The team is joined by GuestKats Mirko Brüß, Rosie Burbidge, Nedim Malovic, Frantzeska Papadopolou, Mathilde Pavis, and Eibhlin Vardy
InternKats: Rose Hughes, Ieva Giedrimaite, and Cecilia Sbrolli
SpecialKats: Verónica Rodríguez Arguijo (TechieKat), Hayleigh Bosher (Book Review Editor), and Tian Lu (Asia Correspondent).

Friday, 29 September 2006


Commissioner Charlie McCreevy’s speech about the Community patent has provoked differing responses.

Heise Online accentuates the positive, reporting that the Commissioner noted the urgency of the need to create the CP and drew attention to the fact the ‘patchwork quilt’ network of different patent systems across Europe puts Europe at a competitive disadvantage, compared to the US and Japan.

The Commissioner ponders the desirability of the CP

However, the Register notes that the Commissioner acknowledged concerns about the CP that he described as ‘legitimate’, namely
‘cost of litigation under the EPLA, the impact of the rules of procedure which we have yet to see, the independence of the EPLA judges from the EPO.’
The IPKat reckons that the ultimate test will be the market: if/when the CP comes online, if business doesn’t like it, business won’t use it.


Here's a round-up of intellectual property-based odds and ends for your interest and delectation:

German trade mark case law laid bare

The IPKat's friend, trade mark scholar Ulrich Hildebrandt, tells him that Carl Heymanns has just published his latest book, Marken und andere Kennzeichen. This book contains not only the complete case law of the Bundesgerichtshof since 1994 on trade mark matters but also probably all decisions of the ECJ and the Court of First Instance. If you (i) love trade marks or (ii) practise trade mark law and represent German clients and (iii), in either case, can read German, then this is the book for you.

Full details of Ulrich's book here
If you are an English-speaker with a masterly command of legal German and would like to translate this book for some remuneration but (alas) probably much less than the job is worth, email the IPKat here and let him know

Never too late for the TLT?

The World Intellectual Property Organization's Trademark Law Treaty of 1994 might be so old-fashioned that it had to be upgraded by the Singapore Treaty of 2006, but that doesn't stop countries acceding to it. Latest participants are France (as of 15 December 2006) and Bosnia and Herzegovina (as of 22 December 2006).

The number of contracting states for the Singapore Treaty, according to the IPKat, currently stands at zero. How strange, says Merpel, that France chose to decorate its flag with the corporate colours of Danone ...

Intellectual Property Enforcement and Remedies

Don't forget there's a fascinating one-day programme coming up on 31 October, courtesy of LexisNexis Butterworths: it's Intellectual Property Enforcement and Remedies. There's a strong cast of speakers and the subject-matter (in the light of the implementation of IP Enforcement Directive 2004/48) is quite compelling. See you there?

Full details of the conference here

Gowers review workshops: a reminder

Last week the IPKat announced that he was planning some workshop seminars on the Gowers Review of Intellectual Property in the UK. Lots of interest has already been expressed and it looks as though all four projected dates will run. Full details will be circulated next month. In the meantime, here's the earlier announcement. If you'd like to express your provisional interest and receive further information, email the IPKat here.

Thursday, 28 September 2006


British Library IP manifesto - archives in danger

Monsters and Critics reports that the British Library has issued a statement expressing its concern about its inability to transfer its sound archive on to more modern media. The statement points out:

"Currently the law does not permit copying of sound and film items for preservation… Without the right to make copies, the UK is losing a large part of its recorded culture… Many original audio and film formats we hold are becoming increasingly more fragile".
The statement continued by adding that such formats could 'face irretrievable decay.'

The IPKat says that this situation is particularly unfortunate because the authors have absolutely nothing to lose and have everything to gain from the BL preserving their work for posterity.

The statement appears to be part of a wider IP Manifesto launched by the BL on Monday, which calls for the following:
*Existing limitations and exceptions to copyright law should be extended to encompass unambiguously the digital environment;
*Licences providing access to digital material should not undermine longstanding limitations and exceptions such as ‘fair dealing';
*The right to copy material for preservation purposes – a core duty of all national libraries – should be extended to all copyrightable works;
*The copyright term for sound recordings should not be extended without empirical evidence of the benefits and due consideration of the needs of society as a whole;
*The US model for dealing with ‘orphan works'** should be considered for the UK;
*The length of copyright term for unpublished works should be brought into line with other terms (ie: life plus 70 years).
Artists embrace posterity here

IP in verse!

