For the half-year to 31 December 2015, the IPKat's regular team is supplemented by contributions from guest bloggers Jani Ihalainen, Nikos Prentoulis and Mark Schweizer.

Birgit Clark is on Sabbatical till the end of the year

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Tuesday, 7 July 2015

Multiple personality disorder amongst the public for Community designs?

This is the question posed by Katfriend Gerben Hartman (Brinkhof N.V.)  in relation to the recent judgment of the General Court (GC) in Group Nivelles/OHIMT-15/13Here's what Gerben writes:

"In its judgment of 13 May 2015 (Group Nivelles/ OHIMT-15/13 – English translation not yet available) the General Court (GC) of the EU decided on which prior designs may be taken into account for the assessment of novelty and individual character of Community designs. The dispute concerned the validity of a registered Community design for an elongated shower drain. This RCD is applied to products in the consumer market for home and sanitary appliances. The submitted prior art drain was applied to products for industrial use. The question was whether such prior art may be included in the assessment of validity. The outcome is remarkable.

According to the GC, all identical designs, even applied to or incorporated in other products, that are made available to the public are considered novelty-destroying. However, for individual character the nature of the product to which the design is applied or in which it is incorporated and the sector to which it belongs are considered relevant. Although other products are not excluded from the individual character assessment per se, the assumption that the informed user knows of the various designs which exist in the sector concerned does not cover other products.
Such knowledge is considered a prerequisite for lack of individual character.

Gerben Hartman
The GC’s main argument for inclusion of designs applied to or incorporated in other products in the novelty assessment is that a Community design gives rights enforceable against use on any product or use of any design which does not produce a different overall impression (with reference to art. 10 and 19 CDR). In addition, disclosure pursuant to art. 7(1) CDR subject to knowledge of the circles specialised in the sector concerned within the Community, was held not to be limited to the product wherein the Community design is incorporated or whereto it is applied. This exception concerns the sector to which the potential prior art belongs and is aimed to exclude only prior art that is obscure even to those operating in that sector within the Community (with reference to CoA E&W (Jacob-LJ) 23 April 2008, Green Lane/PMS, par. 73-79).

For individual character the GC adopted its different view based on art. 6 CDR in light of recital 14 and its concept of the informed user. The GC repeated that the status of ‘user’ implies use of the product in which the design is incorporated in accordance with the purpose for which that product is intended (with reference to GC EU 22 June 2010, Shenzen Taiden/OHIM, T-153/08, par. 46 and GC EU 9 September 2011, Kwang Yang/OHIM, T-10/08, par. 24).

The Court therefore held that the assessment of individual character should be made in view of the user of the product to which the design is applied or in which it is incorporated.

This would mean that any prior art product may be considered for lack of novelty, but not necessarily for lack of individual character. A community design would lack no individual character over prior art with the same overall impression concerning another type of product, unless additional knowledge of this other product is evidenced (i.e. positive correction of the assumption that the informed user has knowledge of designs relating to the same type of products only).

If one accepts the GC’s argument that novelty should be assessed in relation to prior art extending to all kinds of products as a Community design gives rights enforceable against the use on any product or use of any similar design, then this should equally apply for individual character. In respect of novelty, the GC expressly referred not only to art. 19 but also to art. 10(1) CDR, which reads:
The scope of the protection conferred by a Community design shall include any design which does not produce on the informed user a different overall impression.

This provision is construed by the GC to provide universal protection (i.e. regardless of the specific product), even though this comparison is expressly made in view of the informed user. This also couples scope of protection and use. It appears inconsistent to take a universal approach for scope of protection and a product-specific approach for individual character. The GC referred to recital 14 for support.

Relying on the preamble is skating on thin ice. The preamble is not binding and where the provisions remain silent (i.e. on ‘the nature of the product’) their wording is not easily interpreted otherwise (cf. ECJ 19 June 2014, Karen Millen/Dunnes, C-345/13, par. 31 [here]).

Skating on thin ice?
Kats can do it
In addition, the ‘public’ pursuant to art. 7(1) CDR is the same for the purposes of articles 5 and 6.   

For the purpose of applying Articles 5 and 6, a design shall be deemed to have been made available to the public if it has been published following registration or otherwise, or exhibited, used in trade or otherwise disclosed, before the date referred to in Articles 5(1)(a) and 6(1)(a) or in Articles 5(1)(b) and 6(1)(b), as the case may be, except where these events could not reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the Community.

