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.

Monday, 8 September 2014

Monday miscellany

Of secret disclosures, share deals and deputy judges.  "Disclosing business secrets to share purchasers" is an IP Draughts post by the ever-perceptive Mark Anderson, it being a review of the recent ruling in Richmond Pharmacology Limited v Chester Overseas Limited and others [2014] EWHC 2692 (Ch) noted by the IPKat here.  In his concluding passage Mark asks a question that has long troubled this Kat, who has occasionally asked it too, and Mark offers three possible answers:

Why do the courts sometimes give important questions of contractual interpretation to deputy judges and not to proper (ie full-time) judges? Is it because:
1. Most judges have little professional experience of drafting and negotiating commercial contracts, and therefore there is no real advantage in giving such a case to a full-time judge. This is unlikely to be an acknowledged reason (!)

2. Such questions are not considered particularly significant by the judge in charge of the list, as they are considered to raise few questions of public importance. Contracts are mostly private matters for the parties. Therefore they can be delegated to a deputy judge [Mark adds that, in his view, the present case has some public importance in the context of parties’ obligations in mergers and acquisitions, these being a significant part of the commercial life of the country].

3. Such cases are easy to manage and decide, and therefore suitable for deputy judges. Sometimes the deputy judge is being assessed for his or her suitability for promotion to a full-time role ... and cases of this kind are good tests of judicial calibre.
In the interests of transparency, it would be good if a listing judge (past or present) would comment on this issue.
To most litigants, all judge look pretty much
alike -- but they have their own pecking order ...
At the time of posting this item, no-one (and certainly not a listing judge) has posted any comments. This Kat hopes that someone well informed [or highly opinionated, adds Merpel] will offer some appropriate words of wisdom or, failing that, the truth.  Another interesting question relates to the fact that the choice isn't only between a real, full-status judge and a deputy coming off the substitutes' bench as it were and deciding the case: the choice in IP-related proceedings in England and Wales is also between a specialist IP judge and someone who may be a good soul and and indeed a good lawyer but who doesn't know his prior art from his elbow.  Is it better to have a real judge who doesn't know about IP and has no experience in the field or a deputy judge who has been brought up to speak the language of this specialist area?  Thoughts are welcome, but comments are even more so.

IP myths: time for some debunking?  Earlier today, in "Trade Secrets: even more exposed", the ICC was said to have published a document stating that "it is estimated that 70 per cent of the value of companies’ intellectual assets stems from its trade secrets". A couple of readers have asked where this figure comes from. This Kat's hunch is that, whether it was true or not when first stated, it has become "officially" true as a form of traditional knowledge that has been endorsed by generation upon generation, as it were, and has never been contradicted.  Anyway, there's another piece of traditional knowledge which has just come in for a bit of a hammering: the statement that 80 per cent of technical information is found only in published patents documents and is never published elsewhere.  On Patinformatics, Anthony Trippe does some investigation of his own. In the field of chemical substances, it appears that the true figure for information published only in patent documents is around 95 per cent.

Well done! It's good to be able to acknowledge the efforts of the MARQUES Class 46 weblog, which just not only reached the 4,000 email subscriber mark last week, but positively smashed its way through it. This European trade mark weblog, run by MARQUES members and supporters (including two current and one emeritus Kats, plus one recent guest Kat), also has a searchable database of getting on for 3,800 items -- mainly case notes -- stretching back to November 2007.

Getting primed on the
Apple litigation ...
Basic IP litigators: back to school.  Another Chris, this time Ryan, writes to ask the Kats to remind potential candidates about the Basic IP Litigation course run by the Nottingham Law School, at Nottingham Trent University, for Trade Mark Attorneys. The Law School now finds that there are places free on this course, which runs from 15 to 19 September, which it is able to offer to patent attorneys. The course has been accredited by IPReg, the body that oversees all sorts of things that patent and trade mark attorneys do, with the creditable exception of their Christmas parties.  Adds Chris: "Anyone wishing to take advantage of this opportunity (or the two courses dedicated to patent attorney students which are scheduled to take place in January and June next year) should follow this link".

Another reminder comes from fellow Kat Eleonora that, despite the best encouragements from all and sundry, the number of submissions entered in response to her Copyright&Technology contest is lower than we had all hoped.  Since today is the final day for submissions, do please have a go! There's a worthy prize on offer, apart from the kudos of winning.  Details of the competition, the prize and anything else you might be worrying about can all be found here

Not so naif.  From our friend Luca M. Geoni (Porta, Checcacci & Associati SpA, Milan) comes a first-hand account of an attempt to deal with one of those pestiferous pseudo-official letters from not-quite-IP-offices.  Luca writes:
"As clients are submerging me with the copies of the scam mailing they receive from all over the world, for the second time I tried to stop one of them, namely OHMI, via the “cross border complaint system” existing among the European Bodies for regulation of advertising. As a matter of fact I informed the Italian Istituto per l’Autodisciplina Pubblicitaria (IAP) of the mailing and the body found it actually misleading. As the address mentioned in the scam was British, the IAP transmitted the claim to the Advertising Standards Authority (ASA), which performed some searches and found that, despite a British address being mentioned, the seat of the company was actually based in Sweden. The ASA then transmitted the claim to the Reklamombusmannen in Sweden buy nothing could be done, because the company wasn’t recorded in the Company Register. This episode shows that such scam mailings are not naif: they hide a very complex organization". 
Thanks so much, Luca, for sharing your experiences with us. The UK Intellectual Property Office had a small but satisfying victory of its own earlier this year [noted here], but it that was a rather less sophisticated operation, it seems.

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1 comment:

Anonymous said...

"it has become "officially" true as a form of traditional knowledge"

Um, that has been traditionally called propaganda, and is only "true" in the Orwellian sense.

I would hope the difference on a legal blog would be not only noted, but highlighted (maybe in that nifty bold red!)

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