From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Wednesday, 6 November 2013

Wednesday whimsies

It's not just judges who have
to struggle to keep a straight face ...
Some applicants just don't appeal to women ... A couple of weeks ago, in "I'll be back!" But he never went away: Lundbeck fails to terminate the Terminator", here, this Kat reported on a bizarre attempt to get Mr Justice Arnold, of the Patents Court for England and Wales, to recuse himself on the basis that he might be inordinately influenced by the fact that the expert witness of one of the parties supervised some of his undergraduate work back in 1979, when he was reading Natural Sciences at Oxford.  Following a full and magisterial analysis of the relevant law, Arnold J dismissed the application.  However, even more bizarre than the application itself, in this Kat's view, was the decision of the applicant to appeal it.  The Kat now has it on the excellent authority of none other than Merpel herself that the appeal was dismissed by the Court of Appeal, after that noble court had considered the ground of appeal with a suitably straight set of faces for a full five minutes. The constitution of this Court excited Merpel who, being a female Kat, is also something of a feminist: sitting with the sole male judge (the Chancellor of the High Court, Sir Terence Etherton) were two Ladies Justices of Appeal, Lady Justice Hallett and Lady Justice Sharp.  Is this, asks Merpel, the first time an appeal in any IP proceedings in the United Kingdom has been dealt with by a predominantly female tribunal?

Oxford is famed not only for its intellectual
life but also for its high density of cyclists ...
Heavyweights go head to head, if not brain to brain.  The case discussed above in the context of recusals -- Resolution Chemicals v Lundbeck -- is one which, this Kat confidently predicts, will make the pages of Scientific American, New Scientist and plenty of other journals where the bright light of patent litigation rarely penetrates.  This is because the two opposing experts are going have to testify about the state of knowledge of the person skilled in the art with regard to Baldwin's Rules for ring closure.  Baldwin's Rules go back as far as 1976 and the expert on one side is the legendary Sir Jack Baldwin himself.  Opposing him is Professor Stephen Davies, Sir Jack's successor as Waynflete Professor of Chemistry at the University of Oxford and a pretty legendary figure in his own right.  In this Battle of the Titans, each professor will be pitting his wits, his knowledge and his reputation not only against his opposite number but also against highly skilled counsel for each side who will be subjecting each of them to a high degree of rigorous examination and cross-examination.  And who said patent law isn't interesting?

The IPKat's friends at leading Indian IP weblog SpicyIP have emailed him excitedly to tell him that they've got a brand new website at, all handsome, shiny and free of all blogpots [the IPKat and Merpel have been urged to do likewise for some years now, but they're generally too busy generating content, or trying to, to focus on what might indeed be a much-needed redesign].  Shamnad and friends have also kickstarted SpicyIP's OpenIP initiative in a big way. Take a look here and, at the blog's Resources facility, here.

When damages will cost you nothing.  The Queen Mary Journal of Intellectual Property, published by Edward Elgar Publishing, has a most generous and endearing custom of making one article in each issue freely available to all-comers, whether they subscribe to this excellent publication or not.  This time round, the offering consists of an article on one of this Kat's favourite topics, "‘Damages’ in European law and the traditional accounts of profit", written by Katfriend and scholar Phillip Johnson (Associate Professor of Intellectual Property, University College Dublin; Visiting Senior Fellow, Queen Mary University of London).  You can read it in all its glory here.  According to the abstract
"The award of an account of profits has a long and distinguished pedigree in equity and law. However, the law governing enforcement and remedies is now subject to the Enforcement Directive (2004/48) with an account of profits falling under Article 13. The implications of the Directive and the changes it has brought still remain unclear and are yet to be fully appreciated as the Court of Appeal’s decision in Hollister v Medik Ostomy [2012] EWCA Civ 1419 made clear."
Note for academics and connoisseurs: an earlier draft of this paper was first presented at the CIPIL Spring Conference 2013 ‘What’s New in IP Remedies?’, Cambridge 9 March 2013.

"Don't mention the Law ..."
The Law that Must Not Be Mentioned.  In "Pause for Thought: Unlawful Trade Mark Examination", SOLO IP's Barbara Cookson reminds her readers (and indeed this Kat) that the Office for Harmonisation in the Internal Market (OHIM) is not above the law, and that this normally respectable and conscientious body is persisting in its egregious flaunting of an express provision of the Community Trade Mark Regulation -- the little-regarded Article 38(7).  The IPKat has himself written on this topic and remains miffed that, despite the promptings of a number of subsequent blog posts and tweets, he was not favoured with any sort of response.  Come on OHIM, if you won't tell the Kat, then at least listen to the lady and give her an answer.

Galen of Pergamon
Around the weblogs.  This Kat was unfamiliar with the term "galenic exemption" till he read Stefano Barazza's PatLit piece on the legality of pharmacists supplying medicines with an active patented ingredient in order to meet an individual patient's need -- a topic on which the Italian Supreme Court has recently ruled.  On the same blog Michael Thesen narrates a recent confirmation by the German Bundesgerichtshof that a document per se does not constitute a plea or an argument.  Elsewhere, on the 1709 Blog, fellow Kat Eleonora announces the winner (and publishes the best entries) in her "Original is ..." competition.   The winning entry is by Katfriend Pedro Malaquias, but this Kat also has a sneaking affection for the entry from Tom Bishop, of the Royal College of Surgeons of England.  The SPC Blog has been busy of late, with updates on patent extension in Cyprus and Canada as well as a happy post from Mike Snodin (Avidity IP), who managed to get the UK Intellectual Property Office to swallow one of his favourite arguments.

1 comment:

Wayne Condon, Griffith Hack Lawyers. said...

The mind boggles as to how the debate between Professors Baldwin and Davies would play out if the matter were being heard in Australia - the debate would be in a " hot tub" !

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