Larry Lessig doffs his imaginary hat in the direction of Yehuda Berliner, who has rendered the copyright, patent and trade mark laws of the US into verse.

The IPKat awaits the TRIPs Agreement in iambic pentameter.


Here is a very recent case from the European Court of Human Rights (ECHR, right) which has some surprising intellectual property-related subject matter.

Blake v United Kingdom (App No 68890/01), 26 September 2006. Between 1994 and 1961 George Blake was a member of the British Secret Intelligence Service (SIS); he had signed the Official Secrets Act 1911, which prohibited him from divulging any information relating to his employment on pain of criminal sanctions. Blake became an agent for the USSR, to which he disclosed secret information. Arrested in 1960, he pleaded guilty in 1961 to unlawfully communicating information and received 42 years’ imprisonment. In 1966 the Russians sprung him from prison and took him to Moscow where he wrote his autobiography, No Other Choice. In May 1989 he contracted have the book published the book in the UK. Blake received an advance on royalties, a further advance being due to him on publication. The book was published in 1990.

Left: George Blake at the time he wrote the book

In 1991 the Attorney General instituted civil proceedings to recover any financial benefit from publication on the ground that, in writing and authorising the publication of the book, Blake acted in breach of the duty of confidence he owed to the Crown as an ex-SIS man. The proceedings took nine years from their inception to their conclusion before the House of Lords, the proceedings being beset by a multitude of delays.

In this action Blake complained to the ECHR that the length of the proceedings was incompatible with the reasonable time requirement under Art 6(1) of the European Convention on Human Rights.

Right: the Attorney General, sporting his traditional robes, in the course of the trial

According to the ECHR

(i) The reasonableness of the length of proceedings had to be assessed in the circumstances of the case with reference to the complexity of the case, the conduct of the parties and what was at stake.

(ii) A State is responsible for the efficiency of its system and the way it provides mechanisms to comply with the reasonable time requirement, whether by automatic time limits and directions or some other method.

(iii) Where a State lets proceedings continue beyond the reasonable time prescribed by Article 6 of the Convention without doing anything to advance them, it is responsible for the delay.

(iv) In this case the proceedings were legally complex and the State could not be considered at fault for having raised novel questions of law. However, the proceedings were neither factually nor administratively difficult.

(v) The dispute had some financial importance to Blake, but its significance could not be said to have been acute.

(vi) In the circumstances, the proceedings against Blake were not pursued with the diligence required by Article 6(1) and his civil rights and obligations were been determined within a reasonable time.

(vii) There having been a violation of Article 6, Blake was awarded €5,000 in respect of his claim for non-pecuniary damage.
The IPKat, noting that litigation that drags on for nine years can be worth €5,000 to the lucky litigant, wonders how many Community trade marks for which application was made on or before 1 April 1996 are still stuck in the pipeline while opposition/cancellation litigation drags on. Does anyone know? Merpel says, there's a slight logical problem here - the fact that Blake might not be entitled to his copyright royalties doesn't necessary mean that the British government was entitled to them instead ...

Read the House of Lords judgment here
Buy No Other Choice here
What you can spend your €5,000 on here and here

Making it stick ...

According to the BBC, Tate & Lyle's Golden Syrup is Britain's oldest brand. Its green and gold packaging have remained almost unchanged since 1885. The Guinness Book of Records has bestowed its recognition on the longevity of the breakfast and teatime sweetener, whose tins bear the image of a lion and a biblical quotation ("out of the strong came forth sweetness": Judges 14: 14).

The IPKat says, can anyone identify an older brand in continuous use? Merpel says, if Golden Syrup's the trade mark, what's the generic term?

Recipes for Golden Syrup here and here
Tooth decay here


Representative IP actions - your chance to comment

Right: The Representative of the People on Duty (Jacques-Louis David, 1794)

The IPKat is pleased to tell you that the UK Patent Office is conducting a consultation exercise in relation to the implementation of Article 4 of the IP Enforcement Directive 2004/48 that relate to the bringing of representative actions on behalf of classes of IP owners. This initiative, Representative Actions for the Enforcement of Intellectual Property Rights, needs your response by 18 December 2006. Why is this happening now? The answer is that provisional proposals were offered for inclusion in the implementing regulations, but they were omitted from the final version once it became apparent that they were not an adequate solution for representative actions and that the Directive did not require the making of specific provisions. However, the Patent Office has decided that a further formal consultation was needed to consider this issue in detail.

