The art of writing is the art of discovering what you believe.
Gustave Flaubert

Saturday 14 January 2017

Triad of protection

An expression apparently coined by Joachim Bornkamm, judge of the Budesgerichtshof (German Federal Supreme Court), now retired, and professor at the University of Freiburg, in his Stephen Stewart Memorial Lecture of 1999, to describe the three-part test for conflicts in the European Union trade mark system (double identity, similarity plus likelihood of confusion, and unfair advantage or tarnishment).

Friday 18 November 2016

The second edition

I am about to start in earnest on a second edition of the Dictionary - so this is your opportunity to let me know what I should include. Headings only thank you - I am not seeking complete entries. Writing the definitions is my job - and it's what gives me enjoyment, especially when someone says to me "I didn't realise you were so funny!".

Friday 14 October 2016

European Patent (partly revised definition)

Still a misnomer, although the European Union Patent [q.v.] will more closely resemble a European Patent than the bundle of national rights that the European Patent Office has been granting so far in its existence.

Although the patents making up that bundle are referred to as European Patents, they are effective only in the contracting states which the applicant has designated. In EPO documents, including published versions of the application and the granted patent, the letters "EP" precede the patent's number in much the same way that the letters "GB" would be used internationally to identify a UK patent (although there are better examples). If the patent is then the subject of legal proceedings, it will be referred to as a European Patent (UK).


A blend of the words "British" and "exit" [from the European Union], coined by The Economist in 2012 but inspired by the earlier coining "Grexit" which dates from the time not long ago when Greek membership of the European Union seemed unsustainable. The main difference between the two might turn out to be that whereas Grexit was avoided, Brexit will become a reality, although it has frequently been described in the aftermath of the referendum of 23 June 2016 which gave the government its mandate to pursue it as a delusion.

The popular vote, in which 37.74 per cent of the electorate voted to leave, was advisory only, but this nicety may have been lost on many voters and it certainly does not appear to have had any influence on the government. The process of leaving the European Union requires the UK to give notice under Article 50 of the Treaty of Lisbon, and will be completed (unless all Member States agree to an extension, which is so unlikely that it can be ignored) two years later. The UK government has announced that it will give such notice by the end of March 2017, so the UK should cease to be a member of the EU on 1 April 2019. Whether the UK or what some of our politicians are pleased to call the "rump" EU will be the April Fools remains to be seen.

In the intellectual property law field, Brexit will not perhaps be quite as disastrous as in other areas. Indeed, repatriating intellectual property law and being able to ignore some idiosyncratic decisions of the Court of Justice could be a major improvement over the present situation. Primary legislation based on directives should survive Brexit unscathed, and secondary legislation under section 2(2) of the European Communities Act 1972 which implements EU obligations will, the government promises, be brought under some new statutory authority, so there will be no immediate changes to the law. The powers given under s.2(2) have been useful in that they have obviated a need for Parliamentary time to be found to change the primary legislation on copyright, trade marks and registered designs: in the future copyright law especially might have greater difficulty keeping up with technological change, but we might be spared other changes like the the Trade Marks (Proof of Use, etc.) Regulations 2004 which amended the anti-dilution provisions of the Trade Marks Act 1994 to remove the limitation to the situation where the parties' goods or services were dissimilar.

In two areas Brexit will have a significant impact on intellectual property law. First, owners of EU trade marks and registered designs will have to secure separate rights in the UK: some mechanism for achieving this is likely to be put in place before Brexit actually happens, but in the meantime applicants for EU rights are likely to consider applying for national rights in the UK too. Second, the Unified Patent Court agreement provides specifically that it must be ratified by the three states with the most European Patents in force, namely France, Germany and the United Kingdom, of which the UK might not feel any pressing urgency to take that crucial step.

Monday 21 September 2015

Innovation patent (Australia)

The Dictionary contains a brief definition of  'innovation patent', a form of utility-model protection (or petty patent) known to Australian law. Now, following a report by the Advisory Council on Intellectual Property (ACIP) in May 2015 recommending that the government consider abolishing it altogether, IP Australia is seeking public submissions on the recommendation. ACIP had spent three years on its report before finding itself unable to come down in favour or against innovation patents, but it seems like an unloved intellectual property right which will have few supporters when the consultation closes (28 September). Having written that, I will probably be proved completely wrong.

PS: The Intellectual Property Laws Amendment (Productivity Commission Response Part 2 and Other Measures) Bill 2019 has now been passed by both houses of Australia’s Federal Parliament, abolishing the innovation patent system in mid 2021. It does not have retroactive effect and existing rights will not be affected. So I was not wrong.

Saturday 27 June 2015

Panoramic Freedom, Freedom of Panorama

From the German, Panoramafreiheit. The freedom to take photographs and make other images of buildings, sculptures and other features of the man-made landscape that may be protected by copyright. The 1709 Blog reports that the right is more liberally granted in the common law copyright countries than in the civil law world.

'via Blog this'

Friday 19 June 2015

Innovation patent (Australia)

I included a short definition of "innovation patent" (basically, Australian for "petty patent") in the Dictionary. Now Warwick Rothnie's excellent Patentology blog reveals that the Advisory Council on Intellectual Property has suggested that the law on the subject be repealed.