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.

Thursday, 26 June 2014

Fed up with the footie? Here's something to read

The FIFA World Cup has only been up and running for a couple of weeks, and it seems to this Kat that numerous people are becoming quite sick and tired of it. Some resent the saturation coverage on TV, radio and online; others are just sore that their own team has been eliminated, or jealous that a rival nation of footballers whom they consider inferior has progressed further than their own team.  In any event, if you press the 'off' button and wander off in search of something better to so, here is some suggested reading matter:

Overview of the appeal proceedings according to the EPC. This is the title of a new book by Hugo Meinders, Ingo Beckedorf and Gérard Weiss, published by the Dutch Publishers H. Tel, from Haarlem. As this Kat has observerd elsewhere, it's the same book three times over: if you enjoyed reading Hugo Meinders' bit in English, you can check it out in the more businesslike-sounding German version by Ingo Beckedorf and then slip effortlessly into the romantic lilt of Gérard Weiss's French. At any rate, the publishers like it -- and this is what they say:
"... Overview of the Appeal proceedings according to the EPC is the first concise overview of the procedures before the Boards of Appeal of the EPO written by members of the boards. It is published in English, German and French in a single volume. It is available in paperback form. A discount of 5% will be given on orders for 5 or more copies.

The Rules of Procedure of the Boards of Appeal of the European Patent Office were substantially revised in 2003. These Rules make it clear that the function of the Boards of Appeal is a judicial one, namely the review of the appealed decision. Thereto, the proceedings are essentially in writing and the case must as complete as possible at the early stages. They are more a judicial review of the decision than a continuation of the administrative first instance proceedings, particularly in opposition-appeal. Hence, the appeal proceedings are substantially different from the first instance proceedings, a fact not generally appreciated by parties attending appeal proceedings.

The book provides an easily readable overview of the appeal proceedings, in the three official languages of the European Patent Office, which helps in understanding the nature of the appeal proceedings before the Boards of Appeal. The book also contains the complete text of the Rules of Procedure of the Boards of Appeal in the three official languages and an alphabetic index for each language.

The Overview of the Appeal proceedings according to the EPC is indispensable for patent attorneys and lawyers involved in appeal proceedings before the EPO [if practitioners purchased all the books that were described as "indispensible", they'd be quite impoverished by now -- but with great libraries]. It is a reference book both for the practitioner and the trainee".
It's an easy read;  it is also extremely well equipped with marginal references that enable the reader to discover the source of what the authors say without making the text look fussy.  The relative brevity of the text, its clarity of lay-out and the appearance of a handy index all combine to make the reading experience quite a pleasant one.

Bibliographical details: ISBN  978-90-78310-09-9. 275 pp. Soft covers with fold-over flaps to tuck into the volume so you don't lose your place. Price: 55 euro. Rupture factor: very low. Book's web page here.

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Selected Chinese Patent Cases, translated into English by Haining Song and Seagull Haiyan Song, has been compiled by  Editor-in-chief Dongchuan Luo. This reviewer has had some bad experiences of books addressing Chinese IP law; most are out of date by the time they are published, given the problems of translation as well as the time-lag engendered by the normal production process. Many also seem to contain mainly recitations of information that is either bland or already known by the reader (much the same stuff as official press releases are made of). Even more are inescapably dull.  Coming to this book with baggage consisting of the low expectations caused by the criteria listed above, this reviewer was quite pleased to discover that this book was not one of the worst offenders; indeed, apart from the perhaps unappealing shade of green on the cover, Selected Chinese Patent Cases was not an offender at all.