The IPKat is delighted that this consultation is taking place; he is saying absolutely nothing about the level of consultation that preceded the changes to the Patent Office's notorious website ... Merpel adds, it would be lovely if the Patent Office could post all responses online so that we could read them and post comments like "yes, we agree" or "this response is misguided for the following reasons ...". That way, the Patent Office would have to read the same submissions several times over from different respondents and the comments would help them focus more readily on sensitive or difficult issues.

Consultative paper here
Response form here
Test yourself to find out how few clicks you need to get from the Patent Office's home page here to a copy of the Intellectual Property (Enforcement, etc.) Regulations 2006 (2006 No.1028).

Two from the CFI

The Court of First Instance of the European Communities threw up two significant cases yesterday. They are

* Case T‑172/04, Telefónica v OHIM, David Branch. Since it's not in English, the IPKat is a little disadvantaged, but it looks to him as though Telefónica applied to register the sign represented here (above, right) as a Community trade mark for goods and services in classes 9, 38 and 42 and that Mr Branch opposed, citing the earlier CTM registration of the word mark EMERGEA for goods and services in classes 28, 36 and 38. The IPKat thinks that the opposition succeeded in part and that Telefónica's appeal failed. If there's anyone out there who can add to this, the IPKat will be delighted.

* Case T‑168/01 GlaxoSmithKline Services Unlimited v Commission of the European Communities. In brief, GSK ran a differential pricing scheme in Spain in order to limit the export of medicines sold there to countries where their products fetched higher prices. This scheme involved GSK charging Spanish wholesalers a lower price (fixed by the Spanish authorities) for drugs destined for local consumption, but a higher price if they were to be exported. In 2001 GSK notified the Commission that it wanted to do this and sought a green light for what might otherwise turn out to be a breach of competition law. The wholesalers objected to the Commission, which refused to grant an exemption.

GSK appealed, arguing that it was actually the varying national prices of pharmaceuticals that created market distortions, not their dual pricing policy, and that its price differentials did not affect competition but just counterbalanced the distortion of competition caused by the low prices set by the Spanish authorities. In yesterday's ruling the CFI has not actually conferred its blessing on GSK's pricing scheme but annulled the Commission's decision on the basis that it had failed to consider properly whether that scheme, which was prima facie a distortion of competitiom, was nonetheless permitted under Article 81(3) of the EC Treaty.

The IPKat is delighted with this ruling. While national governments act with the best intentions when seeking to protect the perceived interests of the ill, businesses must at least have the chance of redressing damage caused to their businesses by the unintended consequences of official interference with the market at national level.

Merpel notes that medicines marketed in Spain but sold elsewhere are medicines that aren't getting to Spanish consumers and wonders whether the pricing of medicines is altogether too important an issue to leave to the market.

Wednesday, 27 September 2006


US Dilution Act: the final countdown

The IPKat learns from the Trademark Blog that the US Congress has sent the Trademark Dilution Revision Act 2006 to the President for signing. This is the Bill that will reintroduce a likely dilution standard into US trade mark law and provides definitions of blurring and tarnishment. It has proved particularly controversial in recent months because of fears that it restricts the available defences in not only dilution cases, but also in other trade mark cases.

All aboard the dilution express

The IPKat says that this Bill would be welcome if it cleared up the uncertainty that has surrounded dilution since its inclusion in US federal trade mark law. However, the most recent draft he’s seen won’t achieve that objective. Particularly weak are the lack of a test for tarnishment and the (deliberately?) overly inclusive test for blurring.

For the avoidance of doubt

Some IPKat readers came away with the impression that IPKat co-blogmeister Ilanah is a fan of the new Patent Office website. Careful readers will have noted that what she actually complimented was the website’s typeface [they will also have noticed that she likes writing about herself in the third person rather too much].

