Wednesday whimsies

"Purpose-bound protection for DNA sequences: in through the back door?" is the title of a major article in the Journal of Intellectual Property Law & Practice by Syngenta's Michael A. Kock which contains a critical analysis of the Opinion of Advocate General Mengozzi in Case C-428/08 Monsanto Technology LLC v Cefetra BV and others (the Court of Justice of the European Union will be giving a ruling later this year on this dispute, which arises from the importation into the European Union of soya meal derived from Monsanto's Roundup Ready patented soybeans). Given the topicality -- and indeed the immediacy -- of this article, JIPLP's publisher Oxford University Press has kindly agreed to allow free access to this article in order that all those who are working on this case, or who are affected by it, can conveniently read it. You can access the article via the JIPLP website here.

The Lambert Toolkit is designed as a means by which universities and businesses that wish to undertake collaborative research can more easily do so. To this end, the UK's Intellectual Property Office has posted this page on its website with some fresh links to model agreements and some handy guidance.

Sport et propriété intellectuelle/Sport and Intellectual Property is the title of the first volume in a series, 'Propriété Intellectuelle -- Intellectual Property', launched by the dynamic Swiss IP scholar and friend of the IPKat, Jacques de Werra. The book's website is here and its contents (in a happy blend of French and English) can be perused here. This work was the result of a bit of inspiration arising from a conference in February 2009, which sadly the Kat was unable to attend but the programme for which can be seen here.

For those who really love patents and take delight in their highways and byways, "“The Origin of Specis” (Patent Specifications)", by Tony McStea (Senior Patent Attorney, Global Patents, Givaudan Schweiz AG) takes some beating. This is an 193-page romp which also demystifies much of contemporary patent law, or at least makes the reader feel that it is he who is sane and that the patent system's crazy, rather than vice versa. You can read this document here.

The European Union's Court of Auditors has prepared Special Report No 1/2010, "Are simplified customs procedures for imports effectively controlled?" The IPKat had rather hoped that this 66-page report might have been full of information about simplified procedures for seizing suspected counterfeit goods and taking them out of circulation -- but it seems from the document, which you can read in full here, that customs have other things to concern themselves with and this is all about simplified procedures for importers, not customs, since IP doesn't seem to get a mention. In any event it doesn't look encouraging. According to the summary:
"... Traders who are authorised to use these procedures benefit from an accelerated customs clearance process, with the result that they have the goods at their disposal more quickly. Customs services place reliance on the correctness of import declarations and carry out fewer controls. The procedures are long-standing and widely used in the EU; in 2008 more than two thirds of all EU customs declarations for imports were made using simplified procedures.
... [S]implified procedures are not yet effectively controlled in the majority of the audited Member States. As such, there is no reasonable assurance of the correct collection of traditional own resources or that traders comply with the obligations deriving from the common trade policy.

The ... Commission had taken international standards into account and put in place an appropriate regulatory framework for simplified procedures, but this was not done until the end of 2008. As simplified procedures can be manual until the end of 2010, the application of an EU-wide automated risk analysis will only be mandatory from that moment. Guidelines for ex-post audits in customs are not yet complete and the Commission did not start dedicated inspection of simplified procedures for imports until 2008.

The audit shows that Member States did not apply a standardised approach for controls/audits at the different phases of simplified procedures and often used deficient methods for such controls/audits. The significant number of poor or poorly documented pre-authorisation audits identified (assessing the trader’s reliability by means of an examination of his accounts, records and systems before issuing the authorisation to use simplified procedures) increases the risk that unreliable traders can operate simplified procedures. The approaches used for checks during the processing of simplified procedures for the release of goods were varied and often of poor quality. Thus the controls were frequently ineffective and resulted in a high frequency of errors in the sample of imports tested by the Court.

In order to improve controls on simplified procedures the Commission should urge Member States to rapidly implement the recently-developed regulatory framework and guidelines, monitor their implementation and further enhance the framework in the light of the Court’s and its own audit and monitoring results".
The IPKat wonders how much use and abuse of this simplified procedure facilitates importation of counterfeit and infringing products. It would be good to hear from the Auditors on this point.

There's a new podcast from Copyright Clearance Center's Beyond the Book site, which features an interview with Robin Neidorf, the publisher of the new research study "Corporate Policies and Practices". Robin discusses management’s responsibilities to educate employees on the rights of data access and information interaction across various media within the corporate and home environments. Podcast here. Transcript here.
Wednesday whimsies Wednesday whimsies Reviewed by Jeremy on Wednesday, June 09, 2010 Rating: 5


  1. Thanks for posting “The Origin of Specis”, Jeremy. It takes a couple of clicks to get to on my system, but it's worth it - it is not only fairly light-hearted but it also seems the clearest description for a novice that I've ever read.

    A couple of minor quibbles. At paragraph 83 it doesn't really bring out that a thing infringes if it falls within the claims, and doesn't if it doesn't, which (barring a certain amount of wriggling) is the basic test for infringement. There's still some confusion at page 95 of the long version, which says "One of the most basic principles of patent law is that infringement is committed if the essentials of an invention are copied. In other words, a person cannot take a patented invention, make some minor changes that have no effect on the working of the invention and get away with it." The "essentials" are defined by the claims rather than being intrinsic to the description. And, of course, nothing need be "copied" in the copyright sense - the infringer need not have seen your ptoducts or your patent.

    Also, with regard to paragraph 49, a "specification" consists of the description, the claims and the drawings (if any) - "specification" is not the same as "description". And the comments of "you can't do this yourself, you need a patent professional" get a little patronising.

    But overall, three cheers for the author!

  2. Eery! The BPB's logo has a conspicuous resemblance with the one designed for the Commission Scolaire de Montréal (i.e. French school board).


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