Sad to CJEU Go? What Brexit Could Mean for Intellectual Property (part 1 of 2)

Guest post by William Wortley*

It is over six months since the United Kingdom (UK) decided to leave the European Union (EU). The uncertainty surrounding the timing and form of the exit remains undimmed and much remains unknown about how IP rights will be affected. This week’s statement on Brexit by Theresa May make it an excellent time to revisit what the referendum result could mean for IP rights.

Patent Rights

Immediately after the Brexit vote, questions were raised about the implications for the Unified Patent Court (UPC). To the surprise of some commentators, the UK announced its intention to ratify the UPC agreement on 28 November 2016, stating that the UK would continue to work with the preparatory committee to bring the UPC into force as soon as possible. Continue reading “Sad to CJEU Go? What Brexit Could Mean for Intellectual Property (part 1 of 2)”

The Crispr Cas9 battle reaches oral arguments before the United States Patent Trial and Appeal Board (PTAB) and the stakes are favoring the Broad Institute

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Guest post by Lucia Tamayo Del Portillo*

In early 2012, a group of scientists from the University of California Berkeley (“UC”) led by Dr. Jennifer Doudna, in collaboration with the University of Vienna and fellow researcher Emmanuel Charpentier, filed the first patent application for a revolutionary gene-editing tool called Crispr Cas9.  The Crispr and its associated protein Cas9 is a natural existing response to immunological hazard that can be found in bacteria. By a combination of complex biochemical interactions, bacteria is able to identify foreign DNA, cleave to it, and then induce a break on the DNA strand, causing its instant deactivation. UC’s first patent application was broad and mainly tested in rather simple living organisms such as bacteria. Few months after this application, the Broad Institute (“Broad”) along with the MIT and the Harvard College, filed another patent application over the Crispr Cas9. Dr. Feng Zhang commanded the main research team behind this invention. This subsequent application was limited to the use of the Crispr Cas9 method in eukaryotic organisms for example, plants and animals. Continue reading “The Crispr Cas9 battle reaches oral arguments before the United States Patent Trial and Appeal Board (PTAB) and the stakes are favoring the Broad Institute”

China’s Patent Boom

This post was originally published on The IPKat on 10 January 2017.

World Intellectual Property Organization recently published its annual World Intellectual Property Indicators report. This report states that, amid rising worldwide demand for intellectual property rights, a new record was set. Namely, with around 1.1 million new patent applications in 2015, the State Intellectual Property Office of China (SIPO) became the first patent office to receive more than a million applications in a single year. This was almost as many applications as the next three offices in the ranking combined (the patent offices of the U.S., Japan and South Korea). Some people are astonished and also confused about China’s patent boom in recent years: What drives such a strong growth in patent applications? How good is the quality of the massive applications? What impacts does the boom have on patent protection in China? This article briefly discusses some aspects of these questions. Continue reading “China’s Patent Boom”

The death of book scanning services in Japan

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The IP High Court in Japan has considered book scanning services to amount to copyright infringement. The judgment became final in March this year because the Supreme Court dismissed the appeal by the service provider. On 30th November, the police in Kyoto arrested a book scanning service provider, who scanned popular Japanese manga comics in response to its clients’ request. This is the first criminal case and could largely affect similar businesses in Japan. In this posting, I would like to briefly explain the reasoning of the IP High Court.

Continue reading “The death of book scanning services in Japan”

IP, Investment Arbitration and Policy Justifications

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Guest post by Ivan Stepanov*

International investment agreements (IIAs) are international treaties which protect investors coming from one state and their investment in another. They represent the source of what is called international investment law. IIAs have endemic protection standards with the protection against expropriation and the “fair and equitable treatment” (FET) standard being most prominent.

Even though IIAs are instruments of public international law, the dispute settlement mechanism embedded in the treaties offers the investor, a private party, to challenge the state, if it holds that through state action, it or its investment have suffered economic losses. The actions of the state are then assessed in light of the aforementioned protection standards. This mechanism is called the investor-state dispute settlement or more commonly addressed as investment arbitration. Essentially through investment arbitration an investor has the chance to sue the state in an international forum inside a specific legal environment. Continue reading “IP, Investment Arbitration and Policy Justifications”

When Supermodels Meet Competition Law

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Who said competition law is always about the same old markets?

Last November the Italian Competition Authority dealt with something other than pharmaceutical or telecommunication, as it found that 8 major model agencies set up a price-cartel. The investigation had been opened upon submission of a leniency application by the renowned agency IMG and led to a cumulative fine of 4.5 million euro. The other agencies found liable were Brave, D’management, Elite Model, Management, Enjoy, Major Model Management, Next Italy, Why Not and Women Models. Continue reading “When Supermodels Meet Competition Law”

Shhh….Keeping the Secret Secret and Trade Secret Litigation

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“Whatever you do, don’t tell anyone”

(Queens of the Stone Age – The Lost Art of Keeping a Secret)

I doubt Josh Homme was thinking about trade secrets when he wrote the above lyrics, but there’s some valuable “legal advice” hidden in those lines. Namely, as often pointed out, once a trade secret is out, it may be lost forever.

Indeed, the secret maybe lost but not necessarily given away for free. Trade secret legislation is designed particularly for these unfortunate situations. Once the secret is out, you may not be able to get it back in the bottle again. But you may be able to stop further spreading of the secret and at least get some damages from the perpetrator. This will usually mean you will have to go to court for enforcement. And this is where it may get a bit tricky: Alas, in order for the enforcement to be successful you will probably have to disclose your secret. That doesn’t sound very tempting if your trade secret is valuable, does it? Continue reading “Shhh….Keeping the Secret Secret and Trade Secret Litigation”

Is the product-by-process claim “dead” in Japan?

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After the Supreme Court in Japan handed down a very important judgment in 2015 on the scope of the Product-by-Process (“PBP”) claim, and its doubtful validity concerning the clarity requirement (Pravastatin sodium case, a drug lowering the cholesterol in blood), the authorities commented that the PBP claim is “dead” because almost all PBP claims would be fairly likely to be invalidated according to the Supreme Court’s strict judgment on its patentability. However, very recently, the IP High Court handed down a relevant judgment on this issue, wherein it basically followed the Supreme Court judgment but limited the application of the Supreme Court’s judgment to the “true” PBP claim.

Continue reading “Is the product-by-process claim “dead” in Japan?”

Competition law in the pharmaceutical sector: Aspen fined for excessive pricing in Italy

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The Italian Competition Authority (“ICA”) has recently found that Aspen Pharmacare had increased the prices for some of its oncohematological drugs up to 1500% and imposed to the South African multinational a 5 million Euro fine for violation of art. 102, letter a) of the TFEU. Aspen has already communicated that it will appeal the decision.

Continue reading “Competition law in the pharmaceutical sector: Aspen fined for excessive pricing in Italy”

Chinese Patent Office proposed revisions to its Examination Guidelines

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On 27 October 2016, the State Intellectual Property Office of China (SIPO) released proposed revisions to its Guidelines for Patent Examination for public consultation. According to SIPO’s explanatory note, the proposed revisions are aimed to strengthen the IP protection for innovation in emerging fields such as Internet, e-commerce, big data etc., to improve the IP protection system for business models, to improve the post-grant patent documents amendment system and timely disclosure of procedural information on patent examination.

Mainly, the following revisions are proposed: Continue reading “Chinese Patent Office proposed revisions to its Examination Guidelines”