The ICLR Blog: An obvious observation about obviousness

From The ICLR Blog: An obvious observation about obviousness: The law of patents is not always patently clear, but one point is obvious. The question of obviousness is not one that admits of endless el...

Better read the rest on their blog. It's a note on MedImmune Ltd v Novartis Pharmaceuticals UK Ltd [2012] EWCA Civ 1234, which the very name tells you can only be a patent case.

Apple takes licence for clock design

Reports throughout the media tell us that Apple has agreed to licence a clock design from Schweizerische Bundesbahnen (SBB), the Swiss railway operator, because the clock provided in Apple's iOS 6 was too similar. SBB's iconic design, the red second hand of which is in the shape of a railway guard's signalling disc, dates from 1944, and was designed by their employee Hans Hilfiker. It remains in use in stations throughout the railway service, and the design is licensed to Mondaine, a Swiss watch maker.

But this all begs the question, what intellectual property rights are there in a 58-year-old clock design? None in the UK, for starters. Copyright, which I guess would have applied back in 1944, will have been curtailed under Schedule 1 to the Copyright, Designs and Patents Act 1988, and if there were ever a registered design that protection will long since have expired. Surely Swiss law isn't very different (although the licence must be worldwide, and looking at national laws doesn't get us very far). So what's the problem? Evergreening, that's what ...

The terms of the licence remain confidential, but it looks as if (contrary, perhaps, to the reports) this isn't a licence of a design at all, but another type of intellectual property.

Competition law films

The Australian Competition and Consumer Commission has produced a short film about cartels, well worth a look, reported (with additional material) on her blog by Caron Beaton-Wells, associate professor at Melbourne Law School here. And that reminded me about a wonderful animated film, and entry in a competition run by the Competition Commission of Singapore - what an excellent way to raise awareness of competition laws.

EU patent court proposals

A guest post on Dennis Crouch's Patently-O blog by Angelos Dimopoulos, Assistant Professor at Tilburg Law School and Petroula Vantsiouri, Doctoral Candidate at the University of Cambridge, Faculty of Law, about the relationship between the existing courts of the EU and the proposed patent courts: A new highest patent court for Europe? Not as long as the Court of Justice of the EU is here - Patent Law Blog (Patently-O).

Fallon welcomes new procedure for small IP claims

Today saw the introduction, long-awaited, of a small claims track in the Patents County Court (which despite its name does not deal exclusively with patent actions). The Intellectual Property Office has put out this press release quoting my old friend Michael Fallon (why not Lord Marland, who is supposed to have the IP portfolio?): it seems to be the same as that put out by the Minister's own department, here, which seems like unnecessary duplication ... and, in these days of IP absolutism, perhaps a copyright problem? Surely not.

Cadbury can register colour purple as trade mark

HHJ Birss QC, sitting as a judge in the High Court, has upheld a decision of a Trade Marks Registry Hearing Officer to allow registration of a trade mark comprising, in essence, a single colour: Société Des Produits Nestlé S.A. v Cadbury UK Ltd [2012] EWHC 2637 (Ch) . Back in 2004, Cadbury UK Ltd filed an application (number 2376879) of a trade mark comprising a block of colour and a verbal description:

The colour purple (Pantone 2685C), as shown on the form of application, applied to the whole visible surface, as being the predominant colour applied to the whole visible surface, of the packaging of the goods

The goods specified were in Class 30:

Chocolate in bar and tablet form, chocolate confectionery, chocolate assortments, cocoa-based beverages, preparations for cocoa-based beverages, chocolate-based beverages, preparations for chocolate-based beverages, chocolate cakes.

The Examiner rejected the application on the grounds that it was devoid of distinctive character: however, on production of evidence of use the application was accepted and published in the Trade Marks Journal on 30^th May 2008.

In August 2008 Société des Produits Nestlé opposed the Application in Opposition No. 97819 and on 20^th October 2011 the Hearing Officer, Mr. James, essentially found for Cadbury and allowed the application. Nestlé appealed, arguing that the subject-matter of the application was not a sign, and that it was not capable of graphical representation. Under Section 3(1)(a) of the Trade Marks Act 1994, Nestlé contended, it was not registrable.

