Monday miscellany

Last week, in "Dear Interest, Dear Policy -- a case of taking the epistle", the IPKat commented unfavourably on the curious practice that had developed in the Intellectual Property Office of addressing circulars to "Dear Interest". Having received two more circulars from the same source, the Kat is now thrilled to report that the "Dear Interest" mode of address has now been eliminated. Thank you, IPO, says the Kat!

Do you have complex legal documents which require translation from French into English? A friend of the IPKat, who has a background in research and who has taught for some years at a leading British university, is currently offering this service. He has extensive experience of translating and summarising proceedings involving enforcement of contracts and judgments, including arbitral awards. If you'd like to be put in touch with him, email the IPKat here with the subject line "French translation" and he'll forward your expression of interest.

Merpel interjects here to say, the next two items are, respectively, about orange and apple.  Let's hope these reports bear fruit ...

Here's a Community trade mark application that's a little off-colour...  in Case T-97/08  KUKA Roboter GmbH v OHIM,  decided last Monday by the General Court, the OHIM Board of Appeal was vindicated in its decision to refuse registration of the colour (right), described as a shade of orange, for "articulated robots" in Class 7.  Applying the Court of Justice principles in Case C-104/01 Libertel, the General Court agreed that this colour was not unusual in the sector of industrial robots and plant construction; nor was it, per se, exceptional to such an extent that it would be perceived as striking in the sector considered. The small range of colours available meant that colour registrations would be allowed only exceptionally -- and KUKA hadn't proved that this was an exceptional case.

... and here's a Community Plant Variety Office decision that's also off-colour.  In Case T-135/08, Schniga GmbH v Community Plant Variety Office, with interveners Elaris SNC and Brookfield New Zealand Ltd, also dating back to last Monday, the General Court annulled the Office's ruling that a plant variety right should not have been granted for its Gala Schnitzer apple (left) in that the applicant Shniga had failed to comply with requirements made in its individual case.  The Office had not explicitly clarified that the plant material which was supplied for examination had to be free of viruses.  Since the Office had accepted a European plant passport in lieu of the required phytosanitary certificate in connection with the first batch of material -- which contained latent viruses -- it had discretion to let Shniga submit a second set of virus-free samples for examination.

A reminder re Forthcoming Events.  Yes, the IPKat's Forthcoming Events side bar has been relocated here.  It has only been moved to a bigger page with more space than is available in the cramped confines of the side bar.  Do visit it, please!

Data exclusivity: a regular reader rights: "I am regular reader of the IPkat blog.  Here I have a query about European data exclusivity for new products. My query is whether data exclusivity of 10 years will apply to new products or not like isomer dugs ex: arformoterol, armodafinil, dexlansoprazole etc… These drugs got three years exclusivity in US. I searched for these dugs in EMEA but I didn’t get any approval information. Kindly clarify my query".  Can any readers assist, ideally by posting their answers below.

It's not only the annual season for international IP diplomats, government ministers and other important IP personages to migrate to Geneva.  It's also the season for special plaudits for some of the better World Intellectual Property Organization's initiatives too.  The IPKat is pleased to learn of the launch of a new public-private partnership which aims to provide industrial property offices, universities and research institutes in the least developed countries with free access to advanced tools and services for retrieving and analyzing patent data. Specially low prices for institutions in certain developing countries that are too rich for least-developed status are also being offered.  The IPKat's pleased: the more use is made of patent data, the more the patent system's information-disclosing dimensions can be put to good use.  Merpel asks, can I outsource my patent data retrieval and analysis business to an institution in one of the least developed countries?

Around the blogs.  Just a quickie to note that IP Tango, the specialist Latin-American weblog, supercharged by the addition of a couple of bright and enthusiastic contributors, managed a remarkable 14 posts last week [if you can't read the Spanish bits, you can use an online translator].  This English/Spanish bilingual blog is quite special, and the IPKat is pleased to see it grow.  If you're a patent attorney practising before the European Patent Office, PatLit has a little lament that might interest you, here.
Monday miscellany Monday miscellany Reviewed by Jeremy on Monday, September 20, 2010 Rating: 5


  1. The defintion of "new active" can be found in Annex III to Vol 2a Notice to Applicants (

    I'm afraid what constitutes such a substance will most likely depend upon fact and degree in each instance. In relation to the enantiomer products to which you refer, the EU General Court has a similar question before it in the eszopiclone litigation brought by Sepracor.

    Hope this helps.

    Dr Gareth Morgan, DLA Piper UK

  2. Rightly or wrongly, Jacob LJ has had something to say in obiter on the subject. See levofloxacin at the Court of Appeal GUK v Daiichi [2009] EWCA Civ 646: "So from the point of view of patent law levofloxacin was a new product. And it was a new product as a matter of commercial and practical reality too – no-one, without the invention, could make it. And from the medical point of view it was a new and better medicine. Obviously before it could be marketed it would have to go through trials – its properties (including for instance important characteristics such as bioavailability – which depends or may depend on solubility – and toxicity) had to be established. So it needed a new marketing authorisation. In sum it was a new product from all practical points of view."

    Not sure that this is quite correct in the light of what Dir 2001/83 and the Notice to Applicants says.

    Overall, there appears to be a degree of uncertainty on the subject which is ripe for exploitation, confusion, and thus litigation...

    ...such as for escitalopram.

  3. Having recently translated a 14 page French house sale contract into English I can attest to the verbosity and use of archaic language in French legal documents, and the difficulties of preparing DIY translations thereof. Be prepared to encounter obscure verb forms such as the pluperfect subjunctive, and words that even native French speakers who are not familiar with legal terminology will not understand and which will not be found in ordinary French-English or native French dictionaries, or the ususal on-line translators. Many were identical to equally-obscure English legal words, no doubt a consequence of our common Norman-French heritage: however, some I was only able to find in an ancient illustrated "Dictionnaire Larousse" dating from the 1870's that I had only bought for its woodcut illustrations!


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