Wednesday whimsies

Forthcoming events. Regular readers need no reminder that the IPKat has a Forthcoming Events list which is frequently updated and carries details of all sorts of IP events -- some of which are free or have substantial discounts for IPKat readers. However, in welcoming new readers we take this opportunity to alert them to this handy facility. 

On the subject of forthcoming events, here's a reminder that Scotland's WS Society (an independent association for lawyers and one of the oldest professional bodies in the world, with over 500 years of history) is putting on "IP Law – Inside and Out" on the morning of Thursday 25 June in the Signet Library, Edinburgh. Carolyn Jameson (in-house counsel with Scotland's first $1 billion web company, Skyscanner) is the keynote speaker; Katfriend Gill Grassie (Brodies) is in the chair. All sorts of experts are on the programme, including fellow Kat Eleonora.  Full details are just one McClick away, here.

And while we're about it, on 17 and 18 September 2015,  the first iClic Conference takes place in sunny Southampton, down on the English South Coast. It's called "Enrolling Internet Intermediaries in the Law Enforcement Process: Challenges and Opportunities", and again stars Eleonora plus a strong supporting cast. Interested? Click here for details.

Around the weblogs. BritishBlackMusic.com/Black Music Congress and CultureTalkClub, in association with City Law School, have created a Talking Copyright forum for 19 June in order to discuss the continually contentious topic of copyright term reduction, explains Ben Challis on the 1709 Blog: with Kwaku on the panel, anything can happen -- and probably will.  On the same weblog, Andy Johnstone reviews the latest developments in another long-term saga, the US debate over orphan copyright works. On the Class 46 blog, Nikos Prentoulis reminds us that the word Aspirin is not universally generic -- though the Greek product of that name was not infringed by the name or packaging and get-up of the competing pain-killer SALOSPIR. Some marks are always likely to get into trouble, though: Laetitia Lagarde tells us about one of them -- 'GEL NAILS AT HOME', for nail care products.

One thousand up.  As is well known, the IPKat and his friends have a warm affection for the Journal of Intellectual Property Law & Practice (JIPLP), which Jeremy edits, Eleonora deputy-edits and on whose Editorial Board fellow Kats Birgit, Darren and Neil sit.  Well, JIPLP's July issue has just been published (contents here) with a guest editorial from Neil (you can read it in full here), and the jiplp weblog -- which publishes all the editorials, some of the best current intelligence case notes and news of books looking for reviewers -- has this week welcomed its 1,000th email subscriber. Those of us who work with or write for JIPLP say a big thank you to our readers and also to publishers Oxford University Press for being so willing to trust us!

Eagle-eyed readers may have spotted that this weblog has yet to report on a 21 May 2015 IP decision from the Court of Justice of the European Union, (CJEU), this being Case C‑546/12 P Ralf Schräder v Community Plant Variety Office (CPVO). The Kats' only excuse is that this is a long, long ruling of 134 paragraphs on an abstruse issue that even the cleverest of them have problems keeping awake when they read it appreciating to the full.  In short, the CJEU -- following the recommendation of the Advocate General -- dismissed an appeal from the decision of the General Court, which in turn had dismissed an action against a decision of the Appeal Board of the CPVO.  This much-affirmed decision was to reject an application to annul the LEMON SYMPHONY Community plant variety right. The CJEU agreed that, in its decision, the General Court had erred in law when it held that the principle of examination of the facts by the CPVO of its own motion did not apply to proceedings before the Board of Appeal. However, that error did not necessarily mean that its judgment should be set aside. This was because, at a basic level, the General Court did not err in law in the taking of evidence when it found that Schräder had not adduced, to the requisite legal standard, the facts and evidence which made it possible to establish that the condition laid down in Article 7 of Regulation 2100/94 ["A variety shall be deemed to be distinct if it is clearly distinguishable by reference to the expression of the characteristics that results from a particular genotype or combination of genotypes, from any other variety whose existence is a matter of common knowledge on the date of application ..."] had not been fulfilled in the technical examination of the variety, which would have justified a declaration of nullity for the purposes of Article 20(1) of that Regulation [which provides, inter alia, that nullity can be granted for failure to comply with Article 7]. All the other grounds of appeal were rejected. 


