It’s been a busy week for copyright.
First came the 180 page judgment in Koger -v- HWM which saw the defendants successfully resist claims of copyright infringement and breach of confidentiality in relation to the software product they developed after leaving the employment of the plaintiffs. The judgment is available here (part 1 and part 2).
Secondly the recording industry was dealt a blow in the High Court when Mr Justice Charleton held that there was no provision in Irish copyright law to grant injunctions directing ISPs to take action against alleged illegal downloaders (EMI -v-UPC via @tjmcintyre). While UPC, the ISP in question, came in for come criticism from the judge, the Court was of the opinion that it was unable to take action since Ireland had not fulfilled its obligations under EU law in relation to copyright infringement. Naturally, there is quite a bit of commentary in the press (three articles alone in the Irish Times here, here and here). Understandably the record producers are not best pleased. Sharon Corr has also weighed in behind the producers. In my opinion the story is not at all black and white. Like most things in life things are not as simple as they may seem. It is hard to see this as just a case of illegal downloaders ruining the music business and denying artists from benefiting from their works.
There are many reasons why the producers are in trouble and some of it may even be their own fault. I am not convinced that there is a direct connection between the success of the artist and that of the record company. For example Thom Yorke thinks the music industry has had its day, not all artists are in love with the current business model. Finally Seth Godin provides a great analysis of the music industry and the issues facing it. In his opinion the problem is a failure to adapt to the internet and that attempts to control it by DRM, legal action etc. are destined to fail. The IPKat also agrees.
Finally the final draft of the ACTA treaty was published. This Treaty has been the subject of intense negotiation beween several countries and the EU in an effort to introduce a minimum international standard for the protection of intellectual property rights. The treaty targets counterfeiters and pirates and has sparked controversy in relation to illegal downloading, border measures and drugs. The best analysis so far comes from the IPKat (here and here)
From the vaults, this link appeared in one of my regular Google alerts. It details the position in 1981 regarding the Community patent and trade mark within the EU. The tone of the paper implies that the Community Patent would come into force sooner rather than later. Unfortunately this has not been the case. Interestingly the paper called for ECJ supervision of the EPO appeals process an element that is strikingly missing from the current proposal for a unified patent litigation system. This was one of the objections of the Advocates General put forward in their opinion to the Court. They were off the view that since it was proposed that the EPO Enlarged Board of Appeal would not be subject to CJEU supervision in violation the TFEU.
While the trade mark directive was adopted at the end of the 1980′s, thirty years on it seems that we are no closer to the magical European Patent.
One of the very few patent-law areas where the EU has competency is in relation to biotechnology inventions. Article 9 of the Biotechnology Directive (98/44/EC) specifies that patent protection for materials which contain genetic information extends only so far as the genetic material performs its function. In case C-428/08 Monsanto Technology LLC v Cefetra BV and Others the ECJ held that material containing a residue of DNA material which conferred resistance to Monsanto’s Roundup pesticide was not protected by Monsanto’s patents since the DNA did not perform its function. The Court also held that Article 9 represented full harmonisation in this regard and it was not open to Member States to provide for absolute protection to a DNA sequence as such.
These days challenges to national gambling laws are almost as frequent as AdWords cases (here’s a recent one). In the most rececnt, the ECJ holds that Sweden is entitled to limit the provision of gambling services to operaters having socially beneficial objectives.
Nice article on some of the tensions between IP protection and innovation.
Are most lawyers low esteem workers? According to Seth Godin:
If you want to hire people to do a job, to be cogs in the system and to do what they’re told, you might want to focus on people who don’t think very highly of themselves.
People with low self esteem might be more happy to be bossed around, timed, abused, misused and micromanaged, no?
And the converse is true as well. If you want to raise your game and build an organization filled with people who will change everything, the first thing to look for is someone who hasn’t been brainwashed into believing that they’re not capable of great work.
This is a really important speech from Joaquín Almunia, European Commissioner for Competition. He outlines how Competition law will contribute to the Europe’s 2020 agenda. Key areas include creating an efficient internal market for content, facilitating new cloud and mobile platforms, securing the public benefit of standards, making sure some the next web platforms are developed in Europe and so on. For IP practitioner this speech sums up the next ten years in Europe.
The market for patents is beginning to take off in the US with diverse business models and funding arrangements emerging. But what about Europe? Interestingly, the Commission is concerned and is exploring the creation of a market for IPRs in Europe.
The European Commission today published results of a program which monitored patent settlements in the pharmaceutical sector between July 2008 and December 2009 and in particular the effect of those settlements on the entry of generic medicinces after the expiraton of patent protection for originator medicines.
The exercise took place as a follow up to the Commission’s sectoral inquiry into the pharmaceutical sector which concluded in 2009 that between 2000 and 2008 originator pharmaceutical companies were using the patent system to delay entry of generic replacement medicines by an average of 7 months after the expiration of patent protection. In particular there was evidence that originators were compensating generic manufactures in return for delays in market entry.