Both articles 5 and 6 CDR require the comparison to be made in respect of designs made available to ‘the public’ in accordance with article 7 CDR. If this provision is held not to be limited by the product wherein the Community design is incorporated or whereto it is applied, this interpretation should hold true both for novelty and individual character. Otherwise there is multiple personality disorder amongst the public for Community designs.

Does the GC’s differentiation between novelty and individual character have any practical implications?

The actual impact is dependent on the strictness of the novelty and individual character tests.

For the novelty assessment designs shall be deemed to be identical if their features differ only in immaterial details (art. 5(2) CDR). According to the GC this means that such details are not immediately perceptible and would not therefore produce differences, even slight, between those designs (GC EU 6 June 2013, Kastenholz/OHIM, T-68/11, par. 37).

Prior art
For the individual character assessment an informed user will in principle be guided by the basic structures alone and not by differences in the details, which do not produce different overall impressions on him. The greater the designer’s freedom in developing a design however, the less likely it is that minor differences may produce different overall impressions (GC EU 9 September 2011, Kwang Yang/OHIM, T-10/08, par. 33 and 44). In practice the novelty test is quite strict, whereas the individual character assessment is more lax.

Too rigid application of these tests may have the undesired result that prior designs concerning other products in more or less similar sectors may not invalidate a Community design with an immediately perceptible different detail in one of its features, even when the overall impression is the same. The Community design would, when adopting a universal scope of protection, be enforceable against any design which does not produce a different overall impression. This may not only make unlawful what had previously been lawful, but may also introduce abuse of registration formalities (see CoA E&W (Jacob-LJ) 23 April 2008, Green Lane/PMS, par. 75). This outcome is undesirable. In any case, the relevant products (single-type or any-type) should be the same for the assessment of infringement and validity (i.e. novelty and individual character).”

Thanks so much for this detailed and thorough analysis, Gerben!

Katonomics: Anything Under the Tuscan Sun

Your Katonomist is delighted to return her paws to IPKat.  Economics, evidence, biker gangs and terrible puns await.

 CC Flickr user Giampaolo Macorig
Judge as you may, but while this Kat was sunning herself in Italy, she was reading Howkins 2000 book, "The Creative Economy."  The mention of the American Supreme Court's 1980 comments on patentability presented far too good of an opportunity for a punny title and to reflect on changes to economic understanding of patents over the last years.  Howkins mentions Lessig's predictions that the American penchant for business model patents would sound the death knell for the cyberworld,

"This [business model patents] is a disaster, a major change that occurred without anybody thinking through the consequences. In my view, it is the single greatest threat to innovation in cyberspace, and I'm extremely sceptical that anyone is going to get it in time."

But has the threat realised?  Has dodgy expanding patent policy has created negative externalities sufficient to thwart the development of the digital world?  Certainly the last 15 years has seen expensive court cases, major tech companies engaged in costly, seemingly endless, spats, but could it just be a zero sum game?  A game in which the major winners are lawyers, lobbyists, IP professionals and the odd economist?

 Photo CC Flicker user Derek Key
I'm sure BlackBerry would say IP has created costs, not innovation, although perhaps not.  Court cases etc add to the cost of doing business.  The need to thwart lawsuits through defensive patenting, licensing and other strategies increases transaction costs.  The knock-on effect may be a decrease in the contestability of markets (the degree of free entry and exit of firms in a market). This loss of competition comes as the economies of scale (bigger enjoys relatively lower costs) required to participate in these markets create barriers to entry (obstacles to joining markets) for smaller players.  These smaller players, the start-up, unicorns of digital innovation, may be key sources of economic growth.

We can't definitively answer these questions.  As previous posts have indicated, measuring and identifying innovation is more of an art than a science.  Ascribing all successful innovation to the IP system would be as folly as assuming IP thwarts all innovation.  Because of, or despite, expanding patent policy, digital innovation has flourished in the last 15 years.  On the other hand, some criticised America patents expire soon and we could see a shift growth and innovation. Perhaps a change in policy, or economic understanding of patents, is just one click away...  

P.S. At the risk of disappointing readers hoping for salacious details from inside the UK government, I'm afraid to say that my posts will not be the Secret Diary of Yes, Minister.  It would be far too difficult to cross Billie Piper with Sir Humphrey.

P.P.S. Keen to read some economic analysis of your favourite IP topic?  Please suggest topics. Haven't got a favourite economic topic yet?  You will. 

