Wednesday whimsies

Thank you 1. The IPKat was delighted to learn from David Stone that the readers of this blog have rallied round to help him replace his precious stock of lookalike products (see "URGENT: call for lookalikes -- can you help?", here).  Apparently David has even procured a Reckitt Benckiser sprayer (don't point it at me! says Merpel).  It's good to see members of the intellectual property community rally round to assist one another, adds the IPKat.

Either Martin gets to Dallas,
or the fish get his paper

Thank you 2.  Donations to send young Slovak IP scholar and blogger Martin Husovec all the way from Central Europe to Dallas, Texas, for  this year's International Trademark Association Meeting continue to come in.  We can now tell readers that, if we can't get him all the way there, he can now afford to get across the rest of Europe and most of the way across the Atlantic too.  There are still opportunities to donate (click here for details) and this Kat hopes that some of the large law firms with which he has been in discussion will soon commit themselves, since all the contributions committed so far have come from small practices.


The IPKat posted this quick note on today's UK Supreme Court decision in Schutz v Werit, knowing full well that his readers would soon be rifling its contents for gems of value. Gary Moss (EIP) was one of the first to strike gold.  He writes:

Paragraph 38:- “The House of Lords and this court have emphasised on a number of occasions the desirability of national courts following the established approach to infringement of the Technical Board of Appeal of the European Patent Office.” 

Adds Gary: since when did the EPO opine on issues of infringement? He then points out a statement in the following paragraph: “The parties in this case have not referred to any relevant decision of the EPO ...  Wonder why that is? Oh dear!"  Merpel notes that MaxDrei also spotted the paragraph 38 curiosity, posting a comment to that effect below the original Katnote.  Thanks, Gary and Max.

A little while ago the IPKat's New Zealand friend Ken Moon (AJ Park)  wrote to draw his attention to the decision last December in Fisher & Paykel Financial Services v Karum Group LLC [2012] NZHC 334 on software copyright and misuse of confidential information. The judge essentially adopted the Navitaire, Nova and SAS approach in relation to the claims of copying software process logic and functionality and upheld FPF's defence to this counterclaim. However, despite some slight inspection of Karum's source code, he decided in all the circumstances that the third limb of the Coco v Clark test had not been made out.   Karum has appealed to our Court of Appeal. Connoisseurs of long drawn-out litigation will notice that this whopper of a case, totalling 268 paragraphs, followed 39 days of hearing between August 2011 and February 2012, with judgment being given some ten months later.  The Kat has a horrible feeling that Ken also sent him a note on this decision which he has managed to lose, so watch this space ...

The IPKat has learned from regular info-supplier Chris Torrero (katpat!) that the United Kingdom Parliament's Commons Science & Technology Committee has published a report with the dramatic-sounding title of “Bridging the valley of death” on the somewhat more prosaic but no less important problems of commercialising innovations developed in universities. The bit of the report that specifically addresses intellectual property issues beginning at paragraph 71 (page 25 of the 211-page report, page 27 of the pdf). Notes Chris, the report suggests making the mediation service of the Intellectual Property Office compulsory -- with penalties in the form of costs for those who refuse to mediate. It also recommends expanding the “Easy Access IP” cross-licensing system. “Refusal to mediate” is an interesting concept that is none too easy to define, since there is no clear dividing line between actually saying "no" and saying "yes, but I'm not going to budge from the position which I currently hold before mediation commences. Secondly, this can only work in respect of cases where both parties are substantially solely based in the UK.  The IPKat is currently in favour of all forms of mediation, whether merely as a prelude to litigation in which the issues become more clearly focused or as a means of ending a dispute outright, but he hopes that the IPO's mediation will be seen as just of a range of options for disputing parties rather than as the only show in town.


Guest blogger Sean Gilday's recent post on scams and, among other things, the use of "Intellectual Property Office" as the name of the UK's Patent Office, attracted the attention of veteran patent enthusiast Alan W. White, who writes:

" ...  The correct name of the UK IPO is, as you say "The Patent Office", but this does not arise from s.112 of the Patents Act 1977. It arises from the unrepealed section 62 of the Patents and Designs Act 1907 ... I draw attention to ... the word "shall". Thus, the "IPO" breaks the terms of the statute governing its very existence. 

The following (still existing) s. 63 of that 1907 Act also defines the term "comptroller-general" as a then -continuing definition, this stemming from a definition to be found in wording in the Patents, Designs and Trade Marks Act 1883 (repealed entirely by this 1907 Act). 

As regards, s.112 of the Patents Act 1977, the "Level 4" maximum fine still stands at £2,500 ..., this sum not having (yet) been increased from the figure decreed in 1991. However, the recent Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), in sections 85-87 ..., provides power to amend any such maximum fine under secondary legislation, but my researches have not yet found any Statutory Instrument  making such a change. 

I am not aware that any prosecution for breach of s. 112 (or its predecessors) has ever occurred but ... warnings have been issued which have led to withdrawal of job-vacant advertisements without the need for prosecution. Anyway, there must be some doubt as to whether s. 112 would apply to misuse of the term "IPO"".