, is published by the increasingly ambitious and adventurous Anglo-American house of Edward Elgar.  In recent years this Kat has read a great deal of what Eddy has been writing, not least because it was his pleasure to edit it for publication in the Journal of Intellectual Property Law & Practice (JIPLP), in which he has so far published over 20 articles and case notes, mainly on medical patent issues.
"This well-researched book explores in detail the issue of patenting medical and genetic diagnostic methods in the United States. It examines decisions of the Patent Office Boards of Appeal and the early courts on the question of whether medical treatments were eligible for patent protection under section 101 of the Patents Act. It then traces the legislative history of the Medical Procedures and Affordability Act that provided immunity for physicians from patent infringement suits. After considering the Supreme Court’s jurisprudence on patent eligibility, the book then comprehensively sets out how the Federal Circuit and the Supreme Court have dealt with the issue, paying close attention to the Supreme Court’s recent decision in Bilski and Prometheus".
Bibliographic and other details available here   Hand-luggage assessment: good.

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Trade Dress: evolution, strategy and practice, by Darius C. Gambino and William L. Bartow, seems to be one of those books that has disappeared into an online Bermuda Triangle following the sale by its original publisher, Oxford University Press, to LexisNexis of a large number of US law titles.  This is a shame.  Despite the book's unforgivably sludgy cover colour -- conceived no doubt in an era when no purchaser ever saw a law book before he bought it, and when no-one worried about what books looked like online -- it's a bright, cheerful, handsomely illustrated and well-written book on a subject that is so well-known that we get it wrong.  The authors, both attorneys at the US end of DLA Piper LLP, deserve a plaudit or two for producing a book that can be read profitably on a transatlantic flight without straining one's eyes or one's brain.

Bibliographic and other details don't seem to be available online -- but the book has 310 pages and you can get it on Amazon and eBay.  Hand-luggage assessment: excellent.

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Constructing European Intellectual Property: Achievements and New Perspectives, edited by Christophe Geiger, is (like Eddy Ventose's book above), another imaginative venture from Edward Elgar.  Published in conjunction with the European Intellectual Property Institutes Network (EIPIN), it is a busy celebration of European academic writing on a broad spread of intellectual property topics, penned by contributors whose skills extend from the strict letter of the law to the warmly multidisciplinary.  According to the publishers:
"Constructing European Intellectual Property offers a comprehensive assessment of the current state of intellectual property legislation in Europe and gives direction on how an improved system might be achieved [This direction does not include the words "Just trust the men in grey suits at the European Commission -- they know what they're talking about": Merpel].

This detailed study presents various perspectives on what further actions are necessary to provide the circumstances and tools for the construction of a truly balanced European intellectual property system. The book takes as its starting point that the ultimate aim of such a system should be to ensure sustainable and innovation-based economic growth while enhancing free circulation of ideas and cultural expressions. Being the first in the European Intellectual Property Institutes Network (EIPIN) series, this book lays down some concrete foundations for a deeper understanding of European intellectual property law and its complex interplay with other fields of jurisprudence as well as its impact on a broad array of spheres of social interaction. In so doing, it provides a well needed platform for further research".
This blogger disagrees with so eminent a figure as Christophe Geiger with the greatest of reluctance on matters of legal substance, but feels confident enough to debate with him on matters of mere metaphor. "Europe today stands at a crossroads", says Christophe. No, says the IPKat. Europe has stepped off the kerb and has wandered into the middle of the road, where the traffic is whizzing past it in all directions, in pursuit of a variety of goals which are sometimes complementary, sometimes contradictory.  Worse than that, Europe doesn't know the direction it must take in order to reach its destination -- and right now it can't move forwards or retreat to the place it formerly occupied.  Our first task, as academics, citizens, good Europeans and supporters of all things good and proper is to get Europe back to where it was originally standing. Only then can we examine the crossroads and work out, in light of Europe's priorities and objectives, how best they may be crossed.

Bibliographic and other details available here   Hand-luggage assessment: enough room for this and Patently in Love by Rhoda Baxter ...

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Intellectual Property and Property Rights, edited by Adam Mossoff, belongs to Edward Elgar's Critical Concepts in Intellectual Property Law series, in which it is number five.  It's a vast book, containing a number of the most influential and indeed interesting journal articles on IP and its conceptual relationship with other forms of property. The contents span the years 1977 to 2011.  According to the publishers:

"Intellectual Property and Property Rights is an invaluable reference work in light of the increasingly important policy debates over patents, copyrights and other intellectual property rights. This insightful single volume consists of influential articles by leading scholars addressing the interconnections between intellectual property rights and property rights. Topics include the justification for intellectual property as property, the historical development of intellectual property rights as property rights and whether intellectual property can be conceptually framed as a property right. With a new and original introduction by the editor, this is a must-have volume that will be of use to lawyers, judges, legal scholars, policy analysts, researchers and all those who need a one-stop resource for understanding the nature of intellectual property and property rights".
This is all very well, says this Kat, who is about to repeat a point that he has made before on this blog and elsewhere.  There is absolutely nothing to alert the reader to the fact that this book contains debate and discussion between Americans and with regard to US law. The articles are all taken from US journals; their authors are US-directed. If the rest of the world has ever made a contribution to the current debate, there is no record of it here.  Fossil remains of Bentham, Hegel, Mill, Locke and others can be found here and there, along with the occasional reference to traditional knowledge, but by and large this is a lock-out.  It may well be that this can't be helped and that there is no non-US contribution to the discussion that is worthy of inclusion -- or that there is one but it lacks a commercial market. Either way, the reader should at least be advised in the promotional literature.