Life sciences come to life again, this time in Berlin

The best part of a year ago ("A matter of life and death? No, it's more important than that. Life sciences in the limelight", here), this Kat waxed lyrical on the then-forthcoming Life Sciences IP Summit 2014. Well, now he is looking at the programme for the Life Sciences IP Summit 2015 -- coming up in Berlin on Thursday 22 and Friday 23 October. Much has happened since last year's event, including a shift of venue from Amsterdam. Could this have been anything to do with Merpel's saucy comments about how appropriate it was to host such a sexy subject in a city famed for its Red Light District? Probably not.  While this year's conference venue is the highly respectable NH Berlin Friedrichstrasse Hotel, Berlin is historically as apt a venue for a sexy subject as is Amsterdam, as anyone who has ever seen Liza Minelli and friends in Cabaret will soon concede.

But what about the subject itself? The impending European patent package, having now been declared lawful by the Court of Justice of the European Union (CJEU) following two legal challenges by Spain [Cases C-146 and 147/13, noted by the IPKat here], is gradually metamorphosing from blueprint to reality. Arrangements are now being made for the training of judges, the provision of court facilities and the projecting of existing patenting and dispute resolution techniques on to a fresh canvas. This is a scenario in which the accumulated experience, knowledge and wisdom of the life science sector cannot be relied upon in the absence of rigorous double-checking against a new framework for patenting, new litigation rules and -- this is going to hurt the most -- a set of complex transitional provisions.  Unsurprisingly, then, this year's programme features a mock trial before the Unified Patent Court with real live judges [readers may already be familiar with this weblog's serialised and ongoing account of Bristows' test-drive of the 17th Edition of the Draft UPC rules here, here, here and here] as well as sessions on whether to exercise the opt-out option and on the nuts and bolts of patent enforcement. At times of change and uncertainty, it's comforting to be able to share one's anxieties and pick up ideas in the company of one's life science peers and compatriots rather than have to rub shoulders for a couple of days with those who work in other disciplines and do not share one's commercial reflexes.

Headache? No, just
second medical use ...
The sudden return to the headlines of problems relating to second medical use patents, both on last year's AIPPI agenda and in Warner-Lambert's mega-litigation with Actavis over pregabalin [see eg the hugely popular Katposts by Darren, Annsley and even Jeremy here, here, here, here and here] pretty well guaranteed that this issue would feature on this year's programme (incidentally, this is the substantive legal issue that has attracted more comments by IPKat readers than any other topic right across the whole sphere of intellectual property law). On another topic, now that the CJEU has given so many rulings -- and caused so many headaches -- in the field of supplementary protection certificates (SPCs), it's the turn of the national courts to work out what Europe's senior court meant. Accordingly the aftermath of these major rulings is also on the agenda [if you want to check on the past year's SPC developments, a quick click-through on The SPC Blog will convince you that there's plenty to chew on].

A European focus comes naturally to this Kat, but he notes that the programme goes wider than that.  China-watcher and a former occasional contributor to this weblog Tom Carver leads the session on enforcing pharma patents in that vast, imponderable jurisdiction.  The United States is also on the menu and, in this Kat's view, the choicest morsel on the menu is a comparison of the position relating to personal medicine patents as between the US and Europe. This session is led by Emil Pot (General Counsel, Actogenix, Belgium) and Brian Coggio (Of Counsel, Fish & Richardson, United States), a combination that instantly brought to the mind of this blogger the classic Dr Seuss image on the right. Personalised medicine, incidentally, has proved to be a very live topic in the past twelve-month, as readers' responses to Suleman Ali's February 2015 blogpost on that topic demonstrate.

Watching out for icebergs -- or ice cubes?*
The programme finishes with a topic that may very well kick off the 2016 edition of this event: the Nagoya Convention on Bio-Diversity and EU Regulation 511/2014. This session is branded "How to Assess and Mitigate Risks" but perhaps should have been subtitled "How to Make Up for Previous Efforts to Pretend Nagoya Wasn't Happening" since that is what, it seems to this blogger, too many people have been doing up to now.  If you still don't know why you should worry about the Nagoya Protocol, the Kats can offer you some background reading here. What's not clear to this blogger is whether compliance with Nagoya is going to cause real problems in practice or whether it's a bit like a giant iceberg that will have melted into little ice cubes by the time it hits your dinghy.

