|Napster: cats are|
the coolest brand
|Searching for the legal downloading platform|
Passionate about IP! Since June 2003 the IPKat weblog has covered copyright, patent, trade mark, info-tech and privacy/confidentiality issues from a mainly UK and European perspective. The team is David Brophy, Merpel, Eleonora Rosati, Nicola Searle, Darren Smyth, Annsley Merelle Ward and Neil J. Wilkof. You're welcome to read, post comments and participate in our community. You can email the Kats here
For the half-year to 31 December 2015, the IPKat's regular team is supplemented by contributions from guest bloggers Jani Ihalainen, Nikos Prentoulis and Mark Schweizer.
Birgit Clark is on Sabbatical till the end of the year
Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.
|Napster: cats are|
the coolest brand
|Searching for the legal downloading platform|
December is a tricky time of the year. In December 2012, just before Christmas, and just before this Kat rejoined the blogging team, Arnold J handed down the decision Microsoft Corp v Motorola Mobility LLC  EWHC 3677 (Pat) (21 December 2012). It is an electroniccy case of the variety that makes this Khemical Kat want to run and hide. But run and hide he can do no more, because, almost exactly a year later, the Court of Appeal has upheld the decision, handed down a couple of weeks ago as Microsoft Corporation v Motorola Mobility LLC  EWCA Civ 1613 (11 December 2013).
Spoiler / executive summary – Arnold J construed the claims broadly on which basis Motorola’s patent (relating to synchronisation of message statuses across multiple messaging devices) was found to be invalid, but would have been infringed by two Microsoft products, EAS (Exchange ActiveSync) and Live Messenger. On a narrower construction advanced by Motorola but rejected by Arnold J, the patent would still have been invalid but would not have been infringed. In relation to EAS, Microsoft in any case had a licence, because Microsoft’s licence from Google in 2009 extended to this patent when it was acquired by Google when Google purchased Motorola Mobility Inc. in 2012. Motorola’s appeal of this decision was rejected by the Court of Appeal.
Before turning to some details of the case, this moggy would like to look at the
feline human interest angle. It is noteworthy that the leading judgment is delivered by none other than the Chancellor of the High Court, Sir Terence Etherton (Jackson LJ and Kitchin LJ concurring). While Sir Terence is no stranger to IP matters (his most recent foray being noted by this embodiment of the IPKat here; but who can forget his judicial certification as “erudite” reported by fellow Kat here?), it is unusual for the leading judgment in a technical appeal to be given by someone other than the former Patents Court judge, when one is sitting. If you are not a patent specialist (and even if you are), it is never going to be a bad idea to uphold a decision of Arnold J and sure enough that is what happened.
So the patent was concerned with how synchronise information such as the status of a message (eg "read" once the message has been opened) between multiple devices of a user. Although the patent was concerned mainly with pagers, the claims were not held to be so limited, and would equally be applicable, for example, to email on mobile devices.
Now we get to the bit where you need to see Claim 1. So here it is (as in the judgments broken down into integers and with reference numerals omitted).
[A] A method of synchronizing message information among a plurality of transceivers comprising the steps of:There is a pretty picture showing an embodiment of this method too.
[B] transmitting by a wireless messaging infrastructure a first message having a first status;
[C] in one transceiver of the plurality of transceivers, changing the first status of the first message to a second status responsive to an input to the one transceiver, and
[D] transmitting a second message indicative of the second status;
[E] in the wireless messaging infrastructure, receiving the second message;
and characterised in that the method includes the steps of
[F] in the wireless messaging infrastructure, responsive to receiving the second message, transmitting a third message indicative of the second status; and
[G] in at least one other transceiver of the plurality of transceivers, receiving the third message, and
[H] responsive to receiving the third message, changing the first status of the first message to the second status.
I am satisfied in those circumstances that it would be wrong to allow this new point of interpretation to be advanced on the appeal since it would be quite wrong to permit Motorola to advance the linked and consequential attack on the Judge's findings of obviousness over PCMAIL and IMAP4.
Bearing in mind the respect which is due to decisions of the German courts on issues of patent validity and infringement, it would have been of considerable value to know the detailed reasoning of the German Federal Patent Court in reaching its decision on 13 November 2013. In the present absence of that detailed reasoning, however, I do not consider it is safe for either side or this Court to rely on the German proceedings as to the correct outcome of this appeal. For that reason I shall not refer to them again in this judgment.