Her experiences with the new website haven’t been happy. Conducting a Google search on IP-related matters now brings up what looks like a positive result, but in fact leads to a message that reads as follows:

The Patent Office web site was redesigned on September 24th 2006
You have been referrred to a page that no longer exists from,GGLD:2005-13,GGLD:en&q=performers+moral+rights .
Unfortunately, we are unable to offer an equivalent page at this time so you will be automatically redirected to the new Patent Office home page in 10 seconds.
If you are not redirected then please use this

So far as the Kat can see, a load of older material has silently been removed from the site, which doesn’t exactly help researchers. Ilanah paid a trip to the ‘Way Back Machine’ in the hope of digging the material out, but the archived versions don’t seem to include files like consultation documents.

Some more successful webbed feat

The IPKat also wonders what the fate of (which is showing ‘latest news’ from July) is now that IP for laypeople seems to be the function of the Patent Office website.

Tuesday, 26 September 2006


More on THAT website ...

Feelings are clearly running high over the new UK Patent Office website, which has been the subject of one post and some comments on this weblog over the past day or so. In keeping with its commitment to serving the public's needs, the Patent Office has emailed the IPKat as follows:

"I see you've already had a few comments : the site has changed dramatically and we realise this may come as a bit of a shock to people the industry who are everyday users. Whilst things have moved around a lot there is very little that was on the old site that is not on the new. Its just a matter of getting used to the change".
Indeed. The IPKat is not averse to change, but at least one half of the team prefers it when the benefits of that change are (i) plainly apparent and (ii) introduced with words of gentle guidance and warning.

Disbelief was the IPKat's first reaction when he accessed his favourite site, only to find that it had mutated ...

The IPKat also wonders if the Patent Office (which he continues to view with admiration, respect and indeed affection) would be kind enough to answer the following questions:

1. Was the new website trialled by control groups of existing users and potential users? If so, how many - and when? And what were the findings?

2. Is the Patent Office planning to monitor users' responses to the new site?

3. Was any feedback openly sought from existing users as to how they found the old site (which was pretty good, to put it mildly)?

4. Did the Institute of Trade Mark Attorneys or the Chartered Institute of Patent Attorneys - both of which have very considerable experience of running accessible and user-friendly IP websites themselves - have any opportunity to make any suggestions, constructive or otherwise, as to how the website could and should work?

5. Did any of the academic institutes which regularly send their students to the Patent Office website have a chance to offer any input?

6. What advantage is there in letting something like this come as a shock to users? The website exists for the benefit of the users, not the other way round. The IPKat will repeat that because he's angry at having wasted time and effort when he was working under time pressure and really could have done without this: THE WEBSITE EXISTS FOR THE BENEFIT OF THE USERS, NOT THE OTHER WAY ROUND.

Anyone wanting to know how users feel about change should read this


Legal TV

Yesterday IPKat co-bloggie Jeremy visited the Birmingham (England, not Alabama) premises of Legal TV, a bright young television station that first went on air earlier this year and which seeks to provide a variety of programmes and services for a mixed audience of lawyers, clients and students. The typical viewer will probably not be a couch potato but will be indulging in a little streaming while sitting at his PC or laptop.

Apart from the programmes themselves, Jeremy also takes an interest in the channel's terms and conditions: what do they have to say about intellectual property? He found the following:

2. Copyright and Other Intellectual Property
The names, images and logos identifying Legal TV, Legal TV associated companies or third parties and their products and services are proprietary marks of Legal TV, its associated companies and/or third parties. Nothing contained herein shall be construed as conferring by implication, estoppel or otherwise any licence or right under any trade mark or patent of Legal TV, its associated companies or any other third party.

4. Third Party Sites/Links
Legal TV is not responsible for the availability or content of any third party websites or material you access through this site. If you decide to visit any linked site, you do so at your own risk and it is your responsibility to take all protective measures to guard against viruses or other destructive elements. Legal TV does not endorse and is not responsible or liable for any content, advertising, products, services or information on or available from third party websites or material (including payment for and delivery of such products or services). Legal TV is not responsible for any damage, loss or offence caused by or, in connection with, any content, advertising, products, services or information available on such websites or material. Any terms, conditions, warranties or representations associated with such dealings, are solely between you and the relevant provider of the service.

Links to this site must be direct to any complete content page (and not any part of a page) within and must not be viewed within the pages of any other site. Legal TV disclaims all liability for any legal or other consequences (including for infringement of third party rights) of links made to this site.

