The IPKat - supporting prudent IP use

Aplin and Davis: a worthy purchase

noreply@blogger.com (Jeremy) — Wed, 02 Dec 2009 22:56:00 +0000

In the olden days when he was but a little kitten, the IPKat never had much use for Case Books. For the most part, they struck him as an excuse for not reading cases as reported in the Law Reports. Also, for some reason that he could never fathom, the case books on his undergraduate reading lists were never the ones that were designed for use with the recommended textbooks. The sole exception was the first edition of Tony Weir's Casebook on Tort, an edgy, querulous compendium of questions, observations and literary allusions which was not so much in-your-face as up-your-nose.

Nowadays, the compilation of Case Books has been elevated to an art-form, as their authors -- starting from the point of view of what the intellectually curious student needs rather than what the author wants to say or, sometimes sadly, what the publisher thinks it can sell -- provide something approaching a one-stop-shop for the diligent and thoughtful reader. Intellectual Property Law: Text, Cases, and Materials by Tanya Aplin and Jennifer Davis is one such book. According to the web-blurb from publishers Oxford University Press:

"* Focusing on domestic intellectual property law, while placing it firmly in its international context allows students to gain a broad and thorough understanding of IP as a global subject;
* Combines well-chosen excerpts from case law and secondary materials with stimulating commentary;
* Carefully written and developed to map closely onto intellectual property law courses;
* Provides a selection of relevant further reading;
* Supported by a specially designed Online Resource Centre which provides updates of recent developments in the law and links to relevant websites;
* This book provides a complete resource for undergraduate and postgraduate students of intellectual property law. It is designed to be the first of its kind, in combining extracts from major cases and secondary materials with critical commentary from experienced teachers in the field".

Fortunately for the book's intended users, the text is rather less telegraphic -- and it really delivers on its promises. The intelligent use of extracts of articles, books and other secondary materials not only provides an effective functional framework within which to portray the primary materials, but also helps the reader get a taste of the sheer internationality of IP law and its place next to adjacent streams of economic and philosophical thought. The spread of topics is generous too: subjects such as remedies, which examiners are sometimes reluctant to examine, are given their rightful space.

In short, this is not only the book the IPKat would have liked to have had as a student; it's the book he would have been proud to write, if the time, opportunity, energy and inspiration had conspired to combine.

Bibliographic information: xlviii + 861 pages. ISBN 978-0-19-927157-3. Paperback,

Price: £37.99. Updates here; weblinks here; book's web page here. Rupture factor: substantial.

IPKAT v IPAT: your chance to advise!

noreply@blogger.com (Jeremy) — Wed, 02 Dec 2009 14:29:00 +0000

The IPKat is not just a commentator on IP-related matters; he also owns a little patch of intangible estate. This is his Community trade mark registration E8150286 for the word IPKAT, with a filing date of 11 March 2009 and a publication date of 25 May 2009. As a goodwill gesture to the entente cordiale, he opted for French as the mark's second language and the mark is registered for, among other things, "Education services; training services; arranging and conducting conferences, seminars, symposiums" in Class 41.

Artwork: there are various other IPATs around, it appears, but only one IPKat ...

OHIM has now notified the IPKat that his precious mark has been revealed as a possible obstacle following the Office's search in relation to this application to register the word mark IPAT. This application has been made by a Dutch company, AT Osborne BV, and it covers, among other things, "Education; provision of training; entertainment; sporting and cultural activities", also in Class 41. This application has a filing date of 4 April 2009 and was published on 9 November 2009.

At this point the IPKat has to decide: should he (a) oppose the application by AT Osborne BV on the ground that, given the similarity of the marks and the identity/similarity of the services, there is a likelihood of confusion among relevant consumers, (b) seek an assurance or undertaking from AT Osborne BV that it will limit its specification to reflect the services it actually provides or to exclude the services provided in the field of law, business, finance, media, telecommunications, information technology, intellectual property, property, management, banking, security and tax -- these being areas specified in the IPKat's registration; (c) do nothing because, while the marks are only one letter different and have some visual and possible aural similarity, the meaning of "IPKAT" as an "Intellectual Property Cat" results in there being so strong a conceptual contrast that the marks are insufficiently similar to be confused; (d) do nothing on the basis that there's no realistic likelihood of confusion; (e) adopt some other strategy?

At the top of the side bar of this weblog there's a poll. Do please let the IPKat know what you think he should do. He's ever so curious to see if there's a consensus. Merpel moans, why didn't you register me too? Aren't I worth anything?

Wednesday whimsies

noreply@blogger.com (Jeremy) — Wed, 02 Dec 2009 05:54:00 +0000

Happy mid-week, everyone! As the count-down to the weekend begins,the Kats are making themselves unusually industrious in trying to ensure that none of their readers take a break without plenty of exciting IP issues to ponder over.

Copywatch, the compliance arm of the UK's Copyright Licensing Agency Ltd (CLA), offers a reward of up to £100,000 for any employee who blows the whistle on unlawful copying of books, magazines or journals by his employer. The IPKat, who is always hard up for cash, was looking enviously at all his friends who had regular jobs and wondered how tempted they'd be to divulge the unlawful workplace copying. Obviously, they'd want to keep a low profile -- but it seems that infringing employers are also given a low profile, since a brief internet search could not identify any instances of pay-outs or embarrassed businesses. More depressingly, if you search 'copywatch' your results are largely made up of what look like illicit traders in copy watches which imitate genuine Rolex, Cartier et al. Readers, if you know of any pay-outs, do let the Kats know ...

If you've always wanted patent protection in Montenegro but were too shy to ask, there's some good news for you. According to the Petosevic Newsletter, a new law of 14 October came into force a month later, on 14 November, extending European patents to that small but attractive Balkan state. If you want to know precisely how, you'd better ask a local expert.

UPDATE: The IPKat has been advised by the Director of the Montenegro Office that, although the agreement between Montenegro and the EPO entered into force on November 14, the date of the entry into force of the Extension Agreement will be determined by an exchange of notes between the EPO and Montenegro. This exchange has not yet taken place. You will therefore have to wait a little while longer before being able to designate Montenegro as an extension state for a European application. The IPKat's advice is to keep an eye on the EPO website for announcements.

A press release from WIPO yesterday, "WIPO Director General Stresses Role of Innovation in Addressing Global Challenges at WTO Ministerial" (here), raises an interesting possibility. Citing (i) the path to economic growth and (ii) climate change as the world's two most pressing problems, WIPO Director General Francis Gurry observed that "fifteen years ago, North East Asia – Japan, Republic of Korea and China – produced 7.6% of international patent applications. In 2008, they accounted for 26.2% of all international patent applications". The IPKat remembers reading recently that the past 15 years or so have coincided with a serious acceleration of the melt-rate of American glaciers. As Francis Gurry says, "Innovation is the space between problem and solution". The obvious solution to the American glacier melt-down is therefore either to reduce the rate at which the Asians file international patent applications or increase the rate at which others do so ...

Here's announcing the 2010 Annual Intellectual Property Law Conference, organised by CLT Conferences and featuring for the first time IPKat team member David Pearce (owner of the fabled Tufty). David speaks on "Patentable Subject-Matter: Where Are We Now?", a topic on which, readers of this weblog may recall, David has occasionally ventured an opinion or two. Other bloggers on the programme are Michael Burdon (Olswang, and part of the PatLit team) tackling "Faster and Cheaper? A Current View of IP Litigation Reform" and David Musker (Jenkins), from the Class 99 design law weblog, speaking on "Registered and Unregistered Designs". The date: Thursday 28 January; the venue: somewhere in Central London. The programme: here. There's even a new competition, for which please see the next item in this post.

Proverbs is the name of the game. The IPKat loves the wisdom encapsulated in proverbs such as "Every cloud has a silver lining", "A fool and his money are soon parted" and "You can't teach an old dog new tricks". He even likes the proverbs that contradict one another like "Many hands make light work" and "Too many cooks spoil the broth". His only disappointment is that there don't seem to be any wise old proverbs that are based on intellectual property concepts. The entrant who comes up with the best new proverb for a world in which IP is supreme will be given complimentary registration to the Annual Intellectual Property Law Conference 2010 (that's worth £495 + VAT), plus the six CPD points received for attending it. Please send your proverbs to the IPKat by email here, using the subject line "Proverbs", by not later than midnight (GMT) on Thursday 14 January 2010. All are eligible to enter, including Asda employees and George ...

That Canon Mystery Case just refuses to go away. On Monday the IPKat speculated that a new reference for a preliminary ruling, Case C-449/09, might be a fresh version of the Canon reference on a point of trade mark law that the Court of Justice of the European Union [as we must now call it] ruled to be "manifestly inadmissible" in that the reference contained the question but not much else. The Kat has since heard from his Bulgarian friend Emil the Cordial, who tells him: "Dear IPKat: The mystery is going on. Case C-449/09 Canon is a rebound of the Canon Mystery Case. Another well-informed source says that this reference might be even more manifestly inadmissible: this time it's the question which is missing".

Cancúnterfeit conference opens

noreply@blogger.com (Jeremy) — Tue, 01 Dec 2009 21:50:00 +0000

Now's the time for all enterprising counterfeiters to get busy with their felonious craft, since so many of the world's experts in dealing with them are in Cancún, Mexico, for a midwinter break. According to the joint press release released by WIPO on behalf of IMPI, INTERPOL, WCO, WIPO, BASCAP and INTA:

"Senior decision makers from governments, law enforcement, customs and the private sector are gathering in Cancún for the Fifth Global Congress on Combating Counterfeiting and Piracy to identify solutions to the worldwide trade in fake products which pose a threat to health and the global economy.

