Posts in Europe

One product in each category receives a Best of Innovation award as the most innovative product in its category. Today, we’ll take a stroll through some of the consumer tech products which have been recognized as the Best of Innovation at CES 2017.

There is a plausible case that the US law on obviousness is indeed compatible with the EPO problem-and-solution approach. It could even be said that the steps of the problem-and-solution approach appear to have been inspired by US law and practice! Under present working styles, USPTO examiners concentrate on the claims and spend little or no time reading the description. If they are to initiate obviousness rejections using the problem-and-solution format they would have to change habits and consult the description to locate any effects related to the distinguishing features.

On Thursday, December 15th, a subsidiary of Kenilworth, NJ-based pharmaceutical developer Merck & Co. (NYSE:MRK) was awarded $2.54 in royalty damages in a case involving one of the most popular available treatments for combating the hepatitis C virus (HCV). A federal jury decided that Gilead Sciences Inc. (NASDAQ:GILD), an American biotech firm headquartered in Foster City, CA, owed these royalties as a result of its infringement of patents for HCV treatments held by Merck’s Cambridge, MA-based subsidiary Idenix Pharmaceuticals. According to coverage of the verdict by Bloomberg, this $2.54 billion royalties award is the largest verdict for patent infringement in the history of the United States. The case was decided by jury in the U.S. District Court for the District of Delaware (D. Del.).

In April 2015, the National Basketball Association’s Milwaukee Bucks announced that it was in the midst of a project to redesign the team’s logo. Reports indicated that the logo would retain a version of the deer’s head which had graced the team’s previous logo, but with a new green and cream color scheme… The TTAB petition filed by Jägermeister identifies a series of eight U.S. trademarks held by the liqueur maker as grounds for opposition to the Bucks’ ‘186 trademark application. The vast majority of these marks have only been registered for use in trademark class 33 which covers alcoholic beverages except for beers.

In Europe and the US, patentability depends on a showing of inventiveness that is based on similar legal requirements but practice differs substantially and the resulting patent quality varies… At the USPTO, patent applications are rejected for obviousness (35 USC §103) already in a first Office Action by an examiner and his/her supervisor… Over in Europe the examination of inventive step begins with an opinion following which the applicant is invited to comment/amend.

Olaplex argues that L’Oreal is profiting from technology it first came into contact with in 2015, when L’Oreal discussed a possible takeover with Olaplex. After seeing Olaplex’s proprietary technology, including an unpublished patent application and Olaplex’s marketing strategy, Olaplex alleges that L’Oreal ceased with its acquisition efforts after signing a non-disclosure agreement with Olaplex. About a year later, L’Oreal began selling a series of three hair treatment products infringing upon Olaplex’s intellectual property related to bond builders, according to reports.

On Monday, November 28th, the UK-based nanotech firm Nanoco Group announced that it had acquired a patent portfolio from Eastman Kodak in the field of quantum dot electroluminescent displays (QLED). The commercial terms of the deal were undisclosed at the time of the announcement. According to a statement from Nanoco CEO Michael Edelman, the acquisition reflects the company’s belief that liquid crystal display (LCD) technologies will dominate in the coming years while QLED tech could become a very valuable contender in display tech over the long term.

European practice requires a strict distribution of the features before and after “characterizing”, where those prior art features that are common with the definition of the invention must be included in the pre-characterizing part. A useful way of thinking about a 2-part claim is that, schematically, the pre-characterizing part, taken alone, is a claim that covers the invention but is so broad that it covers also the closest prior art. This broad definition is followed by a characterizing part that specifies the features that confer novelty to the entire claim. Thus, the pre-characterizing part is is not a definition of the prior art but is a non-novel definition of the invention.

A recent report from French consulting firm PMP Conseil made waves in the media for indicating that public performance exemptions in U.S. copyright law, such as Section 110 exemptions, cost copyright owners $150 million each year in lost royalties, $44 million of which is attributable to U.S. copyright owners in Europe. On November 11th, this study was presented by the International Council of Creators of Music (CIAM) at it’s annual conference in London. CIAM maintains that the U.S. is one of two “more economically developed countries” that have an exemption in place for playing music in bars, restaurants and retail establishments by radio or television.

A complaint regarding Elekta’s radiotherapy and cancer treatment technologies was filed by Palo Alto, CA-based Varian Medical Systems (NYSE:VAR) in September 2015. The complaint alleged that Elekta violated 19 U.S.C. § 337 which governs penalties for unfair practices in import trade. Varian alleged that Elekta’s medical systems infringe upon a series of six U.S. patents held by Varian.

McDonald’s choice to go with a pre-treated graffiti look in some of its restaurants has posed legal challenges along with consumer concerns. On October 3rd, McDonald’s was listed as a defendant in a copyright infringement action filed by Jade Berreau, the administrator of the estate of graffiti artist Dashiell Snow, a former girlfriend of Snow and the mother of his only child. Berreau alleges that graffiti decor used by McDonald’s in the interior of hundreds of its restaurants around the world directly infringes on a “tag,” or graffiti lettering, which was developed and used by Snow and became strongly associated with his work. The case has been filed in the U.S. District Court for the Central District of California (C.D. Cal.).

The distinctive character is one of the universally accepted criteria for registration of a sign as a trademark. This criterion is derived from the main function of a trademark, i.e. to distinguish the goods or services of one undertaking from those of other undertakings. This requirement is set out in Article 6quinquies (B) (2) of the Paris Convention for the Protection of Industrial Property and in the national laws of the countries that are parties to this Convention. Ukraine and the European Union (the “EU”) are no exception. Both in Ukraine (Article 6(2) of the Law of Ukraine “On Protection of Rights to Trademarks”) and in the EU (Article 3(1) of the EU Directive to approximate the laws of the Member States relating to trade marks), signs which are devoid of any distinctive character may not be registered as trademarks.

Recently, Windows 10 data tracking has gotten Microsoft into legal troubles with a data regulatory agency that has been engaged with data privacy activism in the past. France’s Commission Nationale de l’Informatique et des Libertés (CNIL) issued a formal notice to Microsoft informing the company that it has three months to take measures that will make Windows 10 compliant with the French Data Protection Act. CNIL noted multiple ways in which Windows 10 fails to satisfy French data protection law including excessive data collection from apps and the Windows Store, lack of security measures for personal identification numbers (PINs), a lack of user consent for targeted advertising and no option to block cookies. (At this point, it should be pointed out that CNIL’s official website uses cookies, as the screenshot posted here will show readers.)

The focus of the political advocates pushing march-in may be lower drug costs. But the long-term costs of ripping apart IP rights are far higher and more fundamental than advocates acknowledge. The long-term price of exercising these exceptional prerogatives could include creating a crisis in confidence over use of federally funded research discoveries, dried-up private investments where basic research has federally funded fingerprints, hesitation to commercialize university research, and a corresponding drop in start-ups, new products, economic development and technological advancements. March-in could effectively repeal Bayh-Dole.

Over the past 18 months, our clients have begun to show greater interest in international patents (e.g. non-US). Increasing client interest in international patents corresponds with the general rise in importance of international patents (continuing ascension of the Chinese market, potential for unitary patent for Europe), more anti-patent owner decisions in the US, and greater patent litigation outside the US.…