Links do not imply that Legal TV endorses, is affiliated or associated with any linked site, or is legally authorised to use any trademark, trade name, logo or copyright symbol displayed in or accessible through the links, or that any linked site is authorised to use any trademark, trade name, logo or copyright symbol of Legal TV or any of its affiliates or subsidiaries.

5. Disclaimer/Limitation of Liability
This site and the information, names, images, pictures, logos and icons relating to, Legal TV and/or any of Legal TV's associated companies, products and services (or to third party products and services), is provided "AS IS" and on an "AS AVAILABLE" basis without any representation or endorsement being made and without warranty of any kind, including but not limited to the implied warranties of satisfactory quality, fitness for a particular purpose, non-infringement, compatibility, security and accuracy.

7. Software
From time to time certain software which is the protected work of Legal TV or its suppliers may be made available to download from this site. You are licensed to use the software on a non-exclusive basis only for the purposes for which it is indicated. You may not use the software for any other purpose and may not redistribute, sell, decompile, reverse engineer, disassemble or otherwise deal with the software.
The IPKat is glad to see that so many issues are addressed, so succinctly too. He's curious, though to see if any of his readers can spot any interesting omissions. Email your responses to the IPKat here. The best answers will be posted on this site in due course.

More on Legal TV here
Illegal TV here, here and here

Monday, 25 September 2006


The IPKat has been working his way through two recent issues of IP publications: the Bio-Science Law Review and Managing Intellectual Property.

Managing Intellectual Property. The September 2006 issue of MIP carries special focuses on Europe and Singapore. The Europe focus includes an interview with European Patent Office President Alain Pompidou (below, right) and asks why the International Trademark Association - which some say is still a throwback to its earlier existence as the United States Trademark Association - has opened an office in Brussels. The Singapre focus is less political, more legal in its content, as representatives of Nokia, Epson and Hewlett-Packard have their say on the state of IP protection there.

Full contents of this issue may be perused here

Bio-Science Law Review. Its numbering system is as enigmatic as usual (with 2007 beckoning, this is issue 1 of volume 8, 2005/2006), but publishers Lawtext have thrown up another agreeably interesting read. The issue opens with a challenging view of Cambridge University's invention ownership policy by solicitor/patent attorney Alasdair Poore (Mills & Reeve), and there's also quite a promising account of plant variety protection in Egypt by Bronwen Jones (a research student at the University of Newcastle on Tyne).


The IPKat thanks Michael Jaeger of Marks & Clerk for tipping him off about the launch of the UK Patent Office's newly designed website. The site has been completely revamped and, from a cursory glance, appears to be primarily aimed at those without a specialist knowledge of IP.

The IPKat, who is rather in shock at the demise of his favourite online IP gentleman's club, congratulates the Patent Office on the easy-to-read new design.

Friday, 22 September 2006


Happy New Year!

This weekend marks the beginning of the Jewish New Year. The IPKat and Merpel wish all their friends and visitors - regardless of their religion, nationality or favourite football team - a happy new year and hope that it will be a year of peace, of prosperity and of achievement for us all...

... and remember ...

... if you're not already receiving the IPKat's postings by email circular but would like to do so, all you have to do is email the IPKat here and ask him to add you to the circular. It costs nothing and is nearly totally spam-free too at the moment!

Left: This Kat takes its online presence very seriously ...


Here's a selection of recent items specially brought by the IPKat and Merpel for you to contemplate over the weekend.

ImClone's lost patent rights

ImClone thought its antibody patent was theirs - but the District Court for the Southern District of New York ruled otherwise, giving it to Yeda. The Patent Baristas blog explains that you can't prove your team has made an invention unless your internal records are strong enough to support your contention.

The Gowers Review: watch this space ...

In a few short weeks, publication of the Gowers Review of Intellectual Property should have taken place. This review, which was called for by the Treasury rather than by the Department of Trade and Industry, is expected to paint an independent picture of the infrastructure of intellectual property in the United Kingdom. It is chaired by Andrew Gowers, who can expect a lot of attention from the IP community once his findings are made public.

