Monday miscellany

Just over a month ago (in a coda to "'Hungarians' and Hungarians attack the CTM"), the IPKat mentioned a Hungarian Patent Office decision, CITY INN v C CITY HOTEL, which preferred the approach taken by the Benelux Office for Intellectual Property (BOIP) in ONEL v OMEL to the conventional wisdom of most of the rest of Europe and concluded that a Community trade mark is not genuinely used if it is not used in more than one country within the European Union. The IPKat now understands from a well-informed but discreetly anonymous source that the Hungarian Patent Office decision has become final and will not therefore be appealed. In other words, the best bet for a swift and authoritative resolution of this issue is for ONEL v OMEL to go all the way to the European Union's Court of Justice.


The invention of Dr Nakamats. The IPKats are grateful to their talented friend Grégoire Marino for this link to a trailer for a film -- not yet released -- entitled "The Invention of Dr Nakamats". Dr Yoshiro Nakamatsu, it may be recalled, is dubbed "the most prolific inventor in history", reaching a lifelong total of 3,500 patents this month. Readers are entitled to form their own opinions ...


Another talented friend of the IPKat is Chantal Morel (the eponymous Morel of Amsterdam IP practice Klos Morel Vos & Schaap). Chantal writes to inform him as follows:

"The almost endless series of olanzapine cases (inter alia Eli Lilly patent EP 0 454 436) has now produced an interesting sequel in the Netherlands. The decision of the Dutch District Court, The Hague, handed down this Thursday, nullified the Dutch part of the European patent and the Dutch supplementary protection certicate (SPC) on grounds of lack of novelty. Eli Lilly's patent and SPC regarding olanzapine were found to be invalid since the substance olanzapine was already directly and unambiguously disclosed in the earlier Schauzu publication. An error in the structural formula depicted in Schauzu would, according to the Court in The Hague, immediately be recognized by the skilled person -- who would also directly and unambiguously know how to correct that mistake, based on the Schauzu publication. There is no need for the skilled person to seek confirmation in an external document since he will not have reason to doubt the technical reality of the Schauzu publication (and the external document at issue does not immediately show that the Schauzu publication in fact contains a second mistake, which would deprive it of its novelty destroying character). On this basis the Court concluded that the Schauzu publication discloses olanzapine as one of its compounds.

In its assessment, the Court took into account the EPO case law on flaws and mistakes in disclosures (T 89/87, T 412/91, T77/87, T 591/90).

The Court also admitted that its decision deviated from earlier decisions in the United States, China, the Czech Republic, Slovakia, Romania, Ukraine, Russia, Germany, United Kingdom, Austria and Spain, giving a brief explanation of decisions in four of these jurisdictions. It referred among other things to the decisions of the German Bundesgerichtshof and the Court of Appeal for England and Wales, upholding the corresponding German and UK patents, as well as to the Canadian decision that nullified the patent as a non-valid selection invention (a ground that was raised in the Dutch proceedings as well but is not addressed in this decision)".

Thanks, Chantal, says the IPKat, who expects a comment or two on the deviant Dutch from some of his more conventional readers.

The current (April 2010) issue of Oxford University Press's monthly publication, the Journal of Intellectual Property Law and Practice, are now available to subscribers online (you can view the contents here). The Editorial, "The Enemy Within?", takes a look at some possible threats to the integrity of Fortress Europe which have sprung up from the Union's intellectual property system itself. You can read it in full here.