If you're booking for this event, some discounts are available to suitably designated souls.  If you book online, or email C5's affable Nathan Denham here, quoting the organisers' VIP Katcode P15-999-KAT16, you can expect to enjoy the benefit of a handsome 15% reduction on the registration fee

* Cat illustration from Bailey Boat Cat. Adventures of a feline afloat, here

Monday, 6 July 2015

Never too late: if you missed the IPKat last week ...

Here once again is our ever-dependable friend Alberto Bellan's take on last week's substantive Katposts, specially designed to facilitate a swift catch-up for those good folk whose professional, academic, commercial or romantic commitments kept them from reading them when they first came out.  This week's collection is the 53rd.  Thanks again, Alberto, for all your hard work!
 Case C 147/14 Loutfi Management Propriété intellectuelle SARL v AMJ Meatproducts NV, Halalsupply NV is a Court of Justice of the European Union (CJEU) ruling regarding trade marks containing both Arabic and Latin letters. It emanates from a reference asking whether the meaning of Arab words should be taken into account and give useful guidance for many trade marks that feature non-Latin script  writes Jeremy.  

* Is UberPOP a transport service? A new reference to the CJEU

Many readers will be familiar with Uber, the on-demand ride-sharing platform which has revolutionised the concept of urban transport and which is in deep trouble in a number of EU countries due to its alleged non-compliance with laws and regulations governing on-demand transportation. Thanks to a Barcelona Court reference, the CJEU has been called on to enter the debate -- which goes far beyond taxis and concern the much broader relation between traditional and sharing economy, explains Katfriend Revital Cohen (Baker & McKenzie, Barcelona).

* Jumpin' through hoops? A copyright claim that never got off the ground

Here's a note from Katfriend and occasional contributor Kevin Winters, who takes a look at a recent US copyright dispute concerning the alleged infringement of Michael Jordan’s iconic ‘”Jumpman” logo by Nike.

* Payment for use of protected barley seeds: when prospects for dodging payment recede ...

Jeremy takes a look at Case C‑242/14 Saatgut-Treuhandverwaltungs GmbH v Gerhard und Jürgen Vogel GbR, Jürgen Vogel, Gerhard Vogel, a request for a preliminary ruling to the CJEU made by the Landgericht Mannheim (Germany), on a Community plant variety matter concerning reasonable compensation and farmers’ freedom to propagating purposes under Article 94(1) of Regulation 2100/94.

* Letter from AmeriKat: Spiderman's web ensnares the US Supreme Court in Kimble v Marvel

Annsley gives an account of US Supreme Court’s decision in Kimble v Marvel, relating to a toy-patent allowing children to role-play as a "spider person" by shooting webs "from the palm of [the] hand" by way of pressurized foam string.

* Patent Déjà vu - Hospira v Genentech and another patent dies

Darren sinks his claws in the latest decision in the apparently endless Hospira v Genentech saga. In this episode (Hospira UK Ltd v Genentech Inc [2015] EWHC 1796 (Pat)), Hospira is seeking to invalidate all of Genentech's secondary patents relating to the cancer drug trastuzumab (Herceptin) so that it can market a generic version now that the SPC for the basic patent has expired.

* Are EU policy-makers fighting the right copyright battles?

Debate is currently being undertaken at the level of EU institutions as to whether the current legislative framework in the area of copyright should be updated, with initiatives characterised by a complete lack of support on the side of the public opinion. Is this the right direction to take, wonders Eleonora.

* The IPKat and his friends: the latest round-up of our IP weblog news

Once every three months or thereabouts, the IPKat and Merpel post an update of the goings-on both on this weblog and on other IP-flavoured blogs to which members of the IPKat's blog team contribute. Here’s your chance to know all the relevant IP places of the blogosphere and to get to know the new guest and resident kats.

* No go for GO: Skechers scupper trade mark applications

In the next few weeks, Jeremy will be posting on a number of cases that are still of interest though they are no longer "hot news", these being decisions on which was unable to comment at the time they were published since he was up to his whiskers in conferencing and foreign travel. The first of these is GO Outdoors Ltd v Skechers USA Inc II [2015] EWHC 1405 (Ch), a 19 May decision of Mrs Justice Rose, sitting in the Chancery Division, England and Wales, on an appeal from a decision of the UK Intellectual Property Office. The point, there, was the inherent distinctiveness of “GO walking” and “GO running” for rucksacks and bags (Nice Class 18) and retail services connected with the sale of clothing and accessories (Class 35). 

