Around the IP Blogs!

What has been happening around the IP blogs lately? IPKat provides your handy summary! This week we have news of further clarity from the US Federal Circuit on the requirements for a prosecution disclaimer, a Peruvian report on Biopiracy and comments and analysis on the forthcoming GPDR 

Patents

Prosecution disclaimer in the US

Patentylyo analyses the recent final decision by the US Federal Circuit on the petition for inter partes review brought by Google against Arendi’s US 6,323,853. The Federal Circuit affirmed the PTAB decision granting the petition and cancelling all 79 of the patent claims. During prosecution, the applicant amended the claims and provided arguments identifying the distinguishing features of the amended claims from a particular piece of cited prior art. The Examiner mentioned the distinguishing feature in the reasons for allowance. However, the PTAB found that 1) the prosecution amendment did not sufficiently exclude the feature of the prior art, 2) that the statements by the patentee during prosecution did not in themselves give rise to a prosecution disclaimer narrowing the claim scope and 3) that the Examiner’s reasons for allowance were irrelevant to the case because a prosecution disclaimer should be based upon applicant statements, not Examiner statements.

Biopiracy

IPTango reports on the recent release from Peru’s National Commission Against Biopiracy. Biopiracy is the the unauthorized and/or non-compensated access and/or use of biological resources or traditional knowledge of indigenous peoples. In Peru, such exploitation is in contravention of the Convention on Biological Diversity and the rights afforded by Decision 391 of the Common Regime on Access to genetic resources in the Andean Pact, of which Peru in a member along with Bolivia, Colombia, Ecuador, and Venezuela. The Commission reports that during 2017 they identified 11 new cases of biopiracy in foreign patent offices, including China, Hong Kong and the Philippines. The Commission is now actively managing opposition of the identified cases, the full list of which can be found here. 

Pirate Kat

According to the report, the Commission permanently monitors 69 biological resources of Peruvian origin, the list of which reads like a collection of trendy super foods, and includes maca, cat's claw, sacha inchi, camu camu, quinoa, guanabana and achiote. 6 of the identified patents and patent applications were directed towards maca.

Cat's claw - not from real Kats

Copyright

The1709blog analyses the recent ruling by the French Cour de cassation on the rights of musical performers whose performances are subsequently used in audio-visual works and the applicability of a feuille de présence (“attendance sheet”) to Section L.212-4 of the French Intellecutal Property Code (IPC).  The case related to performances recorded in a studio and incorporated with authorization from the performers into a televised audio-visual work. Later, the work was marketed as DVDs by the producer. Legal proceedings were brought on behalf of the performers on the grounds that the marketing of these DVDs required a fresh authorization.

Trade marks

MARQUES Class 46 analyses the recent case T-118/16 in which the EU General Court (GC) considered the interaction with the principles of the likelihood of confusion between two trademarks and the distinctive character of the marks. The case related to the EU TM application “BEPOST”, for products such as transport and delivery of postal items, by Belgian company bpost NV. The German company Deutsche Post AG opposed the mark on grounds of a likelihood of confusion with the German word mark "POST". The GC rejected the opposition. According to MARQUES, the decision of the GC is “striking because it deviates from the usual doctrine of the GC according to which even a coincidence of two marks in an element of weak (read: no) distinctive character can suffice to cause a likelihood of confusion”. 

IP and emerging technologies

In a comment on Guest Kat Frantzeska's post on Blockchains and IPRs, Afro-IP highlights an article by musician Imogen Heap on blockchain and the music industry. 

Imogen Heap

In the Journal of Intellectual Property Law, Stefano Barazza considers the topic of open standards and the technologies of the future. Barazza particularly considers how the evolution of the legal framework for dealing with emerging technologies depends on the sharing of data on their functioning and use with the relevant authorities and the public, and asks “[i]n a time of revolutionary technological leaps, are we ready for revolutionary legal reforms?”. Similar questions were raised at the recent Digital Ethics Summit, reported here by IPKat. 

Data Protection - The GPDR

The General Data Protection Regulation (GPDR) (IPKat reports here and here) comes into force in three months time. The GPDR grants consumers more rights over their personal data held by third parties. Peep Beep! asks what the legislation, together with the guidelines to the GPDR provided by the EU Article 29 Data Protection Working Party (Art. 29 WP), will mean for businesses wishing to work with data and particularly what the aspiring start-up should know. 

In another post on the GPDR, IP Draughts takes a closer look at some of the difficulties in relying on consent as a justification for lawful processing under GDPR. 

Image credits: Cute Cats in Hats 

Author: Rose Hughes