European Intellectual Property Review

Published by Sweet and Maxwell
this article starts by discussing the nature of European formal telecommunications standards. A new classification of the different types of standards is proposed, and the instutional framework for formal standards in Europe is described. The next section deals with the relevant property rights. We distinguish the strategeis for three different phases in the standardisation process. The next section explains how the instutional field reacted to possible problems of IPRs within telecommunication standard. The subjects of the two final sections, firm strategy and the standardisation bodies' policy, are illustrated in the GSM case.
This paper examines whether the current EU competition law regarding refusal to license intellectual property rights can effectively deal with access to industry common standards that may embrace proprietary intellectual property rights. It finds even though intellectual property rights as such do not confer dominant position to their owners in the market, industry standards that embrace technologies covered by IPRs may add substantial value to these IPRs. The combination of industry standards and IPRs may create a dominant position in the market. The paper suggests that the approach based on the complementary interaction between intellectual property law and competition law be introduced to address the refusal to license IPRs problems in terms of industry standards, especially the over-exploiting intellectual property should be taken into account when to determine the existence of abuse of dominant position.
In February 2008, EU Internal Market Commissioner Charlie McCreevy declared his intention to extend the European copyright term for sound recordings by 45 years, from 50 to 95 years. The announcement overturned the recommendations of two recent independent reviews on the issue. One was conducted by the Centre for Intellectual Property and Information Law at Cambridge University for the UK Gowers Review of Intellectual Property (2006), the other was commissioned by the Commission itself as part of a larger study by the Amsterdam Institute for Information Law (2006). The 2004 Commission Staff Working Paper on the European copyright framework had summarised the policy consensus quite accurately: ‘‘It is feared that an extended term of protection would only tend to diminish the choice of music on the market by enforcing the flow of revenues from few best-selling recordings, while at the same time not providing any real new incentives for creation of new recordings or motivating new investment. It has also been pointed out that practically all developed countries, with the exception of the USA, apply the term of protection of 50 years. From the point of view of the Internal Market, the term of protection for phonogram producers does not cause particular concern since the term has been harmonised in the Community and also been incorporated by the 10 new Member States. (. . .) Moreover, it seems that public opinion and political realities in the EU are such as not to support an extension in the term of protection. Some would even argue that the term should be reduced. At this stage, therefore, time does not appear to be ripe for a change, and developments in the market should be further monitored and studied.’’ It is indeed hard to see how extending exclusive rights over the catalogue of recorded music for another 45 years would benefit society. Following years of fierce and sustained lobbying by the trade bodies of the record industry, however, the copyright unit of the Internal Market Directorate has drafted the text of an extension directive which the European Commission has adopted on July 16, against the reported objections of commissioners Viviane Reding (information society) and Vice-President Antonio Tajani (transport). In order to assist rational policy-making, leading research institutes called a meeting at Bournemouth University in May 2008. Collectively, we have reviewed the empirical evidence on the issue of term extension.
Discusses whether databases created as a by product of the maker's main activity should be excluded from the protection of database right. Examines the requirement that database makers must show substantial investment in the database to qualify for database right under European Parliament and Council Directive 96/9 (the Database Directive) Art.7. Reviews Dutch case law and compares decisions from other Member States. Considers the justification for allowing protection in return for substantial investment where the database maker has invested not only in creating the data but also in presenting it in a user friendly format, and how the principle might apply to telephone directories, sports information providers and scientific research.
Explores the sui generis protection of intellectual property, particularly patents, in biotechnology and traditional agricultural knowledge under Indian law. Focuses on the impact of amendments to the Patents Act 1970 and of the Plant Variety Protection and Farmers' Rights Act 2001 and Biological Diversity Act 2002.
Comparison of how Software Directive 91/250 and 1976 US Copyright Act provide protection for computer programs, considering differences in legal text and policy issues in relation to definition of 'computer program' and scope of protection.
In Optus v NRL, Australia’s Federal Court recently held that consumers had broad rights to “time shift” television programs, including via the use of remote recording and storage devices. The applicants were the AFL and the NRL, sporting organisations which had big plans for the monetisation of internet streaming rights, and Telstra, which had already paid some $153m for rights to several seasons of AFL games. This paper provides a detailed overview of the decision and the relevant law, and considers its likely significance for stakeholders including broadcasters, sports operators and other content owners, streaming providers and consumers.
Copyright legislation, at least in its implementation, can be seen as a triumph of international harmonisation. However, in the area of joint works this is not the case. In the comparison of a North American and European country we observe very different outcomes, despite the similar statutory definitions in copyright legislation. However, the explanation for the divergence of application is not to be found in copyright law, but rather the parts of property law that deal with tenancy in common. Starting from this observation the article uses comparative analysis of rules and remedies available in both systems and concludes with recommendations towards a more fair and efficient framework.