* Allfiled allegations and interim relief: balancing the interests of litigants -- and customers

Another in Jeremy's series of not-quite-so-recent cases that he is writing up now because they flashed past him when he was too busy to grasp hold of them a couple of months ago is Allfiled UK Ltd v Eltis & 16 Others [2015] EWHC 1300 (Ch), a 19 May 2015 decision of Mr Justice Hildyard, in the Chancery Division, England and Wales, in an action seeking an interim injunction to stop a total of 17 defendants -- former directors and employees and three companies -- from using its confidential information and intellectual property and from carrying on a trade similar to its own.

* Uninsured -- and unregistrable: the OAEE 'victims' mark in Greece

In his debut post, new guest Kat Nikos tells us of an interesting story involving the (perhaps) first trade mark application refusal by the Greek Patent and Trade Mark Office. The application at stake belonged to an association meant to help lawyers and freelances to comply with (or survive) the Freelancers’ Social Security Organization. Unfortunately, it also included the latter organisation’s trade mark.

* Icons, flags and the Hazzards of intellectual property toxicity

Viacom subsidiary TV Land has just decided to pull the plug on a current re-run on US screens following the tragic Charleston church massacre. While the Confederate flag is not a brand in the commercial sense, both flags and brands attract loyalties and generate passions that are often irrational and difficult, if not impossible, to suppress, reflects Jeremy.

* Why Finland is not Silicon Valley: farewell Matti Makkonen, the "father of SMS"

Matti Makkonen, the Finnish father of SMS, passed away this week. He never patented his revolutionary invention, and diverging approaches to IP might be one of the reasons why creating a Silicon Valley in Europe is as easy as finding a Boldrin/Levine book based on a strict, scientific research. The floor goes to Neil.

* Sofa, so good? How to lose both your two trade marks and still come out on top ...

The Sofa Workshop Ltd v Sofaworks Ltd [2015] EWHC 1773 (IPEC), is a recent decision of Judge Richard Hacon in the Intellectual Property Enterprise Court, England and Wales. As Jeremy recounts, it deals with genuine use, acquired distinctiveness, infringement, passing-off, and many, many sofas.

* Ukunono, The Battle of the Ukulele Orchestras Plays its Last Tune

Jani introduces himself with The Ukulele Orchestra of Great Britain v Clausen & Another (t/a the United Kingdom Ukulele Orchestra) [2015] EWHC 1772, another trade mark decision regarding “The Ukulele Orchestra of Great Britain” soundly opposing The United Kingdom Ukulele Orchestra.

* Arnold J rules on the Beatles, a documentary on their first US concert ever ... and US fair use

Can the unauthorised use of copyright-protected works amounting to nearly 42' in a 95' film be considered fair use under §107 of the US Copyright Act? This, together with other issues, is what Arnold J had been asked to determine in Sony/ATV Music Publishing LLC & Another v WPMC Ltd & Another [2015] EWHC 1853 (Ch) (1 July 2015), an intriguing case decided earlier this week, having to do with the Beatles and a documentary concerning their first US concert ever. Eleonora tells all.

* Le rouge et le noir: when colour hits the IP headlines

Jeremy pens this post on red roses and black cabs. Red roses are those which are included both in UK Labour and Scottish Labour Party’s trade marks, with the first not so happy with the second using a red rose, so that a dispute arose. The black cabs are those examined by Richard Spearman QC (sitting as a deputy Judge of the Chancery Division, England and Wales) in The London Taxi Corporation Ltd v Frazer-Nash Research Ltd & Ecotive Ltd [2015] EWHC 1840 (Ch), a curious tale of taxi look-alikes and bizarre surveys.



Never too late 52 [week ending on Sunday 14 June] - EU TM reform | Motivate Publishing FZ LLC and another v Hello Ltd | EPO’s Inventor of the Year: poll results | New network for new IP people | Delfi v Estonia | UPC fees | Smith & Nephew Plc v ConvaTec Technologies Inc Canary Wharf Group Ltd v Comptroller General of Patents, Designs and Trade Marks Actavis v Lilly | Council of Europe v EPO | Freedom of Panorama | TM reputation and brain scan | Case management decisions in the Lyrica case.