More than 500 delegates from nearly 30 countries are attending the three-day meeting (1-3 December) hosted by INTERPOL and the Mexican Institute of Industrial Property (IMPI) to share proposals in reducing the impact of fake goods and identify and build upon successful strategies already in place.

Supported by the World Customs Organization (WCO) and the World Intellectual Property Organization (WIPO) with the co-operation of the world’s business community, represented by the International Chamber of Commerce (ICC) through its Business Action to Stop Counterfeiting and Piracy (BASCAP) initiative, the International Trademark Association (INTA) and the International Security Management Association, the Congress provides a unique international public-private sector partnership.

INTERPOL Secretary General Ronald K. Noble opened the Congress saying the threat posed to the health and safety of individuals and the potential damage to economies should not be underestimated [They're certainly not underestimated by IP rights owners, who are often accused of inflating the extent of their loss. The only people who underestimate it are the folk who allocate so little public funding for fighting counterfeits where they're made and sold, and so much funding for travel to Cancún], citing recent joint initiatives as evidence of the will and ability to take the fight to the criminals.

“Recent successful operations, such as Operation Pangea II [which is a small step in the right direction and a confidence-boost, here] tackling the online sale of counterfeit and illicit drugs, have shown that coordinated action between the public and private sectors does have results, but more importantly it shows that we are taking the fight to the counterfeiters,” said Secretary General Noble. ...

“The social and economic losses associated with these illegal activities, such as the loss of jobs and tax revenues, constitute a critical concern for governments across the globe,” said IMPI Director General Jorge Amigo Castaneda. [the loss of tax revenues is itself a justification for far greater investment in fake-fighting] ...

... WIPO Director General, Mr Yo Takagi, Assistant Director General said ...
“The tough economic conditions confronting governments, businesses and citizens around the world, at a time when the trade in fake goods continues to escalate, put into sharp relief the need to find practical, realistic and effective solutions to reduce the negative impact of counterfeiting and piracy and to promote greater respect for intellectual property rights around the world,” ...

Michael Schmitz, WCO Director of Compliance and Facilitation, added, "Tackling the trade in counterfeit and pirated products requires a multi-pronged approach by all stakeholders [Multi-pronged! Just watch those flashing forks ...]. Dangerous counterfeit goods and even more shockingly fake medicines cannot be allowed to continue flowing across borders unhindered. The health and safety of consumers around the world is paramount [The border issue raises a question that some countries seem reluctant to tackle: how much do border guards earn through regular salaries when compared with bribes? How well are they trained and supervised? What happens to goods detained at the border? And are the fake medicines given an unhindered passage because they are in transit and not deemed to be 'on the market'?].

“The WCO will be doing all it can in close co-operation with its international partners to stop this vile trade through enhanced Customs capacity building, an improved Customs-business dialogue, better co-ordinated border management, and rolling multi-agency enforcement operations," Schmitz stressed.
...

Leaders at the Congress are expected to present their views on strategies to deal with the increasing trade in counterfeit and pirated products. The OECD estimates that the trade in fakes crossing international borders alone is valued at more than US$200 billion annually [This isn't so much more than the total spent by the British government in subsidising the profligacy and/or negligence of its banks in the past year or so]. During the Congress, BASCAP will deliver a report to delegates presenting new economic data on the cost of counterfeiting, including the impact on jobs, reduced foreign investment, tax losses, and increased spending on health and law enforcement. BASCAP also will present new research on why consumers buy fake products and what it will take to change those purchase habits".

The Kat will be watching keenly for further developments.

Holiday gifts for the IP geek

noreply@blogger.com (Mark Schweizer) — Tue, 01 Dec 2009 14:17:00 +0000

What to give an IP geek for Christmas or Hanukkah? A book, yes, always a good idea. But maybe something a bit lighter than Trademark License Agreements Line by Line: A Detailed Look at Trademark License Agreements and How to Change Them to Meet Your Needs by Erik W. Kahn.

For the copyright lawyer, this Kat recommends Edward Samuels' Illustrated History of Copyright. It's out of print, and the author has made available an online version, but you can still get new copies from Amazon - definitely worth it. As Raymond Dowd from the New York Law Journal put it:

With its sound scholarship, The Illustrated Story of Copyright succeeds brilliantly. In a mere 250 pages it makes clear and resolves seemingly disparate elements of an area of law that dominates our collective economic and cultural future. But this is not its true success. Its highest achievement is communicating in a novel manner one man's love affair with the tangible achievements of the human mind in all forms to a general audience. General practitioners will find demystification, copyright practitioners will find depth. Buy it.

If there is one nit to pick with the "Illustrated Story" it's that it is a bit US-centric.

For the trade mark specialist, Trademarked: A History of Well-known Brands, from Airtex to Wrights Coal Tar, by David Newton, also provides some light and entertaining reading. Synopsis:

In the first 30 years of trade registration—between 1876 and 1906—more than 250,000 marks were registered in Britain. In this book, David Newton—formerly Head of Patents Information at the British Library—has selected 220 of the most interesting and curious of those early brands. Shell originated with one Marcus Samuel selling antiques and curios, including sea shells, in Smithfield in 1833; it was only when his son visited the Caspian Sea and saw an opportunity to export oil from Russia that trade in the better known product began. An advertising campaign for Listerine mouthwash, originally a disinfectant for surgical procedures, coined the phrase “always a bridesmaid, never a bride.” From Carlsberg beer to Triumph cars, from Lea and Perrin sauces to Beecham's pills, we learn the history of these brands, the companies which registered them, and how the brands have developed over the years.

Definitely on the light side are the recommendations for the patent attorney - but the usual fare in patent law such as Patent Infringement Worldwide: Claim Interpretation - Infringement - Damages (Jan Busche, Michael Trimborn, Bernd Fabry (eds)) is no easy reading at all, so some counterbalance is in order.

Patently Absurd: The Most Ridiculous Devices Ever Invented by Christopher Cooper provides such light reading. Publisher's description:

Patently Absurd explores the funnier side of our inventive spirit by featuring actual patented products that have to be seen to be believed. The book features such inventions as "an animal powered drive," where an animal is used to move a belt and power a vehicle and a bird diaper to keep those pet birds clean. Gloves for couples who wish to hold hands in cold weather is the outcome of another patented idea, an improvement on ordinary gloves that are "unsatisfactory and indeed unromantic," where two hands can be inserted in one glove. An introduction outlines the background to patenting an invention and its history. Inventions are taken from patent offices internationally and are grouped in sections covering sport and exercise, household, animals, transport, clothing, and leisure.

Similar in content, but out of print, is Patently Ridiculous: Scuba-diving Dogs, Beerbrellas, Musical Toothpaste and Other Patented Strokes of Genius by Richard Ross. You can still get some new copies on Amazon, though. This collection of bizarre inventions concentrates on US patents.

Further recommendations by IPKat readers in the comment section are very welcome!

Skype not Joltid from its licence

noreply@blogger.com (Jeremy) — Tue, 01 Dec 2009 05:54:00 +0000

The IPKat is playing catch-up at the moment, since so many big decisions have popped out of the courts without his having had the chance to savour them. One such decision is Skype Technologies SA v Joltid Ltd and others [2009] EWHC 2783 (Ch), a Chancery Division (England and Wales) ruling of Mr Justice Lewison on 6 November, which takes a little thinking about. Avid readers will notice that this dispute has fortunately already been picked up by the AmeriKat here, here and here, but the Kat doesn't feel that this has absolved him from having to get his head around it too.

The story goes like this: Skype Technologies was a member of a group of companies that offered free software downloads that let users communicate through free voice and video calls, by sending instant messages, SMSes or files, and by making or receiving low-cost calls to and from landline and mobile numbers. Joltid owned the copyright in a piece of software called the Global Index, which lay at the very heart of Skype's business.

Back in November 2003, Joltid granted Skype a worldwide licence to use a form of its software. Under this licence, Joltid kept sole control over the source code (that's the bit that most humans can read and some can even understand). Under clause 19 of the licence, the United Kingdom was given exclusive jurisdiction to determine issues that arose under it:

"Governing Law and Jurisdiction. Any claim arising under or relating to this Agreement shall be governed by the internal substantive laws of England and Wales and the parties submit to the exclusive jurisdiction of the English courts".

In March 2009 Joltid purported to terminate the agreement on the ground that Skype had wrongfully kept, used, accessed and modified the source code. Skype instantly sought a declaration that the purported termination of the agreement was invalid and that the licence therefore continued in force. Naturally, Skype kept on using the source code.

In May Joltid served its defence and counterclaim. According to Joltid, Skype had repudiated the agreement and infringed its Estonian and UK copyright in the source code as well as misusing its confidential information. What's more, it said, the licence had been validly terminated. In September Skype's owner said it agreed to sell a 65% stake in the group to investors. In response Joltid registered its copyright in the source code with the US copyright office and then sued Skype, the whole group of companies, its owner and the new investors. None too happy about the prospect of US litigation, Skype sought an anti-suit injunction to restrain any further steps being taken against it in the US, plus discontinuance of those proceedings themselves.

According to Skype, applying (i) clause 19 of the agreement and (ii) Article 23 of Council Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters, it was entitled on the balance of convenience to the relief it sought. What's more, since Joltid had actually supplied it with the source code, either Joltid was estopped from alleging a breach of the licence or it had waived its right to demand compliance with the strict terms of the licence.

Lewison J allowed Skype's application. In his view:

* Whether a claim fell within an agreed jurisdiction clause was a question of interpretation of the clause in question, which had to be decided according to national law. In this regard there was no distinction to be drawn between interpreting (i) a clause in an agreement that conferred jurisdiction on the courts of a particular territory and (ii) a clause in an agreement that conferred jurisdiction on a particular tribunal, such as an arbitrator.

