- Government unveils blueprint for future of British science (16/03/04) by launching a consultation on the framework for a ten year strategy for investment in science and engineering innovation. The Government will be developing a dialogue with key stakeholders including the scientific community, businesses, charities and regional and devolved bodies. The Government has published a consultation document, Science and Innovation: working towards a ten-year investment framework as part of Budget 2004.
See consultation document at: www.hm-treasury.gov.uk
- US Patent and Trademark Office rejects the validity of the Eolas patent (08/03/04) at the heart of the patent infringement judgement against Microsoft relating to its internet Explorer browser.
The USPTO have issued a preliminary finding that the verdict against Microsoft may have been wrongly granted. The review procedure that from time to time has led the USPTO to overturn or revise patents is known as director-ordered re-examinations, such reviews have been conducted 159 times in the USPTO's history, resulting in at least partial changes in patents about 87 percent of the time.
In November, the patent office decided to review the patent after Tim Berners- Lee, the director of the World Wide Web Consortium, wrote to US Under Secretary of Commerce for Intellectual Property James Rogan. Lee urged the Patent Office to invalidate the 1998 patent because of the existence of previous examples of the technology's use.
For further information see www.computerweekly.com
- Ultra Marketing (UK) Ltd & Thomas Alexander Scott v Universal Components Ltd (12/03/04).
The fact that owner did not have copyright in a later, more detailed design did not prevent him from pursuing a claim for breach of copyright of the original drawing. However, the idea of the design for aluminium frames was commonplace and had not been copied.
The second claimant claimed against defendant for infringement of his copyright in a drawing made in 1976 for an aluminium frame for holding unilluminated signs. The design incorporated "pips" into extruded aluminium frames. In 1987 the second claimant made a more detailed drawing and subsequently put into production "Ultraframe". It had been determined as a preliminary issue that the second claimant had no copyright in the 1987 drawing or in Ultraframe. In 1992 the defendant began making aluminium frames and the second claimant contended that the defendant had breached copyright by indirectly copying his 1976 drawing by copying the design of the Ultraframe. The defendant argued that they had arrived at the idea independently and without copying.
It was held that although the second claimant did not have copyright in the 1987 drawing or Ultraframe this did not prevent him from taking proceedings for indirect copying of the 1976 drawing. The general idea of the defendants design was clearly the same as the 1976 drawing but the technical details were different. The idea of incorporating "pips" was commonplace in the industry even if not used in connection with sign frames. The idea of pips was so simple that it would be need to be exactly copied before the copying could amount to a substantial part of the work. Although it was probable that the defendant's decision to incorporate pips into their existing products was inspired by the success of Ultraframe, the evidence established that the defendants design had been independently created.
- Boehringer Ingelheim KG & Ors v Glaxo Group Limited & Ors (05/03/04).
Questions referred to ECJ to consider whether test of necessity as applied to the repackaging of parallel imports extended to details of presentation or only the act of repackaging.
The Court held that the judge was entitled to hold onto the evidence that reboxing was as a matter of fact necessary in order to overcome strong resistance in the market to relabelled boxes. The Claimants cross-appeal on that issue was dismissed. The Court also held, in the context of cross-appeals on the restickering issue that clear guidance was also required as to the precise form of allowable restickering and also ordered a reference to the ECJ as to these.
The Court of appeal also held that the period of notice that must be given to the rights owner of the intention to sell repackaged parallel imported goods should be 15 working days.
See: www.courtservice.gov.uk/judgmentsfiles/j2357/ingelheim-v-Dowelhurst.htm
- The European Parliament votes in favour of the Intellectual Property Rights Enforcement Directive (09/03/04).
Commission proposed the Directive on 30 January and it will now go forward to the Council of Ministers.
The European Parliament adopted a first reading report on the Directive. The aim of the Directive is to approximate legislative systems in order to ensure a high, equivalent and homogenous level of protection of intellectual property rights in the Internal Market. This will help combat counterfeiting and piracy in the single market, a problem which affects a range of products: software, toys, CDs and even pharmaceuticals. Piracy can thus be detrimental not only to innovation and economic interests but also to public health.
For details see:
www2.europarl.eu.int/omk/sipade2?PUBREF=-//EP//TEXT+PRESS+DN-20040309-1+0+DOC+XML+V0//EN&LEVEL=2&NAV=S#SECTION4
- Royal Mail Group plc v I-CD Publishing (UK) Ltd (13/02/04).
The defendant had a licence to use the database in question and had a defence to claimant's allegations of database rights infringement.