Never too late 51 [week ending on Sunday 14 June] - GIs in France | IPBC Global 2015 | EPO recap | EPO and OAPI bff? | 3-D Lego trade mark | Garcia v Google | B+ subgroup | EU trade mark reform and counterfeits in transit | French v Battistelli | US v Canada over piracy | UK Supreme Court in Starbucks |  BASCA v The Secretary of State for Business | Patent litigation, music, politics | Product placement in Japan.

Never too late 50 [week ending on Sunday 7 June] - Swiss claims | Italian-sounding trade marks for cosmetics | “IP litigation and Enforcement” event | Saving WiFi | Spy scandal at the EPO | Rihanna v DC Comics | KitKat trade mark | Taste trade marks in the Netherlands | Connectivity and human rights | Trade secrets, client confidentiality and privilege | 3-d printing and counterfeiting | Ericsson v Apple in the FRAND battlefield.

Never too late 49 [week ending on Sunday 31 May] - Another copyright-exhaustion-and-software reference to the CJEU | ORO trade marks and GC | Patent Reform in EU | Copyright in the Bahamas | More and more references to the CJEU: communication to the public and linking | Trade secrets and the FoMo phenomenon | Independence of EPO’s BoA.

Monday miscellany

Two heads can be more effective than one,
at least if they can think independently ...
"Who are the addressees of the InfoSoc three-step test?" Readers of the 1709 Blog may have noticed fellow Kat Eleonora's excited post this morning which poses this question -- and in which she also announces the forthcoming publication in the Journal of Intellectual Property Law & Practice (JIPLP) of an article with a title suggesting a possible answer: "Are national courts the addressees of the InfoSoc three-step test?", co-authored with leading British intellectual property judge and scholar Mr Justice Arnold.  You can read the abstract on the 1709 Blog.  This Kat, who has to declare an interest as JIPLP's editor, just wants to add one thing: while (i) co-authored articles are always popular since they spread the strain of writing and reduce the incidence of errors, and while (ii) anyone can read a statute, directive, treaty, regulation or legal judgment and draw their own conclusions, an article in which the co-authors do not share the same immediate background or standpoint is always likely to have more to commend it since it is better able to take a more rounded view of its subject-matter. Whether it is a judge writing together with an academic, a private practitioner together with a client, or any other combination of experiences and skill sets, the result is generally far more interesting and enjoyable from the editor's point of view -- and, this editor hopes, from the reader's perspective too. 

Reminding patent in-housers. This Kat's friends at Managing Intellectual Property magazine are running a survey on the current attitude of in-house patent attorneys to the emerging regime for unitary patents and a unified patent court for the European Union. You can find details of this initiative, and the reasons for it, from the PatLit weblog here. If, as a respondent, (i) you don't already have an iPad mini 3 and (ii) you actually want one, you can opt to enter your name in a draw for one. 

News from Eponia. This Kat learns from his ever-vigilant friend Merpel that the Institute of Professional Representatives before the European Patent Office (EPI) is getting aspirant patent attorneys involved in European Patent Office (EPO) governance issues at an early stage.  Apparently, in an email offering an online training course for candidates taking the pre-examination of the European Qualifying Examination in 2016, there were accidentally included three attachments setting out the EPI’s view of the proposed reforms of the Boards of Appeal of the EPO, and the response to the ongoing consultation on the matter [here and here].

UPDATE 7/7/15 In response to popular demand (See comments), the three documents are: 1) 6 February Letter to the Administrative Council concerning the Organisation of the Boards of Appeal; 2) 25 June EPI Position Paper on CA/16/15; and 3)  25 June EPI response to User Consultation on Reform of the Boards of Appeal

Conscientious objectors, take note. "L'Oréal Lawyer Claims Company Fired Him When He Wouldn’t Pursue Problematic Patents" was a headline that this Kat deemed too good to hide away in the "Around the weblogs" feature below. It's a blogpost from Suits by Suits ("A legal blog about disputes between companies and their executives", by US law firm Zuckerman Spaeder LLP), about an action brought by patent attorney Steven Trzaska under New Jersey's Conscientious Employee Protection Act. The allegation is that the company set its New Jersey a quota of 40 patents to file in 2014 but that some of them were of "low or poor quality" in that they were, er, cosmetic ... The Kats hope to hear more about the progress of this case, and wonder whether, on a broad construction of its provisions, the Act would also cover conscientious objections by lawyers to instituting patent infringement proceedings or demanding royalties where they have reason to believe that their employer is indulging in a spot of trolling.