In the latest judgment, HHJ Birss QC explained that to prevent unjustified monopolies, registration of trade marks should be ‘kept firmly in its proper sphere’, and then, reflecting on the visible electromagnetic spectrum, posed the question ‘can Cadbury, even if they have shown that the public associate the colour purple with Cadbury’s chocolate, obtain a trade mark registration for that colour per se?’ He considered four judgements of the Court of Justice, which the Court of Appeal also reviewed:

·         Libertel v Benelux, in which the Court of Justice considered whether a Dutch telecommunications company could register the colour orange for telecoms goods and services; court held that a colour alone, which is not bound by any shape or outline, is capable of being registered as a Trade mark, but to satisfy the conditions of Article 2 of the Trade Mark Directive (i.e. Section 1(1) of the Trade Marks Act), the colour must also be a sign capable of distinguishing the goods/services of one undertaking from another.

·         Sieckmann v Deutches Patent und Markenamt, the Court of Justice addressed whether the smell of cinnamon (ethyl cinnamate) could be registered as a mark. The court held that smell could be a sign under Article 2, but it must also be capable of being represented graphically - which despite the sample and chemical formula, did not satisfy that requirement.

·         Heidelberger Bauchemie in which, a combination of blue and yellow ‘in every conceivable form’ was considered

·         Dyson v Registrar of Trade marks where Dyson sought to register the transparent collection chamber of a vacuum cleaner as a trade mark. The Court of Justice in Dyson confirmed its decisions in Libertel and Heidelberger and held that because the mark was for ‘all conceivable shapes’ of a clear collecting bin, this did not satisfy the requirement that the graphical representation should be clear and precise.

Nestlé argued that the mark applied for fell foul of Dyson because it relied on human subjectivity and other indeterminate factors: how can you judge with certainty whether a colour is ‘predominant’? That wording allowed many alternative readings, and the description of the mark was inherently uncertain The colour could not be a sign and could potentially lead to abuse and anti-competitive effects. Moreover, the mark was for a colour combination but would fall foul of Heidelberger since it was not spatially delimited.

The judge disagreed with Nestlé’s arguments. He stated that a mark is capable of satisfying Article 2 provided it is defined properly in words and with a Pantone code, even though that colour can ‘obviously be used in an infinite variety of ways’. The law in Libertel and in Heidelberger was robust and clear. The judge held that Cadbury's registration, was capable of being a sign under Article 2, and on the evidence had acquired distinctiveness for chocolate. He did however narrow the specification of goods, by adding the word ‘milk’ in front of ‘chocolate’, which given that the Cadbury’s product is not chocolate because it does not contain 25 per cent cocoa solids, but can be called ‘milk chocolate’ in the UK (and IE) by special dispensation under Directive 2000/36/EC (Annex 1 para A sub-para (4)(d)) seems entirely right.

Filesharing: the size of the problem

The Financial Times has an interesting piece (not behind the paywall, at least not yet) on the extent of the filesharing problem in the UK. It quotes a report by Musicmetric, and comes up with a (literally) headline figure of £500 million for the loss to the record industry in this country. I suspect this falls into the trap of assuming that all, or a sizeable proportion of, the downloads from illegal sharing sites represent lost sales, which was never the case back in the old days before I knew what copyright was when I used to tape schoolmates' LPs and let them do the same to mine. Given that this was pre-Dark Side of the Moon and Tubular Bells, I'm fairly confident that I won't be pursued. And I will also argue in mitigation that the result of taping from an LP was in no way whatsoever an acceptable substitute: it was usually pretty difficult to make out what you were listening to.

Dylan on copyright: "There are different rules for me"

Different rules, perhaps, about what infringes someone else's copyright - though that's not what the great wordsmith meant, as the context will make clear. Last year I blogged about the controversy surrounding some of his paintings (see here). Now the BBC has published a piece (hat tip to the IPKat) about "borrowings" dating back to 2006 and 2001 - and earlier. Of course, even the man's name is borrowed, but Dylan Thomas had few if any rights to stop Robert Zimmerman appropriating it, and little if any reason to try to prevent it anyway. And it's true that folk and jazz music have a rich history of borrowing, but not simply parasitic copying.

Well, Henry Timrod's copyright has long since expired, although Saga is still alive and kicking. Anyway, I don't know how extensive the taking might have been, although if I have time I am now interested enough to find out. It doesn't look to me as if this latest plagiarism accusation has the legs that the paintings thing did, but regardless of that I feel extremely disappointed that such an original, innovative artist should adopt so cavalier an attitude to others' work, whether protected by law or not.

