Around the IP Blogs!

IPKat is here with your latest round up of the IP blogs! Highlights this week include Afro-IP's take on the Hakuna Matata trade mark debate, commentary on the political dimensions of the recent decision by the EPO boards of appeal on plant products produced by essentially biological processes, and a debate as to proper abbreviation of the "person having ordinary skill in the art". 

Afro-IP provides their take on the recent debate on Disney's recently granted US trademark for the phrase "Hakuna Matata". Hakuna matata" is a Swahili language phrase, roughly translatable as "no trouble". It also forms the hook of Timon and Pumba's song in Disney's The Lion King: "Hakuna Matata, it means no worries". Afro-IP argues that focusing on the trade mark misses the larger question, why is it left to Disney to capitalize on Africa's cultural heritage? "HAKUNA MATATA"? You're missing the point.  

"No worries"

Last week IPKat reported the Breaking News that the EPO Technical Board of Appeal has decided that plants produced by essentially biological processes are not excluded from patentability, contrary to Rule 28(2) EPC (IPKat post). On the Kluwer Patent Blog, Miquel Montañá provides some political context to the decision: Political Dimension of Tomatoes, Broccoli and Peppers.

EP Law reports on a German patent infringement case, in which the question of direct infringement of a combination patent was considered. According to German case law, a combination patent is directly (not just indirectly) infringed by the sale of a device lacking an ingredient specified in the patent claim when the extra ingredient is "insignificant". The patent in the case in question related to floor heating system filled with a heating fluid. The alleged infringing product was supplied without the heating fluid (e.g. water). In the court's view, a customer would fill the supplied system with water, and the water could be considered an insignificant ingredient of the invention. The patent was thus found to be directly infringed: Direct patent infringement of combination patents and recall from abroad. 

Amphora, with Kats

Marques Class 46 reports on the recent General Court Decision in trade mark case T-313/17. The Examiner refused the EUTM application for a drinks vessel for lacking distinctive character (Article 7(1)(b) EUTMR). The Board of Appeal (BoA) agreed with the Examiner, and found that the shape merely resembled a common amphora, whilst the unusual "kink" was a functional feature necessary for allowing the vessel to be properly stored. The General Court disagreed with the BoA's decision, finding that the "striking kink" also provided aesthetic value: General Court decides on distinctiveness of a somewhat (un)common shape.

Over in the US, Written Description explores whether it is useful to measure the value of patents by assessing their use in the rejection of other patent applications, i.e. as novelty or non-obviousness destroying prior art: Judging Patents by their Rejection Use. The blog post relates to a recent article published by SSRN authored by Chris Cotropia and David Schwartz: Patents Used in Patent Office Rejections as Indicators of Value. The authors analyse U.S. patent application rejection data over the past 10 years. They find that "rejection patents are independently, positively correlated with many of the value measurements [of patents] above and beyond forward citations and examiner citations".

Patentlyo considers the meaning of the phrase "person (having) ordinary skill in the art". What is the proper abbreviation of this phrase? PHOSITA, POSITA, POSA or even the Wikipedia suggestion "PSITA". The blog provides a helpful pie chart showing the popularity of these various acronyms.  Dennis Crouch of Patentlyo makes the case for PHOSITA (Person Having Ordinary Skill In The Art), whilst recognizing that the "PHO" part of the acronym may be undesirable for a party arguing for the credibility of the skilled person: Person (Having) Ordinary Skill in the Art. 

by Rose Hughes