Casting nasturtiums on Nagoya? The Royal Horticultural Society, gaining its first ever mention on this weblog, is running its very own Nagoya Protocol event [if you're not sure what this is about, click here for background and here for Darren's earlier Katpost on a failed legal challenge to it by a consortium of German and Dutch plant growers]

It is key that the response to the Nagoya Protocol is from across the horticulture sector and in collaboration with Defra and NMRO. The RHS, will therefore, over the next few months be engaging with key stakeholders from horticulture, Defra and National Measurement and Regulation Office (NMRO) to raise awareness on the Nagoya Protocol, to formulate a shared response and to work towards informing the process of ‘best practices’. This will include holding a meeting for those with concerns about or an interest in the Protocol and the legislation to share their views with Defra and the NMRO, and this will form the basis of how UK horticulture can respond constructively to the legislation.

This meeting will be held at RHS Garden Wisley on 27 July with representatives of Defra and NMRO being present. Those interested in attending this meeting please contact Laura Robins on with your name and email address.

The 'bad old days' of clean car technology ...
Around the weblogs. "What will happen to the Unified Patent Court (UPC) if the UK leaves the EU?" This question, together with some further questions posed on the same topic, is discussed on the PatLit weblog here. On the 1709 Blog, former guest Kat Marie-Andrée Weiss also poses a question: "Did you RT a © today? Photographer Sues Infringers and Retweeters" -- though her supplementary question about the possibility of small claims copyright courts in the US is the bit this Kat liked the best. Elsewhere a somewhat enigmatic blogpost title comes from SOLO IP's Barbara Cookson: "CIPA as an Entity of Intellectual Property Influence", a post that touches on some sensitive issues for UK patent attorneys. The Washington Post's Innovation blog writes up the virtues of patent portfolios predicated on the notion of open licensing in "Why it’s time to open up our patent system" -- particularly in the automotive industry where "clean car" technology is all the rage (Katpat to Chris Torrero for the link). Finally, the jiplp weblog announces the contents of JIPLP's August 2015 issue, together with the full text of Molly Stech's guest editorial on moral mights and the attribution of artists in the United States. 

The General Court declines to visit Nagoya: challenges inadmissible

This Kat reported that August that German and Dutch associations of plant breeders had challenged EU Regulation 511/2014 (the Regulation implementing the Nagoya Protocol and setting out compliance measures for EU users) before the General Court in order to seek its annulment.

Details at that time were a little patchy, although some helpful comments provided a little more information. Now, our eagle-eyed blogmeister has noticed from an e-Bulletin from Herbert Smith Freehills (to whom a very grateful Katpat) that the General Court has rejected both challenges as inadmissible.

The German action was filed by Ackermann Saatzucht GmbH & Co. KG and 16 other persons; the Dutch action was filed by ABZ Aardbeien Uit Zaad Holding BV and 15 other persons, all active in the plant breeding sector.

The two decisions, T‑559/14 and T‑560/14, are basically the same.  They are quite brief, and you can read them (in English!) here and here.  They are probably of more interest for an understanding of who may admissibly challenge an EU Regulation than for enthusiasts of the Nagoya Protocol, although the evidence is that there are more of the former than the latter among the readership of this blog (somewhat to this Kat's regret).

In both cases Council and Parliament requested that the challenges be ruled inadmissible, and the Court agreed.  The Court noted that the Regulation was a legislative act, and not a regulatory act.  Therefore, there were only two routes by which a person might seek its annulment - either the Regulation was addressed to them (which it was not) or if the "act is of direct and individual concern to them".  The Court considered that

It has consistently been held that persons other than the addressees of decisions can claim to be individually concerned only if that decision affects them by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee.  
The Court then held:
Thus, it is clear that the applicants are affected by the contested regulation only in their objective capacity as users of genetic resources or traditional knowledge associated with genetic resources, as defined in Article 3 of the contested regulation, in the same manner as any other user coming within the scope of the contested regulation. No particular quality or fact characterises them in relation to other persons coming within the regulation’s scope.
Accordingly, the actions were held inadmissible.

It is hard to see that any other outcome to these challenges was possible, but it is a pity that the result means we have no judicial consideration of the legislation, which would have been interesting and maybe even illuminating.

A reminder to readers: the penalties for non-compliance with the Regulation come into force on 12 October 2015, so you have only three months to become familiar with the Nagoya Protocol before it begins to really affect researchers.

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