Friday fantasies

Something to sing about --
even if it's just a few baas

All over New Zealand, trade mark folk are getting really and truly excited about the Madrid Protocol.  With effect from 10 December [which looks very much like this coming Monday], the Land of Sheep and Hobbits will be part of that elite club of nations which allow entities in other Madrid Protocol countries to file their international trade marks designating NZ as a territory into which they would like their legal protection to extend -- and New Zealanders will have the pleasure of designating other Madrid member countries in their own applications.  The IPKat's old friend Earl Gray (Simpson Grierson) has prepared a note on this development, which you can read here.


A good thick water-resistant coat, such as is possessed by your average sheep, might just come in handy for anyone thinking of responding to the following call:

"We are putting together a collaboration to seek funding from the UK Intellectual Property Office Fast Forward Competition to look at how to standardise and/or share what we can in marine renewable energy in order to reduce barriers and costs to entry and at the same time propose appropriate models for IP protection (and IP sharing) to enable investment.

The UHI's magnificent local scenery is best
appreciated on the one day each year
when it isn't raining  ...

We are seeking a suitably qualified, able, talented and reputable academic researcher in Law. We have been unable to identify suitable law academic thus far [Merpel hopes it's not the "reputable" requirement that's causing all the problems] and would appreciate any help in doing so. It is somewhat time-dependent as the funding competition closes on 14 December 2012 [which looks very much like the next available Friday], however, expressions of interest are most welcome even at this late stage. The idea is to fund a postgrad (junior research fellow) who will sit in the University of the Highlands & Islands in the Highlands (UHI) in their nascent School of Energy (close to the marine energy sector players) and will be supervised by the Law Academic (and guided towards appropriate models/policy/law etc) with input from various stakeholders".

If you are interested, and think you might be reputable and all those other things, do contact Elaine Morrison at the UHI by email here or Kate Macdonald by email here.

Design mystery: Merpel can't
understand why even one
business might want to make
glasses like this, let alone two

Around the weblogs. The MARQUES Class 46 weblog carries the full text of a statement directed to the European Commission's Michel Barnier by five leading IP representative organisations and urging him not to pursue consumer healthcare objectives through the indirect means of restricting the use of trade marks on consumer products [this is a somewhat indirect way of saying "no" to plain packaging, explains Merpel].  Meanwhile, Class 99 -- which is not yet part of the MARQUES portfolio but may well be in the not-too-distant future -- is having one of its hyperactive periods. Four pieces have already been posted today, including this note on the ruling by Mr Justice Arnold in CliniSupplies v Park that a patent-like set of claims was no way of defining the parameters of a protectable UK unregistered design, and a neat piece by Henning Hartwig on the calculation of profit-based damages in Germany.  Staying with damages but shifting from design to patents, Christopher Hayes' Current Intelligence note on the jiplp weblog, here, muses on the relationship between infringement damages and the state of awareness of the infringing defendant. Finally, Barbara Cookson, writing on SOLO IP, encourages readers to support the CIPA Journal's new editor, who faces a tough task.

As one JJ to another, this blogger always likes to know what Jeff John Roberts is up to.  Right now, he has just found out.  Writes Jeff:

"While a student at Columbia Journalism school, I did my thesis on the Google Books Settlement. My research included interviews with Googlers, lawyers, and librarians. I've since published this as an e-book for sale on Amazon and Apple, and am hoping the good Kats ["which ones might they be?", growls Merpel] might give it a mention. The approx 90 page story tells the rise and fall of Google's would-be Library of Alexandria and will be of interest to copyright types, librarians and anyone interested in reading or Google". 

The Journal of Intellectual Property Law & Practice (JIPLP) looks forward to reviewing it [author: please note!]-- but you don't have to wait till then in order to buy it.


Following yesterday's post on the decision of the Court of Justice of the European Union to uphold the hefty fine imposed on AstraZeneca for abuse of its patent-powerful position in the market for Losec (which you can read here), Sophie Lawrance of Bristows LLP --  a firm which has been closely watching this litigation  -- has sent in the following comment:

“One dominant position, two abuses, three cheers for the Commission? – It appears that the IP community may breathe a collective sigh of relief now that the reputation of Europe’s patent authorities has been again upheld by the Commission, at the conclusion of its long struggle to ensure that they are not “led into error” by the likes of AstraZeneca. But IP is not at the heart of the Commission’s approach which was yesterday definitively upheld by the Court of Justice. Among the more troubling aspects of the judgment is an endorsement of the concept that an IP right has “a significant exclusionary effect” even before the right has come into force, and that this damages “potential competition”. Leaving aside the contested SPC itself, the competition authorities appear content to undermine the value of patent protection by treating companies as potential competitors even before the patent protecting the original pharmaceutical compound has expired.

Moreover, the obligations on dominant companies when dealing with patent and regulatory bodies is now far from clear. The Court of Justice appears almost schizophrenic (or has something been lost in translation?) when it refers to AstraZeneca’s dealings with patent offices as being simultaneously “legally defensible” and “highly misleading” (paragraph 98). In any event, the Court made clear that “the onus” is now on companies to disclose “all relevant information”, relevant information being in particular, it is inferred, information which is contrary to the undertaking’s interests.

The conclusion to be drawn from the Court’s treatment of both abuses is that companies in a dominant position must be particularly careful about internal strategies which could have any tendency to delay generic entry or to render it more difficult. Companies will have to think carefully about where to draw the line between legitimate self-interest and the requirements of competition law”.

The IPKat thanks Sophie for her comments, and wonders why he hasn't received much email in support of the Court's decision.