Ethics in IP 3: The Right to Science

My past two posts on ethics in intellectual property (Part One, and Part Two on biotechnology) were essentially online brain dumps in advance of the Dubrovnik conference on Data Science and the Right to Science, hosted by the Inter-University Center. The IUC sits perched just outside the historic walls of Dubrovnik (thankfully still standing despite the damage done to its on screen simulacrum in Game of Thrones). My presentation at the conference had a simple goal: stop intellectual property law being used as a excuse for issues with access to medicine, inefficiencies in research, or overemphasis on technological solutions to social problems

It was a productive weekend.… Read more...

Ethics in IP, Part Two: Can I patent this fish?

This is the second part of a series (most likely of three parts) on ethics in intellectual property law. The first part is available here: “is there a role for ethics in intellectual property?“. In this part we focus on biotechnology and biological inventions.

In my last post I wrote about how ethical principles underlie the rights conferred by intellectual property law, and also how they shape the exceptions to those rights, both in relation to patentability, and infringement. More of the same this time round, but with a greater focus on humans, and plants, and micropigs.

In particular I want to look at the following propositions: why you can’t patent something in nature just because you discovered it; why you can’t patent plants or animals; and why some biotechnological inventions are unpatentable because of their effect on human dignity.… Read more...

Is there a role for ethics in Intellectual Property?

Oncomouse?

This is the first in a series of posts that will explore the interaction between ethics and the law of intellectual property. This first post will look at the ethics underlying intellectual property law, and the extent to which ethics has shaped exceptions to rights in intellectual property law.

Intellectual property and ethics may seem strange companions to some practitioners, but the law of intellectual property is philosophically rooted in ethical considerations. George Bell, a Scottish advocate in the early part of the 19th century, described the moral imperative behind intellectual property protection:

Of all things, the produce of a man’s intellectual labour is most peculiarly distinguishable as his own; and the Patents, or the statutes on which Copyright now rests, are intended not so much to create a right, as to protect it against invasion

George Bell, Commentaries on the Law of Scotland

Bell’s perspective reflects the philosophical conception of intellectual property originating in the work of John Locke, writing in his Second Treatise on Government.… Read more...

Garmin v Philips: Changing Cases

On 29th January 2019 the Hon. Mr Justice Henry Carr handed down his judgment in the case of Garmin (Europe) Limited v  Koninklijke Philips N.V. [2019] EWHC 107 (Ch).

The aim of this article is to look at how the parties’ cases in Garmin v Philips appear to have changed during the course of litigation, and to think about why that often tends to be the case in litigation, and in particular for patent litigation. As Henry Carr J says in his judgment: “Cases change during the course of litigation, which may mean that issues once seen as important no longer matter.Read more...

REGEN v ESTAR: Consequences for Patent Practioners

Sodium citrate content unknown

On 18 January 2019 we received our first patents trial judgment of the year in Regen v Estar Medical and ors [2019] EWHC 63 (Pat) (bailii). The trial itself took place over 5 days in June 2018. The claim was brought by Regen Lab against Estar Medical, who it accused of infringing its European Patent (UK) No. EP 2073862.

Regen describes itself as “a global leader in products for autologous regenerative medicine based on freshly prepared platelet rich plasma” whereas Estar considers itself more of a “world leader in Platelet-Rich Plasma (PRP) and autologous cell therapy technologies“: it would seem inevitable that there would be some bad blood between them.… Read more...

Glaxo v Vectura: Christmas comes early for Glaxo courtesy of Arnold J

The decision of the Honourable Mr Justice Arnold was handed down in Glaxo v Vectura [2018] EWHC 3414 (Pat) (Bailii) on 13 December 2018. Given the deluge of legal developments in the world of patents in 2018 we should perhaps be glad that this is a quiet one legally speaking (the word plausible is only used once: Merry Christmas!).

Glaxo were successful at trial, as the learned judge made a finding of non-infringement for all five of Vectura’s patents, and had them all revoked for ambiguity-insufficiency for good measure.

Update – 2/1/2019: A friend pointed out that the result is going to be a major blow to Vectura.… Read more...

Requests & Suggestions

Thanks to those who have provided feedback or advice over the last month, it has been great to hear from some familiar faces and some new contacts too. While the festive season is always a busy one I’ll be looking to post more in the new year.

If you have any suggestions as to topics or cases you would like to see covered then do send me an email at [email protected]

In case anyone is interested, in its first three weeks this blog has had more than 150 visitors from more than 20 countries; it’s always easy to forget how international intellectual property can be.… Read more...

Versace in the IPEC: No luck for No Fixed Abode London

In the recent hearing of No Fixed Abode London Ltd v Gianni Versace SpA [2018] EWHC 3221 (IPEC)  three IP infringement claims against Versace were struck out for having no resonable prospect of success. The claims related to designs used in and on Versace’s clothing.

For those unaware of the Claimant’s business (myself and the majority of the IP Bar included) “No Fixed Abode is a Luxury Designer Streetwear Fashion Brand founded from adversity and Made in London. NFA is for people that are non conformists.” (link)

The dispute as a whole appears to centre on the Versace Versus ‘diffusion’ line, and its lion logo, and the lion logo of No Fixed Abode London:

versus-versace-black-metallic-gold-lion-print-crew-neck-t-shirt-p4377-6014_image.jpgNFAL t-shirt

[image attributions and sources at the end of the article; unfortunately no commission is received on purchases]

The Judgment of Hacon J provides a few interesting points on summary judgment that are in line with the factors discussed in Part One and Part Two of my recent Article on that topic.… Read more...

Summary Judgment in IP: Part Two – What’s stopping you?

Getting to Court Early
(Photo by THE 5TH on Pexels.com)

Getting to Court Early

A key difference between IP claims and other litigation is this: after exchange of pleadings, what more does the Court really need to decide the case?

This article is Part Two of two. For Part One, see here: Part One.

Part One looks at early determination of claims in IP, focusing on the recent Judgment in Red Bull v Big Horn ([2018] EWHC 2794 (Ch); as reported in CityAM).

Fact Evidence

Continuing with the example of Red Bull v Big Horn: In some trade mark cases the Court may need evidence as to the perception of the consumer of the goods: I’m not aware how popular Red Bull is among members of the Bench, but I’m sure it has fuelled the occasional late night Judgment writing marathon.… Read more...

One strike and you’re out: Summary Judgment in IP?

Even amongst litigators there’s a common preconception that IP cases are complex, and not the sort of cases that are amenable to summary judgment – but is that really the case?

In the UK, early determination is sought under CPR 3.4 or CPR 24 – strike out or summary judgment respectively.  This article will run through the recent unsuccessful summary judgment and strike out application in Red Bull v Big Horn ([2018] EWHC 2794 (Ch); as reported in CityAM) to assess whether IP claims really are too complex for early determination.

To round things off we’ll look at three IP summary judgment success stories (one copyright, one designs, and one patent) to see the kind of cases that do fit the bill.… Read more...