IPKat co-blogmeister Jeremy is provisionally planning to conduct some in-depth seminars on what the Gowers Review recommends and what those recommendations may mean to IP owners, practitioners, competitors and consumers. To that end, he has reserved slots at the Chamber of Shipping (near the Barbican, London) for four consecutive Monday afternoons - 20 and 27 November and 4 and 11 December - for a workshop on the Gowers Review (they're not cumulative: each one will cover the same issues). The price is unlikely to exceed £85 for the afternoon and may be cheaper. If you'd like further information once it becomes available, please email the IPKat here or Jeremy here.

IPKat copyright

The IPKat is sometimes asked what his policy is with regard to copyright in material that's posted on this weblog. The position is this: the copyright in all material that is original to the weblog and generated by its blogmeisters is owned by Ipkat Limited. The company is happy to allow free use for what are essentially non-commercial purposes and is even happier to grant a licence on thoroughly reasonable terms to anyone who wants to use any material for commercial (and that includes profitable) purposes. If you're not sure whether your use is commercial or not, email the IPKat here and he'll be pleased to tell you.

Alles in Ordnung

The IPKat's learned friend Dr Alexander von Mühlendahl, currently practising as a Rechtsanwalt in Munich after his stint at OHIM, has kindly drawn his attention to an increasing tendency of the European Court of Justice to deal with Community trade mark-related appeals from the Court of First Instance by way of an order rather than through the traditional mechanism of a hearing followed by a judgment.

As Alexander accurately observes, orders are more difficult to spot than are judgments (indeed, he mentioned orders dismissing appeals in Case C-92/06 P, Sofass (NOKY/Nicky, Order of 13 July 2006), Case C-314/05 P, Creative Technology (W WORK PRO/PC WORKS, Order of 29 June 2006) and Case C-324/05 P, Plus Warenhandelsgesellschaft (POWER/TURKISH POWER, Order of 1 June 2006) - two of which the IPKat blogged at CFI level (here and here) and subsequently lost sight of. In all these cases, Alexander notes, the ECJ considered it unnecessary to proceed to a hearing, holding the appeals to be inadmissible (in Sofass) or manifestly unfounded (in Plus and in Creative Technology). The IPKat adds, you can find orders the same way as you find judgments and Advocate Generals' Opinions, via the "case search" facility - but you don't know they're coming because they're not listed in the diary of forthcoming hearings.


This week has seen a happy confluence: the September issue of the European Copyright and Design Reports and the European Trade Mark Reports have both come out. Both are published by Sweet & Maxwell. If you want to know what's in them ...

European Copyright and Design Reports

Two Dutch cases are reported in English in this issue. They are

* Stichting Bescherming Rechten Entertainment Industrie Nederland (BREIN) v Techno Design "Internet Programming BV (Court of Appeal of Amsterdam) - the case, involving liability for offering and/or hosting internet services that permitted access to unlawfully uploaded music files;

* Adam Curry v Audax Publishing BV (District Court of Amsterdam) - the first case in Europe to consider the legal effect of a Creative Commons licence, in this instance relating to photos posted on flickr by a publicity-hungry but privacy-conscious family of TV celebrities.
There are also some desperately serious European Court of Justice rulings involving Portugal (for failure to implement Council Directive 92/100) and Uradex/Brutele (on the circumstances in which collecting societies can do their collecting ...).

European Trade Mark Reports

Three cases in this issue appear in English for the first time. They are
* Intel Corporation v Empresa Nacional de Telecommunicasiones (Supreme Court, Sweden) - on whether there had been genuine use of the ENTELCARD marks to prevent Intel getting them revoked for non-use;

* Hastens Sangar AB v Rock Raamsveld BV (Hague District Court) - a bloody battle to the death between the owner of some trade marks for a rather comfortable range of beds and a cut-price competitor who challenged their validity;

* Dr OK Wack Chemie GmbH v Brookside Import Specialities Inc (Swiss Federal Court) - a battle for the heart and soul of the S100 trade mark in Switzerland between the mark's German progenitor and a former US agent.
Other attractions in this case include the attempt of Jaguar Cars to block registration of JAGUAR for watches.

Above: the lack of a prehensive thumb proves to be a major design flaw as this jaguar takes a break after struggling in vain to put its wristwatch on.