* The standard considerations that arose in arguments about forum non conveniens should be given little weight in the face of an exclusive jurisdiction clause, where the parties had chosen the courts of a neutral territory in the context of an agreement with worldwide application. If this were not so, the exclusive jurisdiction clause would be deprived of its intended effect since those standard considerations would almost always trump the parties' deliberate selection of a neutral forum.

* In this case, the counterclaims against Skype in the US fell within the scope of clause 19. Since the validity of the licence agreement was not in dispute, even if it had been terminated the US proceedings were themselves a breach of contract.

* In any event, the balance of convenience favoured granting the anti-suit injunction.

The big point to note here, says the IPKat, is that Skype's operations, and therefore the chances of something going wrong, were pretty well global, which meant that in the absence of a fairly serious attempt to pin all the litigation on one bunch of laws and one jurisdiction, Skype and Joltid could end up doing a Budweiser and litigating everywhere. Merpel adds, this consideration would still apply even if the procedural and substantive contract and IP laws of all the likely jurisdictions were far more closely harmonised than they are at present.

More about Skype here

How to pronounce Skype, Adobe and Linux here

eBay told: "pay €1.7million" in LVMH dispute

noreply@blogger.com (Jeremy) — Mon, 30 Nov 2009 18:49:00 +0000

The Guardian has just reported ("Illegal perfume sales cost eBay £1.5m in fines") that a Parisian court has ordered eBay to pay more than £1.5m for breaching an injunction that banned its users from trading in goods made by French luxury conglomerate Louis Vuitton.

Right: vintage 1950s Max Factor Sophisti-Cat perfume

The court has apparently ascertained that the online auction host had not done enough to prevent the trade of goods made by LVMH, which owns brands such as Louis Vuitton, Moet Hennessy, Givenchy and Christian Dior. The article adds:

"The auction website had been banned from letting such sales take place following a 2008 court case [This ruling, translated into English, will appear in the February 2010 issue of the European Trade Mark Reports, unless the IPKat can get its release accelerated] but the court found that there had since been more than 1,300 incidents in which users advertised cosmetics and perfume made by the company.

LVMH said the award was a victory in its fight to retain the right to "selective distribution" - control over which outlets are able to sell its goods.

"This decision constitutes an important step in the fight against unlawful practices," said the company. "Selective distribution ensures the security and quality of products for consumers. It generates numerous jobs and contributes to the ongoing worldwide success of European luxury goods brands." [Selective distribution is one of those areas where the tectonic plates of IP protection and competition policy grind against each other]

In the belief that its high-value brands will be hurt if they can be resold online, LVMH has been waging an ongoing battle against internet retailers such as eBay for several years.

Last year it registered a significant victory in which the auction website was ordered to pay £30m in damages.

That ruling took place after it emerged that fake goods using LVMH's brands were being sold on eBay, but the ruling extended to preventing the sale of any of the company's goods on the site - regardless of whether they were pirated or not.

In a statement, eBay said the fine was "disproportionate" and that it would be appealing the decision in higher courts, since it believes that the injunction constitutes an unfair restriction of trade.

"Today's outcome hurts consumers by preventing them from buying and selling authentic items online," said Alex von Schirmeister, the general manager of eBay in France. "The injunction is an abuse of 'selective distribution'. It effectively enforces restrictive distribution contracts, which is anti-competitive."

The French conglomerate has also taken action against Google, which it says is acting illegally by selling search advertising using the company's trade marks". [Despite some rumours to the contrary, there is still no evidence that the Court of Justice of the European Communities, which is currently considering a number of questions arising out of this dispute, will give its ruling before the end of the year.]

What's not clear to the IPKat is whether the decision represents a triumph for Louis Vuitton because of its outcome or a disappointment for luxury brand owners given the relatively small size of the award in contrast to the turnover in deals involving luxury goods. The Kat is however sure that the saga will not stop at this point: both in terms of profits and principles there's far too much at stake. Merpel says, on behalf of all cats I'm thinking of bringing a class action against all the perfume manufacturers who make perfume out of cats.

See also reports from the BBC, Times Online, Bloomberg

Art for Cats online auction here

Monday miscellany

noreply@blogger.com (Jeremy) — Mon, 30 Nov 2009 18:03:00 +0000

Now that the Canon Mystery Case (see earlier posts here and here) is no longer so mysterious (thanks, once again, to all the IPKat's readers), there's another mystery. A well-informed source tells the Kat that there's another reference to the Court of Justice of the European Communities involving Canon: it's down on the list as Case C-449/09 and there is no sign yet of any documentation. Could this be the same Bulgarian case returning to Luxembourg in a less manifestly inadmissible manner? Are any of this blog's readers perchance involved in it? Do tell, please ...!

Toshiko Takenaka's publishers, Edward Elgar Publishing, are donating a copy of her book, Patent Law and Theory: a Handbook of Contemporary Research, to be raffled for the benefit of one of those fortunate enough to attend her seminar on Tuesday 8 December (details here, if you'd like to attend). IPKat team member Jeremy is fond of this book, which even with the online discount costs £175.50, since he contributed a little chapter to it.

The ever-enthusiastic Emir Aly Crowne-Mohammed, Assistant Professor at the University of Windsor and a bit of a blogger himself, is also Co-Chair of the Harold G. Fox Moot. It is in this capacity that he writes to ask the IPKat to spread the word. On 19 and 20 February the Moot will be upon us all. Although it takes place in Toronto, there is no doubt that this great Canadian tradition, now in its second year, will make itself felt wherever IP is argued about. For full details be sure to click here. The IPKat very much enjoyed the mooting in which he participated, and hopes that all readers within this moot's catchment area will give it their fullest support.

Right: Harold G. Fox, in one of his lighter moments ...

Usually when the IPKat receives a free book in his post, it's because someone wants him to say something nice about it -- which he generally does. Sometimes, though, he receives a book which is a complete surprise to him. One such book, received and greatly enjoyed last year, was The Lives of Ants by Laurent Keller and Elizabeth Gordon. Another, arriving last week and definitely too heavy to carry back to the post office, is OUP's Media Libel Law 2009-10: Reports from all 50 States, the Federal Courts of Appeals, US Territories, Canada and England. This mighty tome, weighing rather more than a small grandchild, has been compiled by the Media Law Resource Center, Inc, and the grim news is that, if you read four pages a day, the next edition is likely to be out before you finish this one. Says the IPKat, who knows little about libel except how to do it. says "Buy it!"

New Draft EPO Guidelines

noreply@blogger.com (David) — Mon, 30 Nov 2009 17:38:00 +0000

The EPO have just released a draft version of the Guidelines for Examination, to be implemented from 1 April 2010. This is when the Administrative Council decisions CA/D 2/09 and 3/09 come into force, making changes to the EPC that will change the way applicants have to deal with unity of invention and the final dates for filing divisional applications.

The IPKat has not yet had chance to read through all 594 pages of the Guidelines, but noticed in flicking through them the following new passages that may be of interest to his readers. This is an example of how the EPO sees the new rules on divisionals working in practice:

"1.1.1.4 Second- and subsequent-generation divisional applications

Voluntary division (Rule 36(1)(a))

For the filing of second-generation divisional applications (i.e. divisional applications based on an earlier application which is itself also a divisional), the event which starts the period for voluntary division is the first communication in respect of the earliest application for which a communication has been issued. This is determined as illustrated by the following example:

Example 1

- EP1 is the original European application,

- EP2 is a divisional application based on EP1 and

- EP3 is a divisional application based on EP2.

Where a first communication (see IV, 1.1.1.2) has already been issued for EP1 when EP3 is filed (this is the usual situation), the period for voluntary division of EP2 (by the filing of EP3) is calculated from the date of notification of this first communication in respect of EP1.

However, all that is required is that EP2 is still pending when EP3 is filed; EP1 does not need to be pending. This is because EP1 is the earliest application in respect of which a first communication has been issued (used to calculate the period for voluntary division), but it is not the earlier application which has been divided (this is EP2), and it is the earlier application (EP2) which must be pending according to
Rule 36(1).

If no first communication has been issued for either EP1 or EP2 when EP3 is filed, the divisional is filed in time according to Rule 36(1), provided that EP2 is still pending.

Voluntary division in branched families of divisional applications

In cases where there are two divisional applications each derived from the same earlier (parent) application, the periods for voluntary division of the two divisional applications are calculated independently:

Example 2

- EP1 is the original European application,

- EP2a is a divisional application based on EP1 and

- EP2b is a divisional application based on EP1.

In example 2, the period for voluntary division of EP2a is calculated with reference to the appropriate communication issued in respect of EP1 or EP2a (as indicated under example 1 above) but not EP2b.

Likewise, the period for voluntary division of EP2b is calculated with reference to the appropriate communication issued in respect of EP1 or EP2b but not EP2a. These cases are treated in the same way as example 1 above, but ignoring any divisional applications which are not in a direct line from the divisional being filed to the earliest application.

Mandatory division (Rule 36(1)(b))

In example 1, the period for mandatory division of EP2 (by filing EP3) is calculated from the first communication in examination raising a specific objection of lack of unity for the first time in respect of EP2 (EP2 being the immediate parent application - see IV, 1.1.1.3)."

The IPKat thanks the EPO for making the new rules so clear and easy to follow. He is now sure that there will be no problems at all come 1 October 2010.

Tufty wonders how the EPO will be forcing applicants to file those divisionals that the EPO considers to be mandatory. Aren't all divisional applications voluntary?

