Alligators, crocodiles and cutlasses: trade mark infringement in Guyana

The markets of the developing world present a rich environment for infringement of trade marks and intellectual property, offering perpetrators quick and substantial profit with limited risk of interference from local law enforcement.

In Guyana, such a scheme infringed on the trade mark of a United Kingdom-based tool manufacturer and played on the cultural heritage buyers had with both the tool and the trade mark.

Fieldwork in developing nations is critical to investigate and re-investigate infringements of trade marks and intellectual property.

Rethinking what international patenting really says about Chinese innovation

Chinese patenting abroad has risen impressively in recent years, and analyses have pointed to these numbers to conclude that Chinese patent quality and value, and China’s overall innovation trajectory, are more positive than conventional wisdom indicates. This article critically assesses these conclusions.

The article posits that although international patenting data have often been used as indicators of the quality and value of firms’/other entities’ patents, and countries’ overall innovation trajectories, there are several overlooked reasons why such data are not as representative of these components in China as recent analyses suggest. The assessment—which draws on a literature review, statistical analysis and consultations with Chinese firms—shows that without careful consideration of China-specific ‘institutional and scale’ as well as ‘rational-firm’ considerations, conclusions drawn from international patenting statistics about Chinese entities’ patent quality and value are misleading. This understanding provides a more tempered and objective outlook on China’s innovation trajectory and concludes that several different approaches, which do not utilize only certain single metrics based on international filing or grant data (including for triadic patent families or Patent Cooperation Treaty filings or other metrics), are needed in order to make robust assessments of Chinese entities’ patent quality and value.

This article provides practical insights about how to interpret more accurately the rise in Chinese entities’ international patenting filings. The analytical considerations and approach developed can be used by businesses to improve strategic planning and advice-giving, and academics and government analysts to more accurately conduct research and draw policy conclusions related to China’s innovation outlook.

Protecting incremental invention in India

India has made several amendments to its patent legislation in accordance with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and has provided product patent protection for drugs since January 2005. Since TRIPS, India has emerged as one of the major players in the global pharmaceutical industry.

Though India’s development in terms of intellectual property is universally recognized, recent judgments in the pharmaceutical field have created an impression among innovator companies that incremental/improvement inventions are difficult to protect in India. Thus India’s unique patent law and product patent protection rulings have received a mixed reception, with both appreciation and criticism from across the world.

This article discusses some case studies—Novartis v Union of India (Glivec), Roche v Cipla (Tarceva) and Merck v Glenmark (Januvia)—and analyses the appropriate way forward to protect incremental innovation in line with Indian patent law.

The Guidelines on technology transfer agreements: the second edition and its consequences on patent pools

Copyright exceptions for the digital age: new rights of private copying, parody and quotation

This article considers the impact of the entry into force of the new UK copyright exceptions concerning private copying, parody and quotation.

This article examines the scope of each exception, explores areas of uncertainty and assesses their likely practical impact. It also considers whether the ‘private copying’ exception is intra vires.

The article concludes that the UK government has adopted an overly cautious approach to reform in this area, which fails to fully achieve its stated goal of producing copyright exceptions ‘fit for purpose’ for the digital age.

The Apple store and unconventional trade marks: how easy are they to enforce?

Following the judgment of the Court of Justice of the European Union in Apple Inc, regarding the potential registrability of a store front and layout as a trade mark, this article considers its potential enforcement value, if registered. It reviews some of the main cases relating to both the scope of protection afforded by such marks and the potential grounds of infringement.

The article notes that so-called unconventional marks are often used in conjunction with word marks or other branding, and this will apply equally to potentially infringing signs. The impact of this other branding on the assessment of infringement is considered.

The article concludes that, over and above the challenges associated with the registrability of unconventional marks, there are hurdles to their enforcement. Nonetheless, in certain contexts, obtaining this type of trade mark will provide greater protection, for example where passing off may be difficult to establish.

Copyright meets the digital revolution

Drospirenon and Damping Unit: lifesaver for a German doctrine of equivalents or very old wine in new skins?

According to recent German Federal Court of Justice (Bundesgerichtshof, BGH) case law, the argument of equivalent infringement of a patent has become particularly difficult. In two recent decisions, the Düsseldorf Higher Regional Court, certainly the most renowned and decisive patent court of instance in Germany, seemed to have adopted an approach which had been considered antiquated for a long time. This return may come at a price: It could cause a significant loss of legal certainty and marginalize the German patent practice compared to other important jurisdictions, eg to the practice in the U.S. Even though the U.S. Court of Appeals for the Federal Circuit has strengthened the patentee’s rights in Ring & Pinion Service Inc. vs. ARB Corporation Ltd.,1 U.S. practice clearly values the aspect of legal certainty higher than the Düsseldorf Higher Regional Court.

One size does not fit all

Developing a P2P program is not punished under Spanish law … yet

The Court of Appeal of Madrid, Section 28, recently handed down a judgment settling the controversy surrounding the liability of peer-to-peer (P2P) interchange-enabling programs’ developers, stating that, for the time being, Spanish law does not impose any liability on them.