Forum shopping: you can't have your cake and eat it

An interesting posting on the always-worth-reading IP Whiteboard blog from King & Wood Mallesons here,  Marilyn Monroe's estate finding that the protection given to publicity rights under Californian law would be handy, but being stuck with the long-ago decision to rely on her residence in New York to establish domicile and avoid the estate taxes that would have been due had she been domiciled in California. Another nice illustration of a point about intellectual property law: the fundamental interconnectedness of all things means that there are always interesting interfaces and overlaps with other areas of law.

It's all about the rights

Here's an interesting piece from the BBC Radio 3 blog, describing the problems faced in getting all the necessary copyright clearances to put on a concert and in the process nicely illustrating how what looks like a unitary piece of work might involve a large number of different copyright works to which I will refer students. Presumably the missing link here - the rights in the dialogue - was Arthur Laurents's work, though (leaving aside Shakespeare's claim to be the author) if you asked me who wrote West Side Story I would immediately say Leonard Bernstein - and probably not bring even Stephen Sondheim to mind. Which just goes to show ...

Damages for innocent infringement of designs? No, but how about an account of profits?

Remedies in cases of innocent infringement of UK registered designs are the subject of proposals from the Intellectual Property Office in a  consultation response published recently. The law will also be changed to stop registered or unregistered Community design rights holders getting damages for innocent infringements. The response to the consultation on the topic had been nearly unanimous that there should not be different remedies available to rights holders for innocent infringements of registered UK or Community design rights.

The consultation response says:

Based on the responses received, we therefore propose to introduce provisions which will make it possible for the owner of a UK registered design to seek a financial remedy from an unintentional infringer of the registered design. However, the remedy available will only be for an account of profits, and not damages. In order to equalise the provisions, the existing provisions for financial remedies for the unintentional infringement of Community designs will be amended to mirror this approach.

This is a balanced approach. It is right that the infringer, even if innocent, should not get away with the profits he has made from using someone else's rights: those profits rightly belong to the owner of the infringed rights. On the other hand, innocent infringers should not be liable for damages. Enabling the court to order an account of profits is a sensible way to deal with the matter.

Internet defamation: linking to sources as a defence

Bloggers need to take due care to avoid writing anything defamatory - it's certainly something that I worry about, and which constrains me sometimes from publishing what I really think. But if I merely report what other people are writing, and link to the source material, will I have a defence? Perhaps, if I am careful about exactly what I say ... Eric Goldman reports on his internet law blog a California case which deals with this very issue. Well worth reading, even if (a) the case is unreported and (b) it won't necessarily cut much ice in the UK anyway.

South Africa: design protection for car spares (or not)

Reading a case about protection of designs for car spares takes me back to the days of my youth. There haven't  been enough since BL v Armstrong. But you have to go quite a long way to find them these days: this one comes from South Africa, whose Designs Act no 195 of 1993 (available here, from the Japan Patent Office, oddly enough) is another exercise in nostalgia: there are many phrases that bring back fond memories of the original version of the Registered Designs Act 1949, on which presumably it was based. One important thing about the South African Act, though, is that it protects both aesthetic and functional designs, with different criteria for protection of the two categories. The requirements for protection of functional designs will also ring bells for readers familiar with Part III of the Copyright, Designs and Patents Act 1988 (and who isn't?). It's a real trip down memory lane. The most significant thing is that there is an exclusion from protection for functional designs where the article is a spare part (section 14(6)).

Like us, the South Africans have been wrestling with the problem of intellectual property protection for spare parts for some time: three decades, according to the AfroIP blog, starting with a boat-building case called Schultz v Butt 1986 (3) SA 667 (A) in which the defendant used a hull made by the complainant to make a mould from which to make hulls which it then sold in competition with the design owner, a case which might be considered to be rather clear-cut. The most recent case dates from 25th ultimo.

That case is BMW AG v Grandmark International (Pty) Ltd and another [2012] ZAGPPHC 139 and the judgment of the North Gauteng High Court, Pretoria, should you wish to read it in all its glory, is available from the South African Legal Information Institution, the equivalent of BAILII, here. There's a claim that the defendant was in contempt of an earlier court order, plus claims of registered design infringement and trade mark infringement. It's the design claim that's interesting, as the contempt case seems to have gone off at half cock and the trade mark case was defeated, ironically, by earlier cases in which BMW was the claimant.

Four registered design for the model known by its BMW code as the E46 but better known as the 3 Series (fourth generation, 1998-2005) were involved. This model was assembled in eight places around the world in addition to Munich, including a site in South Africa, where BMW has been the favourite premium brand of car for some time: in 2012 it held 7.9 per cent of the overall market, 33.9 per cent of the premium segment, so there's a significant parc of BMWs needing spares.