More long division here. More legal obfuscation here.

Teva v Merck - not a sight for sore eyes

noreply@blogger.com (David) — Mon, 30 Nov 2009 08:33:00 +0000

Article 123(2) of the European Patent Convention states, "A European patent application or a European patent may not be amended in such a way that it contains subject-matter which extends beyond the content of the application as filed". The same rule also applies to UK patents under section 76 of the Patents Act 1977 (implemented in a "cack-handed way", according to Jacob LJ here). The basic rule for both is that no amendments can be validly made which would allow something to be claimed (or even described) that was not clearly also there when the application was filed.

The above issue, among several others, arose recently in the case of Teva v Merck, a judgment of Mr Justice Floyd from last week and available from BAILII here. Teva applied for revocation of Merck's EP(UK) patent 0509752, relating to "Ophthalmic compositions comprising combinations of a carbonic anhydrase inhibitor and a beta-adrenergic antagonist", an eye drop formulation for the treatment of glaucoma. After the usual extensive analysis, Floyd J found that the patent was invalid for being obvious over an earlier scientific article in light of the skilled person's common general knowledge (see PatLit here for more).

What the IPKat found more interesting, however, was the argument over added matter relating to one of the claims of the patent. The claim as granted covered a method for making the eye drop formulation, and included a final step of "adjusting the pH of the composition obtained to 5.0-6.0 by the addition of a suitable reagant". This feature was not in the claims as-filed but was added during prosecution, imported from one of 33 examples in the specification, which were whittled down to only 10 in the granted version. Although several of the examples had the step of adjusting pH, none had the range 5-6 together with the composition being claimed. As Floyd J put it, "Once the claim is limited to the specific co-formulation of dorzolamide and timolol, there is no basis for the disclosure of a process for making a co-formulation by adjusting to a pH other than 5.5 to 6.0" (para 70).

Merck tried to correct this by further limiting the claim to the range 5.5-6.0, but this range was only specified in another example that related to a composition that did not fit with the rest of the claim, because it had some further features not in the claim. The amendment by itself would therefore amount to "an impermissible intermediate generalisation" (para 72). Floyd J found that the claim was invalid for added matter, and the amendment could not be allowed.

The IPKat thinks that this is a good example of a case where everything was thrown in to the application at the outset (33 examples seems like a lot), but where not enough thought went into ways in which the different examples could be linked together. In this case, putting in claims to different pH ranges probably would not have saved the patent from being invalid for other reasons. It could however have easily been more important, given the very small differences that often make all the difference, particularly in pharma patents.

That Mystery Canon Case: more information

noreply@blogger.com (Jeremy) — Mon, 30 Nov 2009 05:56:00 +0000

The IPKat continues to receive correspondence concerning Case C-181/09 Canon Kabushiki Kaisha v IPN Bulgaria OOD, a reference for a preliminary ruling on European trade mark law from the Sofiyski gradski sad (Bulgaria) which the Court of Justice of the European Communities (Fifth Chamber) declared to be "manifestly inadmissible". Since the Court's Order was only in French and Bulgarian, the IPKat summoned the help of his readers. He has now received more than 40 responses, a new record.

The IPKat's good friend Ventsi Stoilov has produced an entire English translation (here). For those who don't have time to read it, Simon Roberts offers a succinct explanation:

"This action concerns goods being exported from Bulgaria to Serbia. The Bulgarian Court wanted to know whether Art5.3(c) of the trade mark directive, which concerns the export or import of articles bearing "the mark", applies only to goods coming from the rightholder -- or does it apply to any goods bearing the mark?

The manifest inadmissibility seems to have arisen because the Bulgarian Court referred only the question, with no explanation of why they needed the question answered and with no explanation of the facts of the case. Such a referral is inadmissible at least in part, because other states are not then able effectively to comment on the referred question".

The IPKat's fellow Class 46 blogger Edith Van den Eede explains the mechanism of references for prelimary rulings:

"The ruling refers inter alia to the teaching of Telemarsicabruzzo and Others (1993, C-320/90, par. 6), stating that the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the referring court should define at the very least, explain the factual circumstances on which those questions are based.

The Court also stresses that it is important for the referring court to set out the precise reasons why it was unsure as to the interpretation of Community law and why it considered it necessary to refer questions to the Court for a preliminary ruling. It is essential that the national court should give at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and on the link it establishes between those provisions and the national legislation applicable to the dispute.

Therefore, the order for reference must be sufficiently complete and must contain all the relevant information not only to allow the Court to answer but also to permit the governments of the Member States and other parties entitled to submit observations in accordance with article 20 ECJ’s Statute ...".

Emil Markov adds an Bulgarian perspective:

"Sofia City Court just sent the judges'' entire file to Luxembourg and added a reference containing the question only. You've learned already about the lack of factual briefing and the missing legal context or reasoning for the question, and of the lack of any connection to the applicable national law. ...

Even so ..., the question is not entirely dull. Somehow it goes beyond Silhouette etc. Said Gulmann, J. then: 'Art. 7(1) of Directive 89/104 cannot be interpreted as meaning that the proprietor of a trade mark is entitled, on the basis of that provision alone, to obtain an order restraining a third party from using his trade mark for products which have been put on the market outside the European Economic Area under that mark by the proprietor or with his consent.' Now the new question might be interpreted as follows: Can this proprietor restrain a third party from importing products which have been put on the market outside the EEA under that mark by the proprietor or with his consent according to Art. 5(3)(c) of Directive 89/104? Does Art. 5 (3)(c) prohibit import of goods under a sign identical or similar (...etc.) to this mark only (under counterfeiting signs only)?".

The IPKat once again thanks everyone who has written to him. He says, it has been a pleasure to learn from you all.

BGH: misleading use of the symbol ® - the "Thermoroll" case

birgitclark@hotmail.co.uk (Birgit) — Sun, 29 Nov 2009 20:32:00 +0000

In a notable decision of 26 February 2009 (case reference I ZR 219/0 “Thermoroll”) - which was only recently published in its entirety - the German Federal Supreme Court (BGH) decided that it is “significantly misleading” and consequently an unfair commercial practice under section 5 German Unfair Competition Act, if someone uses a trade mark in conjunction with the ® symbol without being the owner or licensee of the mark or without being otherwise authorised. Things may be judged differently only if the unauthorised user is the proprietor mark of a trade mark that is similar to the trade mark that was used together with ® symbol and use of the mark amounts to “genuine use” of the registered mark under Article 26 (3) German Trade Mark Act.

The facts of the case are a rather complicated and may be simplified as follow: both parties, the claimant and the defendant, were companies active in the field of curtains and blinds and involved in a dispute over the use of the mark Thermoroll. To make things even more complicated, the mark Thermoroll was a registered trade mark which, inter alia, covered blinds, curtains, but which was owned by third party that was not involved in the court case. The claimant, however, was the owner of a trade mark registration for the similar mark Termorol [IPKat: minus the “h” and with one “l” only] but had [for valid reasons which we will not mention since they would confuse matters further] used advertising material that included the sign Thermoroll together with the symbol ® before February 2006 even though it (the claimant) was only licensed to use Thermoroll from February 2006 onwards. The defendant filed counterclaims for information and damages against the claimant arguing that that the use of the mark Thermoroll in combination with the ® symbol constituted misleading advertising under section 5 of the German Unfair Competition Act.

The Higher Regional Court of Karlsruhe, the court of appeal, had decided in favour of the claimant and had taken the view that the slight differences in the spelling of the marks (Thermoroll v Termorol) were not significant enough to mislead consumers and so fell out of the ambit of the Unfair Competition Act.

On further appeal, the BGH disagreed with the Karlsruhe court and decided that the claimant’s unauthorised use of the mark “Thermoroll®” before 16 February 2006 constituted misleading advertising. The fact that the claimant had been authorised to use the similar mark “Termorol”, which was registered for identical goods, did not change that its use of the “Thermoroll” mark was misleading.

The court held that the use of a trade mark used together with the ® symbol suggested two things to the relevant consumers: firstly, the existence of a registered trade mark spelled exactly as used in the advertising and secondly, that the advertiser was authorised to use this mark in its advertisement, either as trade mark owner or licensee.

The court took the view that use of a third party trade mark which not merely “insignificantly” differed from the advertiser’s own trade mark was caught as an unfair practice under unfair competition law. The differences between both marks could only be considered as insignificant if the mark used merely differed in elements which did “not alter the distinctive character of the mark in the form in which it was registered” as stipulated by Article 26 (3) German Trade Mark Act. Article 26 (3) German Trade Mark Act relates to “genuine use” of a trade mark.

Applying these principles, the court decided that use of “Thermoroll” did not constitute genuine use of “Termorol” mark under Article 26 (3) German Trade Mark Act due to the aural and conceptual differences between both marks and due to the fact that the relevant consumer would associate prefix “Therm-” with heat. Consequently, the differences between he marks altered the distinctive character of the registered mark and had therefore crossed the threshold of an “insignificant alteration”.

Given the claimant itself had considered the “Thermoroll®” mark as very important and had expected that its use would have a positive effect on consumers, it had obtained a competitive advantage by implying to be authorised to use the third party trade mark. The court found that the relevant consumers had been mislead and had taken a purchasing decision that they would otherwise not have taken. The court emphasised that it was a main purpose of prohibiting misleading practices to prevent competitors from using false information in the course of trade.

