Wednesday whimsies

This case seems to be
getting out of hand ...

To recap, the Court of Justice of the European Union (CJEU) gave its ruling on Wednesday 16 September in the '3D chocolate finger' trade mark case,  Case C-215/14 Nestlé v Cadbury [noted by Eleonora here]. On that very day, IPKat blogmeister Jeremy happened to alight upon the MARQUES Conference in Vienna, where some 820 trade mark experts -- mainly from Europe -- assembled. When he spoke to them, he received several different explanations as to what the CJEU's ruling actually meant.  While recent guest posts from Thomas Farkas (here) and Roland Mallinson (here) have suggested that the ruling was effectively a win for Nestlé -- subject to whatever the referring court might now do with the CJEU's ruling -- the popular press and many other practitioners have taken a different view.   Given the uncertainties as to what the CJEU's ruling actually meant, Merpel decided to ask readers of this weblog what they thought Mr Justice Arnold should do, now that he has either an answer or no answer to his questions. The results of this weblog's sidebar poll look like this:

What should the judge do? 

Accept the ruling gracefully and apply it to the letter, if that should be possible 46 (22%) 

Interpret the ruling in the light of his own knowledge of the law 58 (28%) 

Make a second reference to the CJEU to seek clarification of what it meant 52 (25%) 

Find a means of getting another judge to hear the next bit of this litigation and save himself a headache 46 (22%)

Never before has an IPKat sidebar poll attracted such a close call in terms of readers' responses.  This Kat thinks there is a case for saying that the good judge should fire the case back to Luxembourg and ask for some unequivocal clarification, though Merpel is inclined to think he should clarify the decision himself, leaving it for other judges to refer their cases to the CJEU if they disagree with him.

Here's a not particularly rigorous survey (naturally, since it's not one of ours, adds Merpel), prompted by Merpel's recent post to the effect that French applicants for European patents might not get their applications dealt with as swiftly as those of other nationalities. According to one of our more numerate readers, there have been 1,204 EP A documents published with French priority since 1 August 2015 and 194 EP A documents published with Spanish priority in the same period. Of the French documents, 118 (or 9,8% if you prefer) were published as A2s while for the Spanish only 9 (a paltry 4.6%) were published as A2s.  It is acknowledged that there may well be effects from backlogs in specific subject-matters associated with these delays. Or might this be a reprisal against the Spanish for having not only invented the concept of mañana mañana

Not all prosthetics
are patented, it seems

Around the weblogs. Here's a powerful piece of prose from Mark Anderson with the pull-no-punches title of "Amateurism doesn't work for IP", which it doesn't [adds Merpel: even professionalism doesn't always work either ...].   The IP Finance blog features a guest post from Felix Rozanski on the continuing problem of how to attract private sector investment in R&D and innovation in Latin America [Merpel's suggestion: make it more profitable to invest in IP than in infringement, which never seems to suffer from a shortage of private sector investment].  "Do not destroy the foundations of your argument" is the stern warning of Michael Thesen, noting EPO decision T2201/10 on PatLit.  The SPC Blog rejoices in the CJEU's clear and unambiguous ruling in Case C-471/14 Seattle Genetics that innovative pharma companies can get a few more days' protection for their extended monopolies. Finally, Aistemos takes a Cipher Snapshot at the distribution of patents and players across the vast, largely uncharted prosthetics sector.

From Katfriend and Polish blogger Bogusław Wieczorek comes a follow-up to an item this blog touched on over a year ago here. The story involved copyright in the unofficial so-called Polish "national anthem", Red Poppies in Monte Cassino, which turned out to be vested in the State of Bavaria.  Last month, representatives of Bavaria and Poland signed an agreement transferring the rights in this anthem to Poland. You can read the story in full in English, plus a scanned version of the agreement in question -- in Polish only -- here.