AIPPI and AIPLA: comparing aspects of the US and European patent regimes. From Sam Kirsop (Freshfields) comes a note on a meeting this Monday between AIPPI (UK) and representatives of the American Intellectual Property Law Association (AIPLA) to share experiences of the patent regimes on both sides of the Atlantic. The meeting, chaired by Tom Mitcheson QC, took place at Freshfields’ offices in London and formed part of AIPLA’s European tour. AIPLA had met with CIPA and IPLA earlier in the day and will be travelling to Paris and Munich later this week.

In the first half of the meeting, Peter Schechter (Osha Liang) and Steve Howe (Reddie & Grose) compared the inter partes review (IPR) procedure in the US and opposition proceedings before the European Patent Office (EPO). Peter explained that many of the expected benefits of the new IPR procedure had held true. However, as the Patent Trial and Appeal Board had received nearly 3,000 applications since the procedure came into effect in September 2012, it was now clamping down on the initiation of claims (particularly on the grounds of obviousness) and follow-on petitions. Peter also suggested that tight page-limits and the need to corroborate publication dates through live depositions had caused procedural difficulties. Steve described the well-established EPO oppositions procedure as relatively easy, cheap and flexible, but noted that it could be a slow process. During a lively Q&A, Peter and Steve drew further comparisons between the regimes, for example in relation to the type of claims being brought (primarily bio/pharma in the EU and electronics/telecoms in the US) and the different treatment of oral cross-examination.

The amendments were finally made but
the original claims were never found  

Enrica Bruno (Steinfl & Bruno) and Chris Tunstall (Carpmaels & Ransford) then explored the US requirements of Written Description and the issue of “added matter” as outlined in Article 123(2) of the European Patent Convention. Enrica described the different methodologies used by the EPO and the USPTO to assess patent descriptions, explaining that the latter offered a clear structured methodology for assessing written description while the former only provided general guidance. Enrica highlighted the problems of drafting descriptions for both the European and US regimes and offered some practical tips for harmonising applications. Chris meanwhile focused on the “added matter” rules and explained the EPO’s strict definitive and functional approach to assessing applications, noting the need to draft amendments exhaustively to prevent the EPO from making incorrect assumptions about scope.

Data: mine, or yours? Discovery in the Digital Age In this note, Katfriend and occasional contributor Kevin Winters writes: 

"On 6 May this year, The Hague Declaration on Knowledge Discovery in the Digital Age was launched in Brussels.  The general argument contained within the Declaration appears to be that intellectual property laws should not protect access to the expression of ideas in a digital world and its creation follows a long-running debate on the approaches for undertaking research that are becoming available as a result of new technologies, and the ability to use these under the current IP law regime.  The main culprit under the Declaration appears to be the law of copyright: in the context of data mining, among other things, researchers may be required to seek the permission from a particular author before they make use of their works. 

Many advocate the use of text and data mining in research, in order to identify patterns across disciplines.  This information, according to supporters of legislative reform, will allow for multidisciplinary questions to be talked more effectively.  The European Commission appears supportive of the process of data mining, having outlined in ‘A Single Digital Market Strategy for Europe’ that the use of text and date mining:

“… may be hampered because of an unclear legal framework and divergent approaches at national level. The need for greater legal certainty to enable researchers and educational institutions to make wider use of copyright-protected material, including across borders, so that they can benefit from the potential of these technologies and from cross-border collaboration will be assessed, as with all parts of the copyright proposals in the light of its impact on all interested parties.”

The difficulty here is that many states, having refused to legislate in favour of text and data-mining, are presumably not convinced of their merit. Alternatively, they may have significant concerns over their use.  The UK originally had similar issues with the use of data mining (here) but was able to overcome its fears by implementing a few limited exceptions to copyright law.  

The changes made for the purposes of research (here) have been favourably received (here).  Indeed, in at least one major review of global copyright rules, researchers supported the approach that both the UK and Ireland have taken in respect of data mining.  The UK’s solution is not however foolproof in that the question of what is ‘non-commercial research’ continues to be an issue for researchers.  Further, the fact remains, as has been noted elsewhere (here), that there is a different attitude across Europe on the role of IP laws in the age of ‘Big Data’. 

The kind of approach that the European Commission will take, in dealing with this, is as yet unknown.  It would be interesting to hear from fellow IP law enthusiasts on what they make of this latest foray into the debate on the role of copyright law in the digital age, and whether it will make any difference".