IPKat comment: the BGH provides us with some food for thought. The “take home” point appears to be that advertisers should make sure to use the mark as registered when using it in combination the ® symbol. Otherwise, in cases where the use of the similar mark crosses the threshold of an “insignificant” alteration, there is a genuine risk of falling within the ambit of Unfair Competition Law. In other words: using the ® symbol in combination with a registered trade mark in the course of one’s business (i.e. in advertising) without being authorised to use the mark will be seen as significantly misleading and consequently constitute an unfair commercial practice under the German Unfair Competition Act.

This Kat would be very interested in our readers’ views.

The decision can be accessed by clicking here.
Cat shower curtains (as the one depcited on the left above), can be purchased via http://www.showerail.com/ where the picture has been taken from.

Letter from AmeriKat

noreply@blogger.com (Annsley Merelle Ward) — Sun, 29 Nov 2009 20:14:00 +0000

Giving thanks for one’s blessings can sometimes be a difficult feat - one that the AmeriKat was struggling with, this Thanksgiving. Thanksgiving took place this past Thursday, and on every fourth Thursday of November, to commemorate the Pilgrims of Plymouth Colony celebrating their survival of a brutal winter. The modern celebration is one where Americans watch Macy’s Thanksgiving Parade or football, eat copious amounts of cornbread, turkey, cranberry sauce and pumpkin pie, and give thanks to the good things in their life. Besides the obvious go-to of being thankful for her family, friends and health, the AmeriKat was struggling for something more thoughtful to thank. However, a couple of weekends ago in a crowded bar a friend quizzed her: “What is your ideal area of law to practice in?” Without hesitation or deviation she replied, “What I do now! I would not want to do anything else but intellectual property and media law.” The AmeriKat is thankful for being involved in an area of law that constantly provides her with the intellectual challenge and whimsy that only intellectual property law can. Because really, reading a case about beer is far more exciting than reading a case about share acquisitions, isn’t it?!

With US courts and lawyers on recess during the Thanksgiving holiday, not too many noteworthy events have occurred in US IP litigation this week, but the AmeriKat has compiled the best bits from the past week.

Warner Music and Sony drop XM Radio suit

The exception to the generally slow IP week in the US, however, was the decision of District Judge Lewis Kaplan in Famous Music LLC v XM Satellite Radio Inc in the Southern District of New York. Last Tuesday, District Judge Kaplan allowed Warner Music Group and Sony Corporation (only two of the 26 claimants) to drop their copyright infringement lawsuit against XM Satellite radio. Neither party cited any reasons. The suit had been brought by the claimants against XM due to XM’s portable Pioneer Inno satellite receiver which permitted users to record and permanently store songs in a library held on the device. XM previously settled related suits with Universal Music Group and Warner Music Group. According to Bloomberg, neither lawyer for either of the parties returned a call for comment.

European “Wise Men” to take on Google Books

According to French Culture Minister Frederic Mitterand, EU ministers in Brussels last Friday agreed to create a committee of “wise men” to establish a plan to challenge Google Books. In an interview with Journal du Dimanche, Mitterand stated that the digitization of books should not be left to private companies and it was for the newly formed committee to “bring together national views and draw up a joint position.” According to Reuters, Mitterand also stated that:

"For my part, there isn't any anti-Americanism. Nevertheless, I believe America isn't a monolith, and different opinions must be expressed. That's why I don't want the State to surrender before the markets…It's not up to this or that private group to decide policy on an issue as important as the digitization of our global heritage. I'm not going to leave this decision up to simple laisser-faire."

Maybe it is the translation, but the AmeriKat is quick to point out that there is in fact a distinction between Google Inc. and the US, which is a country. She is concerned that if such imprecise language continues there will be a PR frenzy of Europe v America in the Google Book saga – a battle that the US will be destined to lose if equated solely with Google’s stated position.

Muscle Ad in Mag invalidates patent

Two weeks ago, the US Court of Appeals for the Federal Circuit upheld an Eastern District of Texas decision in Iovate Health Science Inc v Bio-Engineered Supplements & Nutrition Inc that a muscle magazine advertisement about a body-building supplement published before the critical date rendered seven of the claims obvious and therefore the patent was invalid. Circuit Judge Alan Lourie held that the advertisements in Flex magazine in June 1995 and 1996 anticipated the 1998 formal patent application in that the person skilled in the art would be able practice the invention by reference to the exact amounts of known ingredients as listed in the advertisements. The defendant’s attorney, Phillip Segrest Jr. of Husch Blackwell Sanders, stated that he was not aware of other Federal Circuit rulings involving advertisements. For more information please see this article in the National Law Journal.

Nokia v Apple – With FRANDS like these who needs enemies?

Further to this recent AmeriKat letter regarding Nokia’s patent infringement suit against Apple, American Litigation Daily reports that it will be law firms Alston & Bird versus Wilmer Cutler Pickering Hale and Door for claimants and defendants respectively in the potentially mammoth trial.

Bellagio in trade mark bust-up

A city known for its whimsy is Las Vegas, Nevada. Known as the Entertainment Capital of the World, Las Vegas is home to casinos, resorts and the most famous of Las Vegas hotels, the Bellagio. The Bellagio is owned by MGM Mirage, the second largest gaming corporation in the world. Last Monday, Bellagio filed a lawsuit against Bellagio Limousines of Toronto for trade mark infringement and dilution, unfair competition and cybersquatting. Bellagio alleges that the defendants have take unfair advantage of their marks which “have become distinctive and famous” worldwide for hotel and casino resort services including limousine services. The defendant’s registered their domain name in July 2008 which offered limousine services in Canada and the US and included images of the famous hotel and its equally famous water fountains. The claim seeks an injunction restricting further use of Bellagio’s trade marks and the transfer of the disputed domain name. For more information please see this article in the Las Vegas Sun.

USPTO and India Unite

Following the signing of a Memorandum of Understanding for the cooperation on intellectual property rights protection and enforcement between the USPTO and India’s Department of Industrial Policy and Promotion (DIPP), the USPTO announced last Monday that the Government of India has granted USPTO’s patent examiners access to TKDL - a digital database containing a library of information of traditional Indian knowledge. The TKDL is to aid the US and India in preventing the misappropriation of traditional knowledge by way of issuance of patents. Sharon Barner, the Deputy Under Secretary of Commerce for Intellectual Property and the Deputy Director of the USPTO stated:

“The USPTO has long been concerned about attempts to patent traditional knowledge, not only because it my result in an incorrectly granted patent, but because it removes knowledge from the public domain.”

The USPTO examiners already use several databases and tools in their examination to prevent patenting of existing traditional knowledge. TKDL was developed by India’s Council of Scientific and Industrial Research (CSIR) and the Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homeopathy (AYUSH). The database includes over 200,000 traditional medicine formulations to a tune of around 30 million pages.

Manchester misleads on patents

noreply@blogger.com (Jeremy) — Sat, 28 Nov 2009 20:46:00 +0000

The IPKat's inbox has been swamped with emails from readers complaining about the Manchester Manifesto. To get some idea of what they've been complaining about, you might want to start with this article, "How science is shackled by intellectual property: Ownership rights pose a real danger to scientific progress for the public good", published in The Guardian on Thursday and written by John Sulston, Sarah Chan and Professor John Harris.

Right: The IPKat is glad that IP folk's view of Manchester (right) isn't as grim as the Manifesto's view of IP

It reads in relevant part as follows:

"The idea of ownership is ubiquitous. ... However, there is a profound problem when it comes to so-called intellectual property (IP) – which requires a strong lead from government, and for which independent advice has never been more urgently required. ...

The myth is that IP rights are as important as our rights in castles, cars and corn oil. IP is supposedly intended to encourage inventors and the investment needed to bring their products to the clinic and marketplace. In reality, patents often suppress invention rather than promote it: drugs are "evergreened" when patents are on the verge of running out – companies buy up the patents of potential rivals in order to prevent them being turned into products. Moreover, the prices charged, especially for pharmaceuticals, are often grossly in excess of those required to cover costs and make reasonable profits.

IP rights are beginning to permeate every area of scientific endeavour. Even in universities, science and innovation, which have already been paid for out of the public purse, are privatised and resold to the public via patents acquired by commercial interests. The drive to commercialise science has overtaken not only applied research but also "blue-skies" research, such that even the pure quest for knowledge is subverted by the need for profit.

For example, it is estimated that some 20% of individual human genes have been patented already or have been filed for patenting. As a result, research on certain genes is largely restricted to the companies that hold the patents, and tests involving them are marketed at prohibitive prices. We believe that this poses a very real danger to the development of science for the public good.

The fruits of science and innovation have nourished our society and economy for years, but nations unable to navigate our regulatory system are often excluded, as are vulnerable individuals. We need to consider how to balance the needs of science as an industry with the plight of those who desperately need the products of science.

Clearly it is vitally important that we continue to protect science and enable it to flourish. Science and the many benefits that science has produced have played a crucial part in our history and produced vast improvements to human welfare. It would be remiss if we failed to recognise the importance of science as an industry and investment in research to national and regional economic development; but against these economic concerns (individual, corporate and national) an overriding consideration must be the interests of the public and of humanity present and future. Science as an industry may be booming, but the benefits of science need to be more efficiently and more cheaply placed in the service of the public.

This is of particular concern in the developing world, where drugs that are routinely available in high-income countries are unaffordable or inaccessible, and treatments for diseases of the poor are simply not being developed due to lack of a viable market. Existing inequities in knowledge capital make developing nations hostage to more technologically advanced countries for their basic health and development needs, and restrict the participation in research that would allow them to redress this imbalance.

For science to continue to flourish, it is necessary that the knowledge it generates be made freely and widely available. IP rights have the tendency to stifle access to knowledge and the free exchange of ideas that is essential to science. So, far from stimulating innovation and the dissemination of the benefits of science, IP all too often hampers scientific progress and restricts access to its products.