Bibliographic and other details available here   Hand-luggage assessment: it's a whopper. You won't have room for much else to read other than the piece of folded paper tucked into your favourite painkiller that tells you what might go wrong if you take it.

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European Intellectual Property Law: Text, Cases & Materials, compiled by European IP scholars Annette Kur and Thomas Dreier, is -- yes -- another exciting new Edward Elgar publication. Here we have two big-name personalities taking the time and trouble to address a different audience for a change: not their peers, European decision-makers or representative organisations, but two kinds of reader: (i) those who may never have encountered European IP at all and who need to know something about its structure, its legal dynamic and the way EU principles impart their DNA into national statute and case law, and (ii) those who are so familiar with the law that they may never have stopped to think about it.  The first group are enriched with a text which is good as it stands and even more fun if you've heard Annette or Thomas lecturing and can therefore hear them in your mind while you read it.   The second group are treated to series of questions, each introduced by a 'black box' logo bearing a question mark. 


According to the publishers:
"The first of its kind, this textbook has been carefully designed to give students and non-specialist practitioners a clear understanding of the fundamentals of European intellectual property law.

Providing a comprehensive overview of both Community IP rights and areas of IP law that have been harmonised, and supported by judicious use of extracts from the most significant source material, the book assists the reader in navigating through the increasingly complex European IP system.

European Intellectual Property Law deals with European patent, trade mark and copyright law copyright, as well as with adjacent areas such as protection of plant varieties, geographical indications, industrial design, competition law, enforcement, and private international law, with a focus on the most relevant case law to be found in those areas".
Bibliographic and other details available here   Hand-luggage assessment: not too bad. The paperback version is handy: it can be bent to fill the space intended for it.

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International Handbook on Unfair Competition, edited by Frauke Henning-Bodewig, lies right at the opposite end of the spectrum from Annette's and Thomas's book (noted above).  While that work is something of a bouncy romp through the peaks and troughs of contemporary EU IP law which does not pretend to be an exhaustive reference work, the International Handbook on Unfair Competiton has that "built-to-last" feel about it.  According to the publishers, C. H. Beck (who have co-published the work with Hart and Nomos):
"In a world of global trade, the “fairness” of commercial transactions gains in importance. While most countries agree that in the interest of all market participants competition shall not only be free but also honest, significant differences as to the approach to ensure this fairness prevail. This not only affects interstate trade, but also impairs the interests of competitors and consumers who increasingly deal or buy abroad. 
The book discusses the “Acquis” in unfair competition law on an International and Regional level, as well as the national approach of more than 20 countries to the regulation of marketing and advertising, of protection for competitors against passing-off and discrediting, and of special rules for consumers etc. It not only offers insights to business and lawyers dealing abroad, but also forms the basis for the development of uniform standards worldwide regarding the commercial fairness of business practices".
The individual country chapters have been written by an impressive collection of authors, and it is likely that a great deal of work has gone into the editorial side of this tome since both the English and the accessibility of the legal analysis are agreeably consistent across this long work.  Comparison between the laws in different jurisdictions is facilitated by chapter divisions that correspond as far as possible to equivalent subject matter. If the reader samples nothing else, the short (26 paragraph) introduction and the subsequent chapter on international provisions addressing unfair competition are both thoughtfully composed and frame the subject both conceptually and legally before one travels through the countries covered.

Bibliographic and other details available here   Hand-luggage assessment: this large, heavy book should travel in the first-class cabin.

4 comments:

Gibus said...

In Geiger's book Constructing European Intellectual Property: Achievements and New Perspectives, I specially recommend the chapter written by Jens Schovsbo, entitled Constructing an Efficient and Balanced European Patent System: ‘Muddling Through’, having in mind recent developments with regard to unitary patent/UPC. A year ago, I've quoted Schovbo's excellent policy objectives.

Note that these objectives were also proposed by the European Parliament, through its committee on Scientific Technology Options Assessment (STOA), and completely dismissed by the same European Parliament when voting for the unitary patent regulation...

Anonymous said...

Re Ventose's new book: I find it strange how complicated patenting diagnostic methods has become. In the US the Bilski, Prometheus and perhaps Myriad, cases have left huge certainty as to what exactly is patentable. At the EPO G decisions on in vivo diagnostic methods have made the area very complicated. China seems to have copied this complexity into its patent laws. Also the EPO does not seem to have made its mind up on personalised medicines and novelty of treating patient sub-groups. Again causing huge levels of uncertainty in Europe and many other territories which look to European case law. I can't help to think that policy makers need to take charge and sort everything out. The vagaries of case law is not the way to decide on such an important area of patent law.

Jeremy said...

To Anonymous of 12:04

I couldn't agree with you more. And I can't believe that the interests of either industry or the healthcare services are served by the policy as currently articulated or by the uncertainties generated by its application across the world.

Anonymous said...

To add to Jeremy's comments on Geiger's book, I think what dismays me more and more is the lack of sophistication and imagination in how we discuss IP. The discussion seems to happen and be decided at the very basic level of 'there's no way the relevant people or authorities will agree to that'. As an example from my own field say company A spends a million pounds developing drug X and they get a patent for it since there is no directly relevant prior art. Company B spends a million pounds developing drug Y but cannot get a patent because a prior art document published 10 years ago suggests the possibility of drug Y, without data being given, and so their application is deemed to lack inventive step. Company B cannot protect its investment and all of human ingenuity on the planet does not seem to have any suggestions for dealing with this, that would have any hope of being implemented. There must be a better way of doing things, but I do not have any hope that Europe will come with up with anything.

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