The claimant R had a statutory duty under the Postal Services Act 2000 to maintain the "post address file" (PAF) which included 27 million postal address records and to licence it on reasonable terms. The defendant provided "UK info" products the aim of which was to produce a complete directory of everyone over voting age in the UK. The claimant alleged that the defendant had infringed its database rights and copyright. The defendant claimed that by a provisio in clause 3.1 of the clamaint's end user licence terms which provided that nothing in this clause should prevent the end user from using the PAF to modify existing mailing list databases, the PAF validation of the electoral roll database included in UK info was licensed. The court held that the PAF validation in question was licensed. Clause 3.1 sought to strike a balance in limiting the use to be made of the claimant's intellectual property licence and allowing the information to be used to encourage the updating of the mailing lists.
- HEFCE reports UK Higher Education Institutes' IP revenues up 83%.
The latest survey (January 2004) between UK Higher Education Institutes and businesses reports total IP revenue (excluding income from software licensing) is up 83% from 2000/2001 figures.
For further information see: www.hefce.ac.uk/Pubs/hefce/2004/04_07
- Commission clarifies EU rules for parallel imports of proprietary medicines (19/01/04)aimed at helping businesses and national administrations take full advantage of the Internal Market in medicinal products. The Commission has published a Communication COM(2003) 839 final clarifying how the principle of free movement of goods within the EU applies in practice to parallel imports of medicinal products.
See press release at:
www.europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=gt&doc=IP/04/65|0|RAPID&lg=EN&display=
See full text of the communication at:
www.europa.eu.int/comm/internal_market/en/goods/art2830.htm
- Robertson PLC v Kangol Ltd (CA 22/01/04).
The defendant was entitled to terminate a trade mark licence agreement with immediate effect for the licensee's failure to pay the agreed royalties by the date in the licence.
Appeal by the defendant (licensor) relating to a dispute concerning royalties payable under a trade mark licence. The licence provided for the payment of a running royalty based on a percentage of sales and the quarterly payment of a minimum royalty. The licensor was entitled to terminate the licence "forthwith unless the licensee paid such sums as were required to meet the minimum royalty level at the time such payments were due" (clause 9.2). The dispute between the parties arose when the claimant (licensee) failure to pay a minimum royalty on one of the due dates (30 April 2003). The licensor purported to terminate the licence with immediate effect. On 14 May 2003 the claimant paid the outstanding minimum royalty. The Licensee sought a declaration and determination as to whether the purported termination by the defendant was valid. The judge held that the termination was valid but ineffective because payment had been mad, albeit late. On this appeal the defendant argued that the judge's conclusion was erroneous because it substituted a fixed date for payment with a vague reasonable time. At appeal the court stated that it was unnecessary to go as far as discussing how long the "provisional termination" would be effective, i.e. how long was the licensee permitted to pay the late payment to render the termination ineffective. The clause 9.2 of the contract was for two different forms of royalty. The first part of the clause gave the licensor a right to terminate forthwith if the minimum royalty was not paid on time. The second part of the clause ensured that the licence was not terminable on the failure of the licensee to make a fixed minimum quarterly payment if it reached or already had reached the minimum royalty payment level by payment of running royalties. Therefore, the judge had erred in his construction of clause 9.2. The appeal was allowed and the termination of the licence by the licensor was valid.
- UK based Linux users could face legal action by SCO if they do not have a licence. SCO recently filed lawsuits against US giants Daimler Chrysler and Autozone. These are the first lawsuits filed against enterprise users of the open source operating system.
SCO has threatened to sue Linux users in the past and it is involved in Linux-related lawsuits with IBM, Red Hat and Novell. But until now it had not launched legal action against a Linux customer.
Meanwhile, a small start up German software company, Univention has prevented SCO from making copyright infringement claims in Germany - Europe's largest open-source market.
Univention was one of three organisations last year to win a temporary restraining court order against the German arm of SCO, forcing it to stop spreading allegations about Linux copyright violations.
Last month, Univention struck an out-of-court settlement with the SCO unit.
For further information see www.computerweekly.com
- Blue IP INC v KCS Herr Voss UK Ltd: KCS Herr-Voss (UK Ltd) & Ors v Blue Chip IP INC (29/01/04).
In light of agreements reached as part of the sale of a company's assets, the claimant company (an intellectual holding company) was not entitled to restrain the continued registration of the defendant company with a derivative name that contained registered trade marks owned by the claimant. Nor was the claimant entitled to restrain the defendant from using that name in its trading activities.
- Societa Esplosivi Industrali SPA v Ordance technologies Ltd & Ors (21/01/04).
An agreement for the design and manufacture of shaped warheads was not void for restraint of trade and the defendant had breached the agreement by failing to supply documentation to the claimant over which it had intellectual property rights and by disclosing confidential information to a third party
See judgement at: www.courtservice.gov.uk/judgmentsfiles/j2228/sei.htm