The Manchester Manifesto, produced by an interdisciplinary and international group of experts and published today, explores these problems and points the way to future solutions that will more effectively protect science, innovation and the public good. It calls on all interested parties to find better ways of delivering the fruits of science where they are most needed".

The Manchester Manifesto can be accessed here.

The following day, acting with a remarkable degree of alacrity, the Chartered Institute of Patent Attorneys (CIPA) responded as follows:

" ... CIPA has welcomed ‘Who owns science?’, the Manifesto published by Manchester University on Thursday 26 November, but has criticised the authors’ views on patents as ‘ill-informed and misleading’.

CIPA’s vice-president Alasdair Poore praised Manchester University for its attempt to stimulate debate about how science is used for the benefit of humanity. ... “Nobody would challenge their laudable aim of making ‘a difference in the real world as to how science is used, and hence to build a better future for Humanity’. However, some of the authors’ comments on intellectual property ownership – patents in particular – are ill-informed and misleading.

“Contrary to what is stated in the report, ... IP rights do not ‘have the tendency to stifle access to knowledge and the free exchange of ideas that is essential to science’. Publication and knowledge-sharing is at the heart of the IP system. Not only is there a vast amount of scientific and technical information available from patent databases around the world, but the majority of it is not available from any other source.”

The Manchester report criticises the patent system on a number of counts, all of which CIPA repudiates:

• Patents can't be used to prevent a product coming onto the market - if demand for a product is not met on ‘reasonable terms’ then, subject to certain safeguards, anyone can apply to the IPO for a compulsory licence under the patent. The competition authorities can also take action if patents are abused.

• Patents do not prevent universities from carrying out research - acts done for ‘experimental purposes’ don't infringe.

• Patents enable research bodies like Manchester University to earn a fair return from technical applications of their work, so that money can be ploughed back into further research. Manchester has its own technical transfer operation which depends on patents for its success.

• The alternative to patenting university research is that big business would get a free ride - they could use the work of universities to make profits for themselves.

• Publication of patent applications is automatic. The applicant has no choice in the matter if he wants to get a patent. Claims that the IP system inhibits knowledge-sharing are just wrong.

CIPA also accuses one of the report’s signatories, Joseph Stiglitz, of continuing to mislead the public in his claims that human genes and other life forms can be patented. “Back in 2006,” says Alasdair Poore, “CIPA wrote a letter to the New Scientist, correcting Stiglitz’s claims that plants or foodstuffs, such as turmeric and Basmati rice, were being patented. This new report is making similarly misleading claims about human genes, stating ‘some 20 per cent of individual human genes have been patented already or have been filed for patenting.’ That is not true. We said it in 2006 and it’s still true in 2009: no patent system in the world allows that. Patents are granted only to inventions that are not previously known: no innovation, no patent.”

According to CIPA, the Manchester Manifesto also repeats misleading views about access to pharmaceuticals in the developing world, alleging that the global intellectual property regime denies poor people access to drugs. “Without an effective patent system, who would have made the necessary investment to discover and manufacture those drugs?” asks Alasdair Poore. “It’s politics and economics that block access to drugs for the world’s poor, not the IP system.”".

The IPKat feels that the patent professions are perfectly capable of defending themselves, but he wishes that they only had to to so when the attack was properly based.

"Stealing a march": now we know the Bud Questions

noreply@blogger.com (Jeremy) — Fri, 27 Nov 2009 12:35:00 +0000

On 20 October the Court of Appeal, England and Wales, decided that in order to resolve one of the more curious disputes between the American and Czech versions of Budweiser for hegemony over all things Bud (see IPKat note here on that decision) it was necessary to refer to the Court of Justice of the European Communities a number of questions relating to the meaning of the concept of acquiescence within the context of Article 9(1)(a) of the trade mark directive.

Right: Budweis, the home of the Czech Republic's greatest export -- beer litigation

At the time, the questions favoured by the Court were these:

"1. What is meant by “acquiesced” in Article 9(1) and in particular:

(a) can the proprietor of a trade mark be held to have acquiesced in a long and well-established honest use of an identical mark by another when he has long known of that use but has been unable to prevent it?

(b) is it necessary that the proprietor of a trade mark should have his trade mark registered before he can begin to “acquiesce” in the use by another of (i) an identical or (ii) a confusingly similar mark?

2. When does the period of “five successive years” commence and in particular, can it commence (and if so can it expire) before the proprietor of the earlier trade mark obtains actual registration of his mark; and if so what conditions are necessary to set time running?

3. Does Art 4(1)(a) apply so as to enable the proprietor of an earlier mark to prevail even where there has been a long period of honest concurrent use of two identical trade marks for identical goods so that the guarantee of origin of the earlier mark does not mean the mark signifies the goods of the proprietor of the earlier and none other but instead signifies his goods or the goods of the other user?".

In the event, having heard submissions and given further thought to the matter, the Court of Appeal has drafted the following questions for that preliminary ruling:

"1. What is meant by “acquiesced” in Article 9(1) [that's the same as before] ... and in particular:

(a) is "acquiesced" a community law concept or is it open to the national court to apply national rules as to acquiescence (including delay or long-established honest concurrent use) [this is new -- and it's a real killer since it exposes the partial and inadequate nature of existing harmonisation provisions as well as the risk of leaving a legal vacuum which might just be filling by a ruling of IP amateurs]

(b) if "acquiesced" is a community law concept can the proprietor of a trade mark be held to have acquiesced in a long and well- established honest use of an identical mark by another when he has long known of that use but has been unable to prevent it? [If this question has to be answered, the IPKat predicts a Delphic response along the lines of "it's up to the referring court to apply its own law to the facts".]

(c) in any case, is it necessary that the proprietor of a trade mark should have his trade mark registered before he can begin to “acquiesce” in the use by another of (i) an identical or (ii) a confusingly similar mark?

2. When does the period of “five successive years” commence and in particular, can it commence (and if so can it expire) before the proprietor of the earlier trade mark obtains actual registration of his mark; and if so what conditions are necessary to set time running?

3. Does Art 4(1)(a) of Council Directive 89/104/EEC apply so as to enable the proprietor of an earlier mark to prevail even where there has been a long period of honest concurrent use of two identical trade marks for identical goods so that the guarantee of origin of the earlier mark does not mean the mark signifies the goods of the proprietor of the earlier and none other but instead signifies his goods or the goods of the other user?".

Friday fantasies

noreply@blogger.com (Jeremy) — Fri, 27 Nov 2009 11:58:00 +0000

The IPKat can hardly believe how quickly Friday has come around again. Well, before you disappear for a weekend of unrelieved leisure, don't forget to check out all the events listed in the IPKat's side bar.

First, the IPKat would like to say a huge thank-you to all his readers who responded to the request for information concerning the Mysterious Canon case, referred from Bulgaria to the European Court of Justice for a preliminary ruling but deemed "manifestly inadmissible" by a very rude court.

Right: overwhelmed by the response, the IPKat peeps out from under his paperwork to see if it's safe to come out yet ...

Initially he replied to every email received, but the volume of helpful responses eventually got the better of him so please, if you wrote in but didn't get a personal response, please accept this as the Kat's thanks. A special mention should also go to Ventsi Stoilov who is, so far as the Kat can tell, the only Bulgarian to respond.

IP transaction guru and blogger Neil Wilkof is teaming up with Robert Anderson to hold a seminar, "Protection of trade and other secrets: a property right, equitable right or contractual obligation? Does it matter?" The date: Monday 14 December; the venue: Lovells LLP's London office. CPD points and mince pies available. For full details click here. To attend, email Sarah Turner here.

Around the weblogs. The IP Finance weblog team has just been strengthened by the arrival of tax expert and author Anne Fairpo. A pupil barrister at Atlas Chambers, having previously been a solicitor for more years than she cares to recall, an is a corporate tax advocate and adviser, specialising in technology-based business and international tax planning and transactions.

TMView. A test version of OHIM's TMview, providing free access to more than 5 million trade marks, is attracting favourable comment from people who have been playing with it over the past week or so. This new service is designed to search, free of charge, the databases of existing trade marks held by OHIM, WIPO, and the UK, Czech, Italian, Benelux, Portuguese and Danish IP Offices -- simultaneously. Trade mark data from eight other European IP Offices should be available between the end of 2009 and early 2010, promises OHIM, with the prospect of more later. You can play with it too, here.

Thanks are due to ...

* Edwina Baddeley, for this link to the sad (unless you're Apple) demise of iPodRip as a descriptor/brand name for what has since become iRip;

* Robin Fry (Beachcroft), for his firm's press release on the UK's Digital Economy Bill which contains the delightful line: "There will be consternation in Soho and confusion in Shoreditch" -- a vivid bit of prose to liven up the drab world of IP press releases;

* Annsley the AmeriKat for this eloquent use of YouTube as a medium for the written word, by an author who has some reservations regarding Lord Mandelson's current proposals.

Same shape, different colour, different trade mark: Dutch court blesses interoperable toy bricks

noreply@blogger.com (Jeremy) — Fri, 27 Nov 2009 05:51:00 +0000

From the IPKat's much valued friend and scholar Dirk Visser (Klos Morel Vos & Schaap; Professor of Intellectual Property Law at Leiden University) comes news of last week's decision of the Hoge Raad -- the Dutch Supreme Court -- in Case LJN BJ6999, Lego Nederland B.V. c.s v Mega Brands Inc c.s. In this decision the court upheld the decision by the Court of Appeal of ’s-Hertogenbosch that the 'fit-alike' building blocks manufactured by Mega Brands are not slavish imitation of Lego bricks.

