Islestarr v Aldi: New tricks in the Brands v Imitators game

There is a very interesting Brands v Imitators judgment recently handed down in Islestarr Holdings Limited v Aldi Stores Limited [2019] EWHC 1473 (Ch).

This was the hearing of a summary judgment application brought by Islestarr (proprietor of Charlotte Tilbury makeup) in its proceedings against Aldi under the Shorter Trial Scheme. The Judgment is available on Westlaw.

The dispute related to what Islestarr alleged to be knock-offs of its makeup trays being sold in Aldi stores. Envisaging difficulties with a passing off claim Islestarr proceeded with a copyright claim, and in doing so succeeded in obtaining summary judgment over the discount supermarket.… Read more...

Are the days of unfettered harvesting and processing of personal data over?

Each year the International Bar Association runs an essay competition for junior advocates. Chambers encourages its pupils to have a go at the essay in the ‘Intellectual Property, Communications and Technology Law’ Section.

This year the question to be addressed was “Are the days of unfettered harvesting and processing of personal data over?” This wasn’t an area in which I had any litigation experience, but nonetheless it was an enjoyable challenge researching and writing an essay on what is a bit of a zeitgeist topic.

Sadly my entry wasn’t successful (to this day I don’t think I’ve ever even won a TV phone in) but I reproduce it below in case it is of interest.… Read more...

New: IPEC Guide 2019

The new users’ guide for the Intellectual Property Enterprise Court (IPEC) is now available. Below is a brief summary of some key changes of which practitioners should be aware.

Contents of Statements of Case:

The new guide contains cautionary guidance on the contents of statements of case. The IPEC guide has always stated that pleadings “must set out concisely all the facts and arguments upon which the party serving the statement relies.” The Guide now adds:

“This is sometimes misunderstood. All relevant facts and arguments must be stated. But they should not be set out in a manner which includes every detail.

Read more...

AI: Decoding IP – WIPO Conference 2019 (Part Two)

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On 18th June 2019 the UKIPO and WIPO hosted ‘AI: Decoding IP’: a conference dedicated to the AI zeitgeist in the intellectual property industry.

Part One features the introductory comments from Lord Kitchin and Francis Gurry of WIPO, followed by the panel on new business models, and how AI is disrupting IP.

This post, Part two, features the afternoon sessions on ownership, entitlement and liability (featuring Prof. Lionel Bently, Dr Eleanora Rosati, Prof. Tanya Aplin and others) and the sesison on ethics and public perception (Dr Christopher Markou and Dr John Machtynger of Microsoft).

Ownership, Entitlement and Liability

The afternoon is promised to be a “contentious” session.… Read more...

AI: Decoding IP – WIPO Conference 2019 (Part One)

On 18th June 2019 the UKIPO and WIPO hosted ‘AI: Decoding IP’: a conference dedicated to the AI zeitgeist in the intellectual property industry.

This post features the introductory comments from Lord Kitchin and Francis Gurry of WIPO, followed by the panel on new business models, and how AI is disrupting IP.

Part Two features (or at least will feature) the afternoon sessions on ownership, entitlement and liability (featuring Prof. Lionel Bently, Dr Eleanora Rosati, Prof. Tanya Aplin and others) and the sesison on ethics and public perception (Dr Christopher Markou and Dr John Machtynger of Microsoft).

Opening Session

The first session of the day is supposed to be an introductory panel with Chris Skidmore MP (Minister of Universities, Science, Research and Innovation) , Lord David Kitchin (no intro needed), and Mr Francis Gurry (Director General of WIPO).… Read more...

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?

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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

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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...