*E.I.P.R. 251 Although s.51 of the Copyright, Design and Patents Act 1988 (CDPA) was meant to clarify the respective scope of copyright and unregistered design right (UDR), as Professor Cornish said early on, "a degree of uncertainty infects the penumbra of section 51, as can be seen if each of its requirements are further examined". 1 Does this statement still hold true after
On 9th March 2012 the Indian Controller of Patents granted the first compulsory licence in India. Indian generics producer Natco Pharma Ltd. has been granted the right to produce and sell in India Bayer’s patented medicine “Sorafenib”, which is useful for treating advanced stage liver and kidney cancer. After a brief introduction on compulsory licenses under the TRIPS Agreement and the Paris Convention, the author verifies whether the decision of the Controller of Patents satisfies the conditions set forth by the these international treaties in relation to compulsory licenses. He concludes inter alia that the ruling might be in violation of the non discrimination principle enshrined in Article 27(1) TRIPS. General comments are also made about the role of compulsory licensing in guaranteeing the availability of patented products to a wide range of consumers and in general the transfer and dissemination of the associated technology.
The article highlights some issues raised by the recent decision of the Court of Justice of European Union in Brüstle v Greenpeace, a widely reported case on the exclusion from patentability of inventions related to human embryonic stem cells (HESCs). The ruling first offers the opportunity to delve into an old debate surrounding patent law, i.e. whether moral aspects should be effectively dealt with by patent officers and judges: in this regard, the author argues that patent offices and courts should act as moral arbiters (as impliedly confirmed in Brüstle) and their task could be facilitated by coupling them with technical experts. The author also stresses that a common concept of morality in the field of biotechnology and in particular HESCs does not exist, which makes it harder for the European Patent Office to decide on ethical issues: possible solutions are highlighted. The Brüstle ruling – the author further notes - may trigger a WTO challenge against the EU and some of its Member states for failing to comply with Article 27(2) of the TRIPS Agreement and might also be invoked in fields other than HESCs, e.g. for opposing the issuance, and challenging the validity, of patents obtained through immoral or unlawful activities such as the misappropriation of genetic resources.
The generic use of geographical product names has persisted as the single most controversial issue in Geographical Indications (GI) law for over a century. The controversy is compounded by political compromises at international trade negotiations, with judicial resolutions in multilateral disputes being the exception. One such exceptional case was the recent Feta dispute, where the European Court of Justice (ECJ) considered the test for generic status under the pan-European registered GI regime. The ECJ ultimately upheld the European Commission's finding that Feta was not a commonly used expression for a type of white cheese in brine, instead designating cheese with a specific Greek origin. In the process, the litigation generated an extensive unpacking of the test for genericide. A puzzle posed here was that Feta had been produced in Germany, Denmark and France for several decades. This article revisits the reasons for why this initially significant evidentiary finding was subsequently overshadowed. While generic status is based on a factual enquiry the threshold to be established, the categories of admissible evidence and the hierarchies of their importance all reflect the competing interests at stake. This in turn highlights unresolved tensions in the Unfair Competition heritage of this shadowy branch of Intellectual Property law.
The full text is available to University of Leicester members through Westlaw.
The HMSO and Ordnance Survey v Green Amps ([2007] EWHC 2755, 5th November 2007, High court of England and Wales) case discusses the fair dealing exception for research for the first time and implies that copyright could be trumped by the Re-Use Public Sector Information Regulations. It also raises the question whether protection of the environment can be an arguable defence to copyright infringement.
This article compares the development of the French, German, and English Legal Systems. It looks at how the different systems influenced the development of Copyright and Authors’ Rights in the three nations. It compares and contrasts these three different approaches to protecting the Moral Rights of the Author.
It has not been easy to understand the sui generis right since its inception. The British Horseracing Board and Fixtures Marketing decisions in November 2004 restricted the scope of protection for non-original databases by introducing a distinction between creating and processing data. The recent cases of Directmedia Publishing and Apis-Hristovch EOOD confirmed the broad concept of infringing acts on one hand and their correlation with substantial investment on the other. This article assembles a set of six strategies for a claim of sui generis protection. It explains each strategy with reference to the relevant provisions of Directive 96 9 EC and the principles developed in the case law. It also considers the remaining areas of uncertainty where appropriate.
This article considers the concept of embellishment, championed by the ECJ in Adidas v Fitnessworld, in the wider context of the debate over 'trade mark use'. It analyses judicial and academic considerations on embellishment prior and subsequent to the Fitnessworld decision both in Europe and the US. The author argues that embellishment is a concept specific to dilution-style infringement which is inextricably tied to the need for there to be a 'link' between the two parties' signs in dilution cases, and that wrongly labeling embellishment as a trade mark use argument can have harmful results.