Thursday, 21 September 2006


EasyBourse reports that not everyone’s happy with the new copyright bill passed by the Russian Duma yesterday. Lobbyists are arguing that it does not comply with Russia’s international obligations and that it will take copyright owners and enforcement agencies up to 3 years to get used to, making enforcement less effective.

Last time the IPKat looked, Russia was a sovereign state…

For a bit of light relief, Merpel suggests that you take a look at how Mosnews reports the same story.


UPOV is Morocco-bound

The IPKat is delighted to learn that the Kingdom of Morocco has deposited its instrument of accession to the International Convention for the Protection of New Varieties of Plants. The Convention will enter into force for Morocco on 8 October 2006, when the Kingdom becomes a member of the International Union for the Protection of New Varieties of Plants (UPOV). Morocco's accession takes the number of UPOV nations to 62.

Left: Moroccan sea holly

Moroccan plant life here and here The Road to Morocco here

The Chinese Opportunity

The Intellectual Property Institute, London, is holding an exciting afternoon seminar, hosted by law firm Linklaters, on 12 October 2006. Chaired by IPI president Ian Harvey, the seminar features the following attractions:

* Kevin Rivette (Vice-President for IP Strategy, of IBM Corporation) speaks on the "Opportunity, Pitfalls and Enthusiasm";

* Luke Minford (Rouse & Co. International) examines the myths and the reality of the Chinese IP landscape and what it means in business terms;

* Jiang Zhipei (Chief Justice and Director of the IP Tribunal) will be putting the Chinese government's side of the subject;

* GE Vice-President Todd Dickinson - a former Commissioner of the USPTO - will be relating his own company's experiences there.

Above: the spectacular results of some early Chinese human cloning experiments

The IPKat says, don't miss this event. Kevin Rivette is co-author of Rembrandts in the Attic - he's obviously full of ideas and it would be a pity to miss out on his take on IP/China.

Wednesday, 20 September 2006


The IPKat thanks Professor Hector McQueen for tipping him off about the British Academy’s recent report, which argues that copyright is impeding scholarship in social sciences and the humanities. The report argues that the existing copyright exceptions are not clear enough. It also lays blame at the feet of publishers, commercial rights holders and EU database protection.

Suggested strategies are:

*authors and producers of original creative material should understand that their interests in copyright are not necessarily identical with those of publishers and should not rely on publishers to protect them

*the law should be clarified - statutorily if necessary – to make clear that the use of copyright material in the normal course of scholarly research in universities and other public research institutions is covered by the exemptions from the copyright act.

*publishers should not be able to use legal or technological protection through digital rights management systems to circumvent copyright exemptions

*the growth of digital databases should be monitored to ensure that ready access continues to be available for the purposes of scholarship

The report was started before the Gowers Review was a twinkle in Gordon Brown’s eye, though the Academy did appear before Mr Gowers.

The IPKat notes that the recommendations seem to be expressed in terms of general statements of intent, rather than specific suggestions.


Tibolone patent case

The IPKat has received the following news from his talented friend Gill Grassie, the Legal Lassie (Maclay Murray and Spens):

"The decision of Lord Glennie in the patent revocation case of Arrow Generics v Organon and Norton [2006] CSOH 146 was posted on the Scottish Court website last week. A Scottish Court of Session decision, it dealt with the application for revocation of two European patents, each relating to the same compound - Tibolone. The first patent (‘035) related to the crystalline purity of two polymorphic forms of Tibolone; the second patent (‘375) related to the chemical purity of the same compound.

Lord Glennie (the Scottish specialist IP judge) held that all the claims subjected to attack by Arrow/Norton were invalid, basing his decision on either anticipation or obviousness. In regard to ‘035 the Court rejected the argument that polymorphic Form 1 was not anticipated because Form 2 at the time of the relevant prior art document had not disclosed Form 1, or because of the fact that the compound was polymorphic had not yet been discovered. The prior art document clearly disclosed pure Form 1; that was sufficient to anticipate. The ‘375 patent effectively was prolonging a monopoly on a product based on its chemical purity. Lord Glennie held that a document disclosing a compound and its manufacture makes that compound available to the public in all grades of purity which are achievable by conventional means such are within common general knowledge of those skilled in the art.

Akzo’s argument that particular yields should be read into the ‘375 claims was rejected. The Court also refused to allow an application to amend various claims of ‘375 made by Akzo, as the application was made too late and would require the Proof (Trial) to be reopened. In addition, the proposed amended claims were unlikely to meet the tests laid down in Kirin-Amgen for product-by-process claims.

