Recent development in Japanese patent case law; the doctrine of equivalents and the Supreme Court judgment in the Maxacalcitol case

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In my previous post, I wrote about an IP High Court judgment (the Maxacalcitol case) regarding doctrine of equivalents in patent infringements in Japan. The defendants appealed against the IP High Court judgment and the Supreme Court handed down the final judgment on 24th March, 2017.  Continue reading “Recent development in Japanese patent case law; the doctrine of equivalents and the Supreme Court judgment in the Maxacalcitol case”

TVCatchup II – Retransmission by cable not “exempted” in the InfoSoc Directive

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Last November, I reported on the GS Media case (C-160/15), which certainly gave rise to some debate. It appears that the CJEU is quite actively handing down judgments in the area of copyright. This is perhaps not too surprising, since the member states still have quite different national legislations and the harmonization from the EU is by no means exhaustive. Additionally, and more importantly, especially national copyright laws lag behind the rapid technical development, which is why many questions of interpretation may arise in national courts.

Only a few days ago, on 1 March, the CJEU handed down its judgment (C-275/15) in the case TVCatchup II. The national law in the UK included a provision, which roughly provided that copyright is not infringed in the case of immediate retransmission by cable. The relevant question from the UK court was “whether Article 9 of Directive 2001/29, and specifically the concept of ‘access to cable of broadcasting services’, must be interpreted as covering and permitting national legislation which provides that copyright is not infringed in the case of the immediate retransmission by cable, including, where relevant, via the internet, in the area of initial broadcast, of works broadcast on television channels subject to public service obligations.”

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The scope of patent with an extended term became clearer with three concrete standards provided by the IP High Court in Japan

A patent term may be extended if there is a period during which a patented invention is unable to be worked until a marketing authorization has been granted (For further information, see here). However, there was, until recently, no case law in Japan on the interpretation of the scope of patent with an extended term, and high uncertainty as to patent infringement by generic drugs was a big issue in the pharmaceutical industry. On 20th January, 2017, the IP High Court’s judgment (grand panel) was handed down, answering this issue by establishing three concrete standards. This judgment attracts great attention of generic companies and will boost their marketing of generic drugs because these standards contributed to clear away the uncertainty of patent infringement.

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Recent developments on the admissibility of patent term extension in Japan

Drugs are not allowed to be marketed without a marketing authorization. Taking into account the investment on R&D for a new drug and the necessity to recoup such investment, the patent term may be extended by a period not exceeding 5 years if there is a period during which the patented invention cannot be worked. Later in this post, I will discuss the judgment of the Japanese Supreme Court in 2015, which caused the guidelines on patent term extension to be significantly amended.

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

Guest post by William Wortley*

In this article we conclude our look at the potential implications of Brexit on the European intellectual property law framework. (Part 1 can be seen here).

Copyright

Although copyright is less harmonised than other areas of IP, it does not escape the potential ramifications of a “hard” Brexit. The Commission has signalled its intention to push forward with the Digital Single Market (DSM) Strategy, reshaping copyright to make it fit for the digital age. Certain legislation, such as the proposed Content Portability Regulation, are expected to come into force prior to the UK’s exit from the EU, although this will not stop it potentially losing effect post-Brexit if a settlement is not achieved. The regulation allows EU consumers to access digital content provided in their Member State of residence if temporarily in another Member State. If the content localisation provisions no longer applies after Brexit, content providers in the UK will be severely hampered by having to negotiate licences in the remaining Member States. The issue is of commercial importance to UK businesses, Continue reading “Sad to CJEU Go? What Brexit Could Mean for Intellectual Property (part 2 of 2)”

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 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.

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Patent litigation – Double track system vs. bifurcation system

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Double track system 

If you are sued by a patentee for patent infringement, one of the options you often have would be to attempt to invalidate the patent on the ground that the patent lacks patentability. The issue here is whether you can assert invalidity of the patent at issue to an infringement court, or you need to initiate a separate proceeding at a national patent office or a specialized patent court in order to argue patent invalidity. As for Japan, in addition to an invalidation proceeding at the Japanese Patent Office (Track 1), Japanese patent law allows a defendant in an infringement court to assert patent invalidity within the same proceeding (invalidity defense), and the court can judge the validity on its own (Track 2). This legal system can be referred to as a “double track system”.  Examples of jurisdictions with this system besides Japan are the U.S., the U.K., France and Korea.

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Into the void – The lack of interaction of IP and competition law internationally

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Competition law is well recognized and enforced either regionally or nationally in a large part of the modern world. However, quite surprisingly, there is no comprehensive international agreement, which would regulate competition law in any great substantive detail. An international agreement has certainly been discussed, but even today there is no global agreement, which could be compared e.g. to the Paris or Berne Conventions or TRIPS. The role of competition law has also been discussed within the framework of the WTO dispute resolution mechanism, but it has not won any significant ground within the system. Continue reading “Into the void – The lack of interaction of IP and competition law internationally”