What will the reader find in this book? The publisher's web blurb says it all:
"When non-Chinese lawyers complain of “lack of transparency” in China’s IP judicial system, what they are actually complaining about is a lack of good translations of Chinese judges’ decisions [Merpel disagrees: in her view, most people are complaining about the fact that they can't see how courts and administrative bodies reach their decisions -- she has never heard anyone apart from the occasional legal researcher complain about the lack of good quality translations. But never mind ...]. Now at last, two renowned and experienced US–China intellectual property attorneys – both fluently bilingual – take the giant step necessary to bring China’s modes of handling intellectual property disputes into the international mainstream with excellent translations of 20 landmark Chinese patent-related cases, all decided during the past 10 years. Also included and translated are specially commissioned commentaries by the exact judges who decided each case, clearly explaining the “behind-the-scenes” reasoning they used [Merpel pricks up her ears when she hears phrases like "behind the scenes reasoning". Isn't this very like, er, lack of transparency?]. The patent issues covered in these cases include the following:
  • procedures and remedies for patent infringement;
  • determination of “a clerical error”;
  • how to determine similarity between designs;
  • how to properly submit and use evidence;
  • amendments that change the original technical solution;
  • novelty and inventiveness;
  • avoiding improper “hindsight” in assessing inventiveness;
  • interpretation of a claim’s technical terms;
  • doctrine of claim differentiation;
  • patent infringement under the doctrine of equivalents;
  • test standard for deciding identity or similarity between designs;
  • prior art defense;
  • use of a patented process for a medical regulatory review;
  • identifying the manufacturer and seller involved in patent infringement;
  • intentionally manufacturing or selling customized key parts of a patented product;
  • patentee’s liability for improper enforcement of patent right; and
  • preliminary injunction against the import of a patented product.
A detailed introductory chapter authored by Justice Dongchuan Luo and two other IP Judges explains the historical development of the Chinese patent system and describes enforcement mechanisms and procedures, both administrative and judicial. Appendices provide English translations of the most important legal sources of patent law in China. To some readers this sophisticated body of modern Chinese patent law, with its sensitivity to well-established international consensus, will come as a revelation. To these and others, and especially to patent law practitioners, jurists, and academics worldwide, this book will quickly become a cornerstone resource".
This seems a fair enough account, though it doesn't mention the fact that each page bears the marks of two sets of pagination -- something that is not impossible to master but which will surely cause headaches for careless dissertation writers and footnote chasers in years to come.

Bibliographical data: hardcover, xxv + 328 pages.  ISBNs 9041150145 and 13: 9789041150141 360. Price US$150.  Rupture factor: not too high, but this book is heavier than you imagine. Book's web page here.

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Intellectual Property, Unfair Competition And Publicity Convergences and Development, edited by Nari Lee, Guido Westkamp, Annette Kur and Ansgar Ohly, is another of those Edward Elgar Publishing compilations that seem to flow effortlessly from conception to execution in the hands of reliable, respectable academics. According to the publishers:
"Dealing with rights and developments at the margin of classic intellectual property, this fascinating book explores emerging types of regulations and how existing IP regimes inform and influence the judicial and legislative creation of “substitute” IP rights.

The editors have carefully structured the book to ensure that there is a thorough analysis of how commercial values arising at the margins of classic IP rights are regulated. As new regimes of regulations emerge, the question of how existing IP regimes inform and influence the judicial and legislative creation of “substitute” intellectual property rights is explored. By doing this, the contributors interrogate the very boundaries that constitute what IP rights traditionally protect and cover. Should all investments in anything intangible and “intellectual” – such as product shapes, personality, data and organization of an event - be protected as property? Should there be qualitative differences among the types of investments and achievements? These are just some of the interesting questions addressed in this important new book".
This book is scheduled for a fuller review in time to come ...

Bibliographic data: h 2014 384 pp Hardback 978 0 85793 261 7 ebook isbn 978 0 85793 262 4 Hardback price $145; online price $130.50. Rupture factor: small for the hardback, non-existent for the e-book. Web page here.

3 comments:

Anonymous said...

*confused* Why Themis holds scales so lower than a sword?

Anonymous said...

Purely a guess, but would it not make a better story that the access to justice is easier to climb to (low hanging fruit) while the sharper edged sword is more effective (dangling over your head, ready to drop)...?

Or perhaps, the danger of the sword (power corrupts) merits holding that sword more out of reach...?

Anonymous said...

RE: would it not make a better story

my first comment was prompted by the idea that Themis is an allegory, that is no physical parts or parameters to be understood literally/directly.

sort of: domination of objective justice. if needed, enforced.

in a way, it is important not to take Themis word-for-word, since reality is more complex and modern law theories would have quite some comments to such a justice definition.

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