The effect of this decision is to revoke the main claims of both these European Patents throughout the whole of the UK".
The IPKat is always glad to see cases coming through the Scottish courts. He wonders whether, following the upgrade to Scottish IP enforcement in the wake of the recent Enforcement Directive, the volume of North-of-the-border enforcement litigation will increase. Merpel says,I hear it's cheaper than in England too ...

JIPLP survey

Readers of that thoroughly democratic institution, the Journal of Intellectual Property Law & Practice (JIPLP), now have the opportunity to make their feelings felt since a readers' survey is being conducted. The story goes like this:

"Oxford University Press is conducting a survey on its new Journal of Intellectual Property Law & Practice, seeking views on the content and appearance of both the online and print versions of the journal. Survey responses are confidential and those received by Friday 29 September will be entered into a prize draw for £400 worth of OUP books.

If you have not seen the journal yet, you can see a free sample issue here. If you have not already received an email request to fill in the survey, why not take a look at the journal and give them your views on it by clicking this link: Click here to take survey".

The IPKat says, do take the trouble to complete the questionaire. It's the only way of letting publishers and editors know what you really expect from an IP journal. Merpel adds: there are several factors here - what readers want, what they need, what they like and what they're prepared to pay for. It's a tricky set of factors to balance when readers are drawn from different countries, professional or commercial sectors and IP specialisms.

Survey methodologies here and here


Limerick winner

The IPKat received some excellent entries to his limerick competition. The following are highly commended:

There once was a lover of fashion
For whom socks were a burning passion.
So during the War
He would buy more and more
Until he'd exhausted his ration.

(Richard Gallafent - though a very similar entry was received from Jonathan Thurgood of Carpmaels)

There once was a lover of fashion
For whom socks were a burning passion. ..
When worn for a while
They acquired trade mark style
So he's got a brand reputation.

(Gillian Black, University of Edinburgh)

Well done, too, for this Germanic offering from Philipp von Kapff (OHIM), which develops the limerick to a new level:
There once was a lover of fashion
For whom socks were a burning passion.
Die Socken trug er wie
Ein Storch weit uber das Knie
Es quakten die Frosch in den Taschen
(Des alten Lovers of fashion).
No entry was more magnificently tortuous than this one from David Stone (Howrey):
There once was a lover of fashion
For whom socks were a burning passion.
A red-green dystopia,
Caused by deuteranopia,
He'd traipse around town, feet mis-matchin'.
But the winner is Dan McCormack, Collyer Bristow, whose effort reads like this:

There once was a lover of fashion
For whom socks were a burning passion.
He invariably sought
To wear smart pairs to Court
To incite some judicial compassion.
Well done, Dan (and indeed all the other entrants). Your prize is complimentary entry to next Wednesday's CLT conference on Intellectual Property in the Fashion Industry. The IPKat looks forward to seeing you there.

Tuesday, 19 September 2006


Whose card?

The IPKat learns from MSN that American Express is on the receiving end of legal action thanks to its use of the (frankly annoying) ‘My life. My card’ slogan. Graphic designer and advertising art director Thomas O’Keefe claims that he has been using the trade mark "My card, my work" since 2003 and used it on his website to showcase his work. He also alleges that he sent his portfolio, resplendent with the tagline, to AmEx’s advertising agents seeking work.

The IPKat finds the idea of anyone getting trade mark rights in a phrase as banal as ‘My card’ repugnant.

New issue of Script-ed online

The latest issue of Script-ed, the University of Edinburgh’s online journal of all things law and techie is online. Coming to a computer screen near you are

*From child porn to China, in one Cleanfeed: Lilian Edwards.

Peer-reviewed articles
*Affidavit Evidence and Electronically Generated Materials in Nigerian Courts: Andrew I. Chukwuemerie.
*Parasiteware - Unlocking Personal Privacy: Daniel B. Garrie and Rebecca Wong.
*Regulating the Digital Television Infrastructure in the EU. Room for Citizenship Interests? Eliza Varney.

*Markets in Tradition – Traditional Agricultural Communities in Italy and the Impact of GMOs: Johanna Gibson.

Book reviews!

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