The registrations were for aesthetic designs, namely a bonnet, headlight, grill and fender [sic]. Surprisingly, the court took the view that the designs were in fact functional, and that they had been craftily registered as aesthetic designs just to circumvent section 14(6). How could that be? The court applied what a scholar of our 1988 Act would recognise as a "must-fit" and "must-match" analysis, and concluded that the designs all served a specific purpose – they had to look and fit a certain way to serve their purpose. The Act defines a functional design as one ""having features which are necessitated by the function which the article to which the design is applied, is to perform" - language more related to the concept in our law of "dictated solely by function" than the "must-fit" and "must-match" exceptions. I don't find it very convincing - but not being a South African lawyer, what I think probably doesn't count for a lot.

Moreover, the court decided that the designs failed the novelty test applicable to aesthetic designs, because they were anticipated by previous designs for BMW body parts. They were nothing more than developments of previous BMW body part shapes. That approach could deprive the vast majority of designs for spare parts, especially visible ones, of protection. But it sounds as if there will be an appeal - there almost has to be, given what's at stake - so perhaps we'll learn in due course that this is not in fact what the law means. Still, a very interesting case for design enthusiasts!

Book review: A Practical Guide to Working with TRIPS

A step back again in time as I get to grips with outstanding book reviews. This is an interesting little paperback by Antony Taubman, who as Director of the World Trade Organisation Intellectual Property Division (I assume the OUP website erred when it referred to the World Trace Organisation) is uniquely well-placed to write it.

The publisher's blurb tells us that this book "avoids extended legal analysis", an odd virtue in a book about law. But perhaps that is the point: it isn't a law book really, it's a guide to the topic for policymakers. Tellingly, the publishers don't reveal for whom it is thought to be essential reading (and publishers usually manage to make up a list that includes most literate members of the human race): they merely tell us who would be interested in this book. They include "legal practitioners operating in the international intellectual property field", but given the lack of heavy black-letter law in this slim (256 pages) and not-too-expensive (£44.95 - everything is relative: I just paid that for a pair of shoes) volume they are likely to need something a bit more substantial.

Nevertheless, I found it really interesting, which might tell you more about me than about the book but I hope counts as some sort of endorsement. And it's written with a light touch and entertaining style. Unlike most review books that come my way, this is one to read through from start to finish: it has something of a story to tell. And for most IP practitioners, TRIPS is an important part of the context rather than a substantive concern, something you need to know a bit about but the detail of which you can safely leave aside.

Of course, TRIPS is an instrument of absolutely central importance in the intellectual property world, the first attempt to create something coherent to replace what the author refers to as the "makeshift diplomatic assemblage" of GATT, and to replace diplomatic wrangling with a judicial process. It recognised properly for the first time the place of intellectual property in international trade law, but leaves the question (which I think remains unanswered) whether this approach would supplant the traditional IP model embodied in Berne, Paris and WIPO. The author asks whether the marriage of IP and trade law is one of convenience, or a shotgun affair. Is it a natural expression of policy convergence? Read Mr Taubman's book, and make up your own mind.

Another important question is whether TRIPS is a burden for developing countries with little benefit. The author ventures the opinion that because it sets out public policy goals for intellectual property it should be considered a Good Thing. Well, he doesn't say Good Thing, that was another pair of authors altogether, but that's the gist of it.

The TRIPS agreement also brings a bunch of other issues into the trade arena - traditional knowledge, human rights, property law. It has already led to a richer jurisprudence of international intellectual property, and as the original TRIPS agreement was never intended to be final word - it could hardly be that - it will continue to inform this area of law. IP enthusiasts, including most if not all practitioners, will continue to have an interest in where it takes us.

Copyright has adverse effect on investment in cloud

A recent economic study entitled “The Impact of Copyright Policy Changes in France and Germany on Venture Capital Investment in Cloud Computing Companies” by Professor Josh Lerner of Harvard Business School, reported by IP Watch a while ago here, finds that changes in copyright law in Europe have had a negative impact on investments by venture capitalists in cloud computing businesses. The study, for the Computer and Communications Industry Association (CCIA), blames a handful of court decisions in France and Germany on the scope of copyright, which sounds like a rather narrow range of scapegoats. The CCIA looks beyond those scapegoats, and its Vice President Matthew Schruers posted this blog post asserting that effects identified by the study provide evidence of a bigger trend in copyright concerns undermining investment.