According to the courts, there is a need for standardisation (compatiblility and interchangeability) which in this instance justified the imitation. There is however a caveat: the lawful imitator is still under an obligation to avoid confusion as much as possible. The use of other colours and the application of a trade mark other than LEGO are however enough to avoid confusion in this case.

The IPKat says thanks to Dirk and wonders how long some countries will be allowed to keep their 'slavish imitation' remedies in the wake of increasing pressure to ensure that the same activities -- in the absence of specific and identifiable IP rights -- are either permitted or prohibited across all 27 European Union Member States. Merpel says, building with these little bricks is great fun, but have you ever tried pulling them apart again when all you've got are paws?

You can read the entire judgment in the original Dutch here, or lovingly translated into English here.

Incredible Lego creations here
Coping with Lego addiction here
Swallowed Lego pieces here, here and here

IP and the knowledge economy again

noreply@blogger.com (Jeremy) — Fri, 27 Nov 2009 00:16:00 +0000

Having attended yesterday's little meeting on the new UK initiative to find out about how IP works before trying to legislate policy for it (see earlier post here), the IPKat can now tell his readers a little bit about what transpired.

In short, SABIP's chairman Joly Dixon, summarised the plot. We Brits are now going to deepen our knowledge of how IP works within the economy and make up for the fact that we have little hard evidence as to precisely how IP affects its owners, users and the various markets in which it is engaged or exploited. Since this is a very big task [says the IPKat, it's not much easier than creating a sort of industrial and economic Domesday Book for our current time], the responsible approach is for SABIP and the IPO to cooperate with other bodies in the funding, setting up and carrying out a research agenda that will establish at least a firm framework within which policy may be framed. NESTA and the ESRC were mentioned in this context, as well as the OECD. Joly emphasized that it was important to be multidisciplinary [Great, says Merpel, so long as we can keep the economists in a minority ...] and forward-looking [i.e. cut all the historical stuff and see where we are now. A good idea]. He called for a two-way dialogue [er, is there any other sort?] between stake-holders and policy-makers, though the IPKat wasn't sure whether this dialogue was to come (i) before the research, (ii) simultaneously with it, (iii) following its conclusion or (iv) any combination of the above.

Roger Burt (IP Federation) then gave an industry view. His vocabulary was to the Kat's liking: "fun", "safeguard" and "academic freedom" ... Supporting and complementing Joly's address Roger called for contributors to the dialogue not to use emotive language: "describe what you see; you are expert witnesses, not barristers". He also offered the appealing prospect of "informed scenario building", which the Kat takes to mean projecting real facts into plausible hypothetical situations in order to see what happens [Isn't this what game theory does? If so, the Kat will be well pleased, since game theory takes both self-interest and altruism into account in a manner in which economic predictions based on historical market analysis generally don't] .

Last to speak was the man we were all waiting for -- quite literally, since he was half an hour late [the Kat discovered that the official Civil Service terminology for describing half an hour is "5 minutes"] -- was the Minister for Higher Education, Innovation and Tottenham Hotspurs, David Lammy. The Minister did quite a plausible imitation of a busy politician with a hectic schedule who was making his first tentative acquaintance with the text of a speech that had been carefully prepared for him by his staff, but he handled the ordeal well. It is difficult not to warm to the Minister. For one thing, his heart is in the right place: he places the emphasis on giving the various stakeholders what they need and/or want, and he strikes a genuinely positive note as a person who cares about the IP sector and wants to see it flourish in the right mix of market conditions and legal controls. The Minister pointed out how important IP is to the UK economy, and reminded us how good we are at generating and exploiting it. Four of last year's most successful albums -- including the top one -- were British, he told us. Then, obviously scenting danger, he swiftly left the room together with his aides before the IPKat could ask him the killer question: "Can you name that album ...?"

So was this little gathering a success? The IPKat thinks so. Sitting the invitees around tables rather than in formal rows helped generate much constructive discussion before the event and a good deal of card-swapping. The content of the presentations was interesting, relevant, well-delivered and left the audience with a sense of something constructive and valuable stirring. These are of course early days, but the Kat says, "so far, so good".

Virgin Media boxes safe (for now)

noreply@blogger.com (David) — Thu, 26 Nov 2009 18:04:00 +0000

It seems a very long time since the IPKat noted here of the impending battle between the (then Murdoch-owned) Gemstar and Virgin Media. The battle itself took place earlier this year over an astonishing 13 days at the High Court. This has now culminated in a very long judgment from Mr Justice Mann in the Patents Court that was delivered earlier today and has just been made available here.

As the judgment is so long, the IPKat will leave providing a detailed summary until later, but for now notes that all three of Gemstar's patents (see the IPKat's previous post for details) relating to electronic programme guides were found by Mann J to be invalid for lack of novelty or inventive step, and therefore not infringed. Two of them were also found, for good measure, to be unpatentable for relating to computer programs or presentations of information as such (or, if you prefer, lacking a "technical contribution"). For those of a suitable frame of mind, there is yet more extensive Aerotel-type analysis of what constitutes patentable subject matter at paragraph 33 onwards. Others, however, may prefer to wait until the Enlarged Board make their decision, which might just arrive in time for this case to be decided all over again at the Court of Appeal.

IP and the knowledge economy: an agenda

noreply@blogger.com (Jeremy) — Thu, 26 Nov 2009 13:24:00 +0000

In 36 minutes the IPKat will be attending a select gathering to mark the launch, by David Lammy (the UK's Minister of State for Higher Education and Intellectual Property), of a new programme which seeks to define how intellectual property underpins the UK’s Knowledge Economy.

Right: "Now that we've solved the IP and knowledge economy issue", said Teddy, "what about another cup of tea?"

According to the press release,

"... the major international programme and research agenda will investigate issues seen as vital to our economic well being. This report sees the Strategic Advisory Board for Intellectual Property Policy (SABIP) and the Intellectual Property Office (IPO) building on a programme of work defined in June by a Forum of international experts from around the world.

To drive this work forward - as outlined in The Economic Value of Intellectual Property: Research Agenda and Plan of Action - they are establishing a number of national and international partnerships and work to clarify the role of IP in innovation and economic growth has already begun.

David Lammy, said: “Maximising the value of intellectual property is vital to the creative and innovative growth of the UK economy. Globalisation and the digital revolution are making us re-examine the current IP system and opinions are divided on how fair and useful it remains. This new research agenda looks to fill the gaps in our knowledge and provide a better understanding of the impact of IP on innovation and growth of the UK.”

To begin to turn the research agenda into tangible and deliverable research, SABIP and the IPO can also announce:
• That they will partner with the UK Innovation Research Centre (UK~IRC) to deliver focused policy events and fellowships to begin seeding research projects.

• Work with National Endowment for Science, Technology and the Arts (NESTA) and other partners to build on their Innovation Growth Accounting framework to quantify intellectual property rights within the wider economy.
• Conduct value chain analysis to assess how copyright value-chains or networks are affected by digital media and the implications of this for copyright law.
Right: the copyright-value chain is a bit like a daisy chain, but it's made out of copyright-values rather than the traditional British daisy.

Joly Dixon, Chairman of SABIP, said: “SABIP was set up just over a year ago to provide the independent research needed to inform IP-related policy making. And this ambitious but achievable new research agenda will provide the conceptual framework, reliable data, and analysis that has not to-date existed in this field of work. I hope it will encourage others, not only in the UK but around the world, to collaborate with us in this work.

Economic growth is dependent on technological change and wider creativity, both of which are key drivers of innovation. This research agenda aims to generate a better insight into the relationship between intellectual property rights (IPRs) and innovation and how these influence economic growth – information which will provide the robust evidence-base needed to underpin policy-making".

Says the IPKat, there does seem to be a lot of partnering going on. If things carry on at this rate, we might even start to learn something. Merpel says, it's good to see the firm commitment to a "robust evidence-base". Isn't it just such a commitment that has given us the artist's resale right, the three-strikes proposals, and some clear direction on what to do about orphan works ...?

Corporación Habanos S.A. sees its UDRP claim for cohiba.com go up in smoke

noreply@blogger.com (Mark Schweizer) — Thu, 26 Nov 2009 10:03:00 +0000

Corporación Habanos S.A. failed to obtain the domain name cohiba.com in a recent URDP proceeding against Tobias Pischetsrieder. It is undisputed that the complainant owns more than 800 registrations worldwide for trade marks containing the term COHIBA, which was created in 1966 and first registered in 1969. In Germany (domicile of the respondent) the COHIBA mark was registered in 1985.

The respondent had registered the domain name cohiba.com in 1996 and not used it for any commercial purposes, neither offered to sell it nor placed any advertising on it. He argued that in 1996, when the domain was registered, it was not clear under German law whether the registration and use of a domain name constituted trade mark infringement. Whether COHIBA was a well-known mark in Germany at that time was unclear (he did not dispute that he was aware of the COHIBA brand at the time of registration). There co-existed trade marks with the term COHIBA for different goods. His registration and use of cohiba.com was not in bad faith.

The three-member panel agreed that under the circumstances, the complainant had failed to establish the bad faith of the respondent, and denied the transfer of the domain name. A key element considered was also the 13 year delay before the complainant enforced his rights; while the panel noted that the UDRP did not foresee forfeiture ("Verwirkung"), a long delay between the registration of the domain name at issue and the enforcement of the alleged rights counted against a finding of bad faith (citing The Knot, Inc. v. Ali Aziz, WIPO case No. D2007-1006).