“An obscure melon once cultivated by Buddhist monks in China to sweeten tea could give the $8 billion U.S. diet soda industry a shot at winning back consumers concerned about artificial ingredients”.Within Ms Lopes’ compact story is an engrossing tale of how IP plays out in the broader context of products, markets regulation and legal rights. Forget the IP battles between the hi-tech heavyweights -- Apple, Google, Samsung and the rest. For those Kat readers who simply like a great IP story, this is the one for you.
|Copyright thoughts for Marcel, even |
during NYE toast: do the
flowers on his glass ...
|... infringe copyright in those on |
Perrier Jouet Belle Epoque
|Unrelated to the Disney|
movie, the AmeriKat
is also frozen
"On November 1, 2013, less than three weeks before the Hollywood premiere of FROZEN on November 19, Phase 4 theatrically released an animated picture entitled The Legend of Sarila, which generated minimal box office revenues and received no significant attention."
|Disney's Frozen logo|
|Phase 4's revised logo|
"Rockstar's litigation campaign has placed a cloud on Google's Android platform; threatened Google's business and relationships with its customers and partners, as well as its sales of Nexus-branded Android devices."According to the complaint, Rockstar Consortium is a limited partnership organized and existing under the laws of Delaware, but based primarily in Canada. According to its website, the consortium is a "patent licensing business".
"Among the myriad companies ensnared in Rockstar's patent dragnet are customers and partners of Google who use the Android platform in their devices, including ASUS, HTC, Huawei, LG, Pantech, Samsung and ZTE."Last week Bloomberg reported that unnamed sources were reporting that Rockstar was holding discussions to a sell a portion of the Nortel patents, but such a sale would likely not include the patents at suit.
- standardizing formal requirements for international design applications
- establishing the USPTO as an office for filing international design applications
- provide for substantive examination by the Office of the applications that designate the US
- provide provisional rights for published international design applications that designate the US
- set the term of protection at 15 years
|The District Court's Opinion got this|
Kat's attention despite being on holiday.
|It's Katawards day!|
|Li(c)king for sure, |
but also communicating?
|End of year: always a good time to catch up|
with those little things that might otherwise
permanently escape a busy Kat's attention ...
|The official motto of the|
new European Patent Package
|The AmeriKat getting her teeth into some banking|
"If the situation is not resolved, output, investment and employment will be lower than would otherwise be the case, with adverse effects on economic performance in the short and longer term."The study found that IP is an "under-appreciated asset class" and is, in effect, "unbankable". Not a good start. However, the report noted that IP and intangibles are valued highly by equity investors and commercial lenders. A 2006 ACCA report stated that "intangible assets provide the basis of superior profits and enterprise value beyond that determined by competitive market conditions". However, IP was not considered the asset of first choice. Nevertheless, a high proportion of commercial lenders "felt more could be done with them - to improve control, inform appetite, or both".
1. IP and intangibles must be identified during the financing process - The first steps are to provide a means for companies to identify the assets they own, and to build information on IP and intangibles into the templates companies use when presenting information to prospective funders.
2. The value in IP needs to be taken into account - The obstacle that must be addressed here is to demonstrate, reliably and repeatedly, how an SME’s ‘real’ IP and intangibles may deliver value which bears no relation to anything that may be called an intangible on their balance sheet; this generally only shows a sunk cost
3. Due diligence guidelines can help to control costs - Guidelines will involve providing templates, training and/or access to professional advice at a cost lending margins can support, within a turnaround time that meets business requirements.
4. More effective charges should be part of the lending package - Legal templates and the resource toolkit will help lenders to achieve this at modest cost, firstly by providing appropriate wording for the instruments, and secondly by providing guidance on the procedures which must be followed when recording them to ensure their effectiveness.
5. IP markets and IP financing could be facilitated through infrastructure improvements - This is not a job for government - but solutions will require the co-operation of official registries and the establishment of administrative protocols.
6. On-going management of IP and intangibles should also be supported - The proposed toolkit needs to include measures to inform and encourage SMEs to adopt appropriate IP management practices.