Fettering, or inhibition, involves blocking the senior user’s ability to expand into new product classes. It is commonly believed that the Registry treats fettering as a relative ground for refusal under s.5(3) of the Trade Marks Act 1994. This comment examines the decisions on fettering, concluding that although many senior user have relied on the action, it has never been accepted by the Registry. However, there is some surprising evidence of its adoption by the Court of Appeal. The propriety of dealing with fettering as a form of dilution is also questioned since it does not fall within the categories of dilution recognised by the CJEU.
This paper considers the legal challenges to the legal validity of the patents held by Myriad Genetics in respect of genetic testing for breast cancer and ovarian cancer. It argues that broad-based patents on gene sequences and medical diagnostics will have a harmful effect upon access to patient care, genetic research, and the administration of public health care.
This note comments on the Hong Kong Court of Final Appeal decision in HKSAR v Chan Nai Ming on whether the use of a peer-to-peer file sharing network to distribute unlicensed copies of a copyright film infringed the Hong Kong Copyright Ordinance s.118(1)(f). It details the facts of the case and the court's analysis of whether the physical distribution of a tangible object was required for the offence, and whether the defendant's conduct constituted distribution. It notes the issue left unresolved by the judgment.
This paper provides a background to open access, examines what is it and how it came about. It provides an analysis of the fundamentals of open access against the provisions of the Budapest Open Access Initiative (BOAI) and examines the barriers to open access, (price, technology and legal). It also looks at some of the fields related to open access such as, open educational resources and public sector information. The final section of the paper examines strategies to achieving open access and concludes with licensing, focusing on creative commons.
Few patent claim formats present more interpretative difficulties than that of the so-called Swissform. Taking shape as purpose-bound process claims – i.e. claims directed towards a manufacturing process applied for a particular end – the Swiss form was originally conceived as an attempt to navigate treacherous waters – waters bordered by two seemingly immutable prohibitions on patenting: the excluded; and the old. A jury-rigged solution to a thorny problem, the Swiss form claim promised to extend patent law’s incentives to the discovery of new and useful functions of existing medicaments: repurposing the old to create the new. For inventions known in other fields, inventions with no prior medicinal purpose, a solution had already been given in statute; Art 54(5) of the European Patent Convention (EPC) 1973 allowed discovery of the first medical use of a known compound to be claimed as a purpose-bound product. Once, however, a first medical use for a compound was known: that was it. Secondary indications, arguably no less beneficial than the first, were left out in the cold. The Swiss-form was devised to bridge this gap: its purpose undoubtedly noble; its proposed effects glittering. However, this virtuous façade conceals a darker underbelly: an underbelly in which the text of the Convention was mutilated and warped, leaving knotty, perhaps intractable, problems in its wake. This then is the story of the Swiss-form: of its birth, its execution, and the more recent attempts to disentangle the legacy of its creation. The article is split into three parts, each dealing with specific elements of the issue under consideration. This, the first, deals with the adoption of the Swiss-claim within the jurisprudence of the European Patent Office (EPO) and the problems associated with the manner in which the Enlarged Board of Appeal (EBA) of the EPO went about instigating protection for claims to new uses of existing medicaments. It considers the fundamental legitimacy of the format and the hiatus in its interpretation that has only recently been broken. In Part II we visit the specific issues raised by the regulation of the market for prescription medication in the UK. We also consider some patent law fundamentals that have a bearing on the issues that are picked up in Part III, when we finally consider the litigation in Warner Lambert v Actavis in depth.
This article provides an overview of the Einarsson v Canada dispute and critically examines potential issues arising out of this ongoing dispute. It first provides the background of the case, followed by discussing data and copyright as investments. The second part highlights the role of international intellectual property treaties in intellectual property-investor-state dispute settlement ( ISDS) disputes and analyses how this dispute can be used to argue in the context of data and trade secrets claims in ISDS.
One of the most significant challenges in providing effective protection of Indigenous cultural expressions is accommodating them within legal existing regimes for the protection of “cultural property”, such as copyright law. This article considers the reasons for this challenge and suggests an alternative way to protect these rights.
Significant technological and social changes, as well as global health and climate crises, are evident in the world we live in, which pose important questions for a myriad of legal fields, including for patent law and practice. At this time of change, this special issue reflects on some key aspects of how the current European patent system is affected by contemporary technological, legal and social developments. Papers within the issue are framed around three distinct yet intersecting themes: emerging technologies and the public interest; Covid-19 and access to health-technologies; and the EU unitary patent system. We call for greater critical reflection and dialogue within—and outside—the patent community, around the role and operation of patent law, to ensure it is fit for purpose and best aligned with the public interests at stake in our current society.
Top-cited authors
Peter Drahos
  • European University Institute
Isabelle Liotard
  • Université Paris 13 Nord
Rudi Bekkers
  • Eindhoven University of Technology
Estelle Derclaye
  • University of Nottingham
João Pedro Quintais
  • University of Amsterdam