D2009-1041 (in German - the complainant had filed its complaint first in Spanish but was educated that the language of the proceeding is the language of the domain name registration agreement, which in this case was German)

Mystery Canon case: can anyone help?

noreply@blogger.com (Jeremy) — Wed, 25 Nov 2009 17:15:00 +0000

The IPKat wonders if any readers can help him. Information has just been posted on the Curia website concerning Case C-181/09 Canon Kabushiki Kaisha v IPN Bulgaria OOD, a reference for a preliminary ruling from the Sofiyski gradski sad (Bulgaria) lodged on 19 May 2009. This is an intellectual property case, so the IPKat is already deeply fascinated by it. However, today's notice reads:

"By decision of 17 September 2009, the Court of Justice (Fifth Chamber) declared the reference for a preliminary ruling to be manifestly inadmissible".

The Court's Order is only in French and Bulgarian. can anyone tell the IPKat and his readers what this is all about? Merpel also has a question: is there any significance in the reference being "manifestly inadmissible" rather than just the usual sort of inadmissible?

Some recent books

noreply@blogger.com (Jeremy) — Wed, 25 Nov 2009 16:35:00 +0000

A Defense Of Intellectual Property Rights, by Richard A. Spinello and Maria Bottis, is that rare creature these days -- a book on intellectual property rights that is not predicated by the considerations of economics and the demands of the marketplace. A little unfashionably, the authors argue the case that intellectual property rights are justified on non-economic grounds. Then they get a tiny little bit more fashionable, since they believe that the rationale for this moral justification is primarily inspired by the philosophy of John Locke (in this they are not alone: Lior Zemer has waved the Locke supporters' club banner when justifying his views on authorship in copyright, and Uma Suthersanen too has favoured his approach). Adds the publisher's web-blurb:

"In the process of defending Locke, the authors confront the deconstructionist critique of intellectual property rights and remove the major barriers interfering with a proper understanding of authorial entitlement. The book also familiarizes the reader with the rich historical and legal tradition [the words 'rich historical and legal tradition' depress this Kat: they remind him of all the things the British government has changed for the sake of change in recent years. It's almost as though being a rich tradition is a sort of death warrant] behind intellectual property protection".

Richard Spinello is Associate Research Professor in the Carroll School of Management, Boston College, US; Maria Bottis lectures in the Department of Archive and Library Sciences of the Ionian University, Greece. This combination conjures up images of dynamic management skills blended with patient research lovingly harvested from the dusty vaults of archived materials. At any rate, it works well. Defending IP rights in this cynical age is about as much fun as proving the existence of fairies, but at least these authors have done a credible job of it. Like ants, humans are tireless workers in their various creative activities; unlike ants, they are individuals and the protection of their differences -- and the cultivation of the personal output which distinguishes them from one another -- can itself provide a reason for protection.

Bibliographic details. Date of publication 2009. ix + 218 pp. Hardback. ISBN 978 1 84720 395 3. £59.95 (price with publisher's online discount £53.96). Book's web page here. Rupture factor: small.

Global Pharmaceutical Policy: Ensuring Medicines for Tomorrow’s World, by Frederick M. Abbott (Edward Ball Eminent Scholar Professor of International Law, Florida State University College of Law) and Graham Dukes (External Professor of Drug Policy Studies, Institute of General Practice and Community Health, University of Oslo, Norway).

According to the publisher's web-blurb:

"Pharmaceuticals play a central role in health care throughout the world. The pharmaceutical industry is beset with difficulties as increasing research and development expenditure yields fewer new treatments. Public and private budgets strain under the weight of high prices and limited access. The world’s poor see little effort to address diseases prevalent in less affluent societies, while the world’s wealthy are overusing prescription drugs, risking their health and wasting resources [Alas, it doesn't need a book to support these contentions, which are the 'givens' faced by pharma IP owners, generic manufacturers, policy-makers and patients alike].

As the global economic crisis exacerbates pressure on health care budgets, a new presidential administration in Washington, DC has committed to broad health care reform. These circumstances form the backdrop for this extraordinarily timely examination of the global system for the development, production, distribution and use of medicines. The authors are acknowledged experts in the fields of pharmaceutical law and policy, with many years experience advising governments, multilateral organizations and policy-makers on issues involving innovation, access and use of medicines. Supported by a team of independent scientists, doctors and lawyers, they take an insightful look at the issues surrounding global regulation of the pharmaceutical sector, and offer pragmatic suggestions for reform [To talk of 'global systems' and 'global regulation' is to take a lofty view of the various means, at once complementary and contradictory, that link the development, testing, distribution, sale and use of pharma products in the linked worlds of the rich, the developing and the economically stunted nations].

This book will be of interest to government policy-makers, members of industry, healthcare professionals, teachers, students and lawyers in the fields of public health, intellectual property and international trade".

At the heart of this book lies chapter 4, "The global regulatory environment: quality, safety and efficacy", which summarises and emphasises one of the work's most important points. The traditional notions of consumer protection, based on the presumption in favour of caveat emptor, are entirely inadequate in the field of medicine. This is the message that will remain with the reader when the data, the tables and the analysis have all faded into the background of the reader's consciousness.

Bibliographic details. Publication date 2009. x and 308 pp. Hardback. ISBN 978 1 84844 090 6. Price £ 75 (with publisher's online discount £ 67.50). Book's web page. here. Rupture factor: light.

Intellectual Property Policy Reform: Fostering Innovation and Development, edited by Christopher Arup (Professor of Business Law, Monash University, Australia) and William van Caenegem (Professor of Law, Faculty of Law, Bond University, Australia), contains contributions from not all but at least some of the 'usual suspects': the names of such productive souls as Peter Drahos, William Kingston and Matthew Rimmer are to be found among them.

So what does the publisher say about this text? According to the book's website:

"This state-of-the-art study argues that reforms to intellectual property (IP) should be based on the ways IP is interacting with new technologies, business models, work patterns and social mores. It identifies emerging IP reform proposals and experiments, indicating first how more rigor and independence can be built into the grant of IP rights so that genuine innovations are recognized [but this still leaves the question as to who does the recognising ...].

The original contributions illustrate how IP rights can be utilised, through open source licensing systems and private transfers, to disseminate knowledge. Reforms are recommended. The discussion takes in patents, copyright, trade secrets and relational obligations, considering the design of legislative directives, default principles, administrative practices, contractual terms and license specifications.

Providing contemporary empirical studies and covering public administration, collective and open approaches, and regulation of private transactions, this comprehensive book will prove a stimulating read for academics and students of law, business and management and development studies. Government policy makers and regulators as well as IP managers and advocates will also find much to provoke thought".

Of particular interest to this reader was Part II, dealing with Open Intellectual Property Systems. Matthew Rimmer's contribution on Wikipedia, collective authorship and the politics of knowledge is welcome, since serious contributions to the literature of the wiki from IP authors are in short supply.

Bibliographic details. Published 2009. viii + 324 pp. Hardback 978 1 84844 163 7. £ 79.95 (with publisher's online discount £ 71.96). Book's web page here. Rupture factor: small.

Wednesday whimsies

noreply@blogger.com (Jeremy) — Wed, 25 Nov 2009 00:37:00 +0000

Happy midweek, everyone! As the count-down to the weekend begins, the Kats remain busy enough, gathering up some choice offerings for you and trying their very best to come up with some fresh insights.

European trade mark organisation MARQUES is now tweeting. You can follow MARQUES on Twitter here.

To follow the progress of the Digital Economy Bill in the United Kingdom, all you have to do is click here. To follow the progress of the British Economy, click here.

Around the blogs. The IPKat has been perusing the busy pages of Securing Innovation, a handsomely-produced confection by ip.com. Its byline is 'Managing Intellectual Property, Patents, Trademarks, and Trade Secrets. Does it? You can decide. In case you missed it, The 1709 Blog has published the questions referred to the European Court of Justice by the Hoge Raad (the Dutch Supreme Court) last Friday on the impact of the Information Society Directive on 'fair compensation' and the 'three-step test' under private copying levies: you can read the questions, and the whole case (in English!) here.

"Who owns the invention, the University or the researcher?" is the title of neat piece of analysis of the recent Full Court of the Federal Court of Australia decision in University of Western Australia v Gray [2009] FCAFC 116 (3 September 2009). The author, Neil Brown QC, is an arbitrator and mediator in Melbourne, Australia. You can read the full text here.

The Penny Drops is the theme of this year's Convergence Survey, researched by London-based law firm Olswang LLP -- where IPKat team member Jeremy is IP consultant -- together with YouGov. According to the data, Apple iPhoners are among the heaviest users of digital content and are also more willing than other consumers to pay for a wide range of types of content. They are heavy users of services such as on-demand TV - not only on their phones but also on other devices, such as the main TV at home. They also demonstrated greater willingness to use micropayments and subscriptions to pay for access to a broad range of content. You can get the full report (all 96 pages of it, with loads of convergence data drawn from extensive interviews with large numbers of users) by just clicking here, or you can read a much shorter note on it on the 1709 Blog here.

Do you suffer from Diaresis?

noreply@blogger.com (Jeremy) — Mon, 23 Nov 2009 20:18:00 +0000

Do you suffer from Diaresis? Do you have an Acute Circumflex or a Grave Cedilla? If so, says the IPKat, there's no need to see a doctor. But you should get wise to the fact that Thursday 10 December is the apparently arbitrary date on which you will be able to register .eu top level domain names with twiddly bits on the letters. The culprit, or saviour (depending on your preference) is Eurid, which has done all this for you (click here for further information).

Says the IPKat, how long will it be before we see disputes over the registration of such gems as cøcåcðlã.eu and vęrĩzőn.eu, I wonder. Says Merpel, mïâòû!

Eurid pdf with loads of twiddly letters here