7. Affordable risk mitigation strategies need to be encouraged - More detailed dialogue on the requirements of both lenders and insurers is urgently required, to ensure that commercial sector activity is able to provide workable and affordable solutions.
8. Asset-based finance techniques should be adapted for IP and intangibles - Alongside mainstream lending, where EFG is an obvious area of focus, asset-based and alternative financing methods should be prioritised for IP-backed finance interventions; these are the parts of the industry most accustomed to understanding and assessing individual assets and their value.
9. Steps to stimulate private investment need closer study - This work fell outside the scope of the current IP and finance project, but is clearly desirable as a follow-up stage.
10. IP demands joined-up thinking - The Intellectual Property Office exists “to promote innovation by providing a clear, accessible and widely understood IP system, which enables the economy and society to benefit from knowledge and ideas”. It therefore has an important role to play in scrutinizing Government and finance industry initiatives to boost lending, to ensure that the assets produced by knowledge receive appropriate consideration.
|Business Secretary Vince Cable|
"...Intellectual property is too important an asset to be undervalued by banks who are the main source of finance. That is why I commissioned a report to explore how we can improve SMEs’ access to capital. We will look carefully at its recommendations in order to better support this countries creators and IP-rich businesses"The report, although fulsome in setting out the problems facing SMEs, does not propose any substantive guidelines for institutions to follow, a uniform system for assessing and valuing IP across the finance sector or means or a taskforce to implement any system. The only recommendations are for a "resource toolkit" and "legal templates".
|Burt could not wait to open|
his Christmas present
|Joy! It was a Fix Copyright! |
|Alice Cooper: with|
friends like this ...
"has an interest in protecting intellectual property rights and is a member of the All-Party Parliamentary Intellectual Property Group. In 2010, he launched a national music competition, "Rock the House", one of the main objectives of which is to highlight intellectual property rights. The campaign has gained support from musicians such as Alice Cooper".It's obvious that Mike has friends in high places, so this Kat suggests that we be nice to him ...
Do any readers know anything about the factual background to this reference, or anything about the position taken by the Greek court ahead of its decision to make this very IP-meets-competition reference?What is the scope of ... Article 7 of Directive 89/104 (now Article 7 of Directive 2008/95) and of Article 13 of Regulation 40/94 (now Article 13 of Regulation 207/2009) in relation to the right of a trade mark proprietor to prohibit parallel imports into the EU and the EEA of its products which were first supplied or put on the market in a country outside the EU and the EEA, especially in the case of products with a large profit margin and price squeezing, as evidenced by large fluctuations in pricing policy, and/or where parallel imports may result in considerable reductions in prices to end consumers, for their benefit and the benefit of competition, as in the case of all types of spare parts for motor vehicles, in light of the effect, in isolation or combination, of: (a) the provisions of Articles 101 and 102 TFEU; (b) the provisions of Articles I, XI.1, ΙΙΙ.4 and XX(d) and GATT 1994 law in general; and (c) Articles I and [Χ]XIV GΑΤΤ 1994, especially as they extend the scope of the provisions of Article 7(1) of Directive 2008/95 and of Article 13(1) of Regulation 207/2009 to products put on the market in contracting parties of the GΑΤΤ 1994 and reciprocity issues arise between them?
* Recommended by the European Patent Office as reading material for candidates for the European Qualifying Examinations 2013
* Listed as a "Top Legal Blog" in The Times Online, March 2011
* One of only two non-US weblogs listed in the 2010 ABA Journal Blawg 100
* Court Reporter Top Copyright Blog award winner, November 2010
* Number 1 in the 2010 Top Copyright Blog list compiled by the Copyright Litigation Blog, July 2010
* Selected by United States Library of Congress for inclusion in its historic collections of Internet materials related to Legal Blawgs 2010
* Top Patent Blog poll 2009: 3rd out of 50 in the "Favourite Patent Blog" poll and 2nd out of 50 in the "Most-read" poll
* ComputerWeekly IT Law and Governance Blog of the Year 20 August 2008
* Best of the Blogs, Times Online, 21 August 2008
* Listed as one of Managing Intellectual Property magazine's Fifty Most Influential People of 2005, 2011, 2013 and 2014