In today’s release the commission has noted that although the number of settlements has doubled on an annual basis, the value of these settlements has fallen dramatically and that only 10% of the latest settlements are problematic from a competition point of view.
The Commission has vowed to continue monitoring the sector and to repeat the investigation into patent settlements again in 2011.
The press release is here.
Full details of the sectoral inquiry are here.
The European Commission Directorate General for Trade has just published a report on the latest round of negotiations of the Anti-Counterfeiting Trade Agreement (ACTA) which recently took place in Switzerland.
Transparency has been a hot topic in relation to ACTA and a working draft of the agreement was released in April after considerable political pressure. Although the theme of transparency continues with the negotiators having met with civil society representatives in order to exchange views, an updated draft has not been released to date.
ACTA has also been accused of having several unpleasant side effects including mandating the seizure of generic drugs in transit and the searching of personal music players by customs agents looking for pirated music.
The Commission report provides a concise summary of ACTA, and obviously in light of the perceived negative affects focuses mostly on what ACTA is not:
While ACTA aims at establishing effective enforcement standards for existing intellectual property rights, it is not intended to include new intellectual property rights or to enlarge or diminish existing intellectual property rights.
ACTA will not interfere with a signatory’s ability to respect fundamental rights and liberties. ACTA will be consistent with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) and the Declaration on TRIPS and Public Health. Participants reiterated that ACTA will not hinder the cross-border transit of legitimate generic medicines, and reaffirmed that patents will not be covered in the Section on Border Measures. ACTA will not oblige border authorities to search travellers’ baggage or their personal electronic devices for infringing materials.
Conspicuous by its abscence, however is a lack of specific assurance that ACTA will not provide for graduated repsonse or “three strike” treatment of internet users accused of illegal downloading. The report merely states that ACTA will not interfere with a signatory’s ability to respect fundamental rights and liberties.
The UK budget introduces a “patent box” with a ring-fenced low tax rate for certain patent income. In addition changes are made with regard to R&D expenses for SMEs.
The former Community Patent is now the EU Patent but is it any closer to reality? After almost 40 years senior Commission official thinks it is “dead in the water“. Barnier and Belgium vow to press on with the project. Look out for legislation and opinion of the CJEU towards the end of the year. Is it a case of good-cop/bad-cop. More balanced view from IPEG.
IP meets competition after Microsoft: Good review of possible Commission plans to introduce legislation mandating software interoperability in certain circumstances. Timely in light of recent complaint against SAP.
Commission launches consultation on net neutrality. Context of Digital Agenda.
China has a plan.
On the first day of the Belgian presidency the EU Commission published proposals for rules relating to translation arrangements for future EU Patents.
According to the press release:
A proposal on translation arrangements for a future EU Patent, the final element needed for a single EU Patent to become a reality, has been presented today by the European Commission. Today, obtaining a patent in Europe costs ten times more than one in the US. This situation discourages research, development and innovation, and undermines Europe’s competitiveness. That is why Europe needs to act so that innovators can protect their inventions at an affordable cost with a single patent covering the entire EU territory with minimum translation costs and without needing to validate that patent at a national level as they currently have to do. The new proposal builds on the successful three language system at the European Patent Office (EPO) and, if adopted, would drastically reduce existing translation costs.
The proposed system allows for a patent to be granted in only one of the official languages of the EPO i.e. English, French or German and for the claims to be translated into the other two. It is proposed that translation into another language would only be required in the case of a legal dispute where for example a copy of the patent must be provided in the language of an alleged infringer or in the language of the court adjudicating a dispute.
In order to make the patent system more accessible it is proposed that high quality machine translations would be available, although these translations would not have binding legal effect. Furthermore it is proposed that inventors from countries that have a language other than one of the EPO languages would be entitled to file in their own language and also would be entitled to have the costs of translation into an official EPO language reimbursed.
The language issue has long been one of the major obstacles to the adoption of an EU-wide patent system with suspicion that a single Member State was holding up progress. Nevertheless, the latter part of this year may be make-or-break time for the EU Patent.
The proposal may be downloaded here.
Despite the European Patent Convention having been in force since 1973, there is still no single European Patent or Community patent nor is there a unified patent litigation system either amongst the EPC subscribers or within the EU.
Even though a European patent application may be made at the EPO, patents are ultimately granted at national level and disputes and enforcement of patent rights are decided by national courts.
This makes it expensive and risky for rights holders to enforce their patent rights uniformly within the EU.
As DG-comp pointed out in its review of the pharmaceutical sector, 11% of patent infringement rulings with were litigated in more the one jurisdiction returned conflicting judgments. This is not a happy situation…except for the lawyers.
A step was taken last week when the European Commission recommended that the Council authorise it to begin negotiation of a European patent litigation agreement.
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