Was it really necessary to carry out a study to conclude this?

Book review: EU Electronic Communications Law

Subtitled "Competition & Regulation in the European Telecommunications Market", this is another second edition from OUP. The authors are Paul Nihoul, of the University of Louvain (a town with a particular place in my affections) and Peter Rodford, formerly of the European Commission. There are 536 pages and the prices is the same as the Fawcett and Torremans book reviewed earlier, £195. That makes it look rather less good value, doesn't it, half as many pages for the same money, but that's probably not the way to look at it - if EU telecommunications law floats your boat, an expression I can't resist on this great day for British Olympic rowing, the other work won't represent better value to you.

As it happens, EU electronic communications law doesn't do much for me, but that's not the way to look at it, either: as a practitioner, I generally deal with what comes along rather than what turns me on. I noticed (because it's something a decent reviewer needs to include) that it was published on 25 August 2011 - which means that my reviews are becoming just slightly more timely, but also causes me to wonder where the last year has gone. I don't know, except that exactly a year ago I added a part-time job to the existing portfolio, since when I have been acutely conscious of how one deals with the legal problems that come along rather than those one would like to handle. I guess my work tends to be client-led rather than confined to a particular area - and being in-house for a couple of days a week, that's certainly client-led.

None of my workload has anything to do with telecommunications law, though. Except in the sense in which many lawyers frequently encounter it, the area of what can broadly be called data protection and privacy, and that features in this book. And increasingly there is an important interface between competition law and regulation and the protection of intellectual property - the duties of carriers and service providers to take steps to prevent infringements. In short, in an era of convergence, the field described in this book is pretty close to the centre of things. So it's going to be something a lot of lawyers are likely to need.

Indeed, we all have online lives which become more and more significant, and electronic communications law in the broad sense is going to carry on growing like topsy. Quite apart from the legal side of things, though, we should try to keep a sense of proportion - to keep our online lives in the right place, as I was reminded by this excellent posting on John Hull's What about Clients? blog recently.

Regardless of the subject matter, though, this is a heavy piece of work. For one thing, it has only five chapters, plus an introduction sub-titled (ominously) "How to use this book". It is rich in headings of different levels, making it (as one of my lecturers at university, later editor of Newsweek, said of Karl Llewellyn's work) like reading a knitting pattern. But its purpose is to provide information, not to narrate or entertain, so while I might prefer more readable prose it's not a valid criticism of a utilitarian piece of writing. If you need a book to guide you through this particular legal maze, this is it, and if you don't think you need a guide to this maze you might have to think again.

Book review: Intellectual Property and Private International Law

I have not been as diligent about writing book reviews as I should have been, so I have a bit of catching up to do. I'll begin with the second edition of Intellectual Property and Private International Law, by the highly distinguished duo James Fawcett and Paul Torremans, published by OUP last year but up to date to June 2010, and offered by them for the princely sum of £195. (Why, I wonder, do we use "princely" to mean "substantial" in that context? Are princes assumed to be rich, or merely profligate? Is a King's ransom much greater, and therefore outside the prince's budget?) The first edition, which was the only treatment of this subject (the second edition retains this distinction), dated from 1998, and since then there have been several important changes in the law - the Brussels Convention has given way to the Brussels I Regulation, the Rules of the Supreme Court to the Civil Procedure Rules, and the Rome Convention on Applicable Law to the Rome I Regulation. Private international law has become, more and more, a matter of European Union law. The Court of Justice has explored the territory in the Roche and GAT cases (and more recently in DHL v Chronopost), and domestically the Court of Appeal has considered it in the Lucasfilm case (which the authors describe as "disappointing"). The Supreme Court judgment, of course, came too late to be covered, which is a shame because it presumably overcomes the authors' disappointment.

Back when I first studied intellectual property law - the Patents Act 1977 was not yet fully in force, the Trade Marks Act dated from 1938, and the Copyright Act from the year of my birth, and the Registered Designs Act 1949 was still in its first iteration - its interface with international law was vanishingly small. National rights were enforced in national courts, and even the European Community kept a respectful distance from the area. There were international conventions in the field, but they were concerned with the acquisition and content of intellectual property rights, not with their enforcement.

Now, since the first edition of this book, the Internet has introduced us to the notion of "ubiquitous infringement". Other factors have also combined to give intellectual property law a substantial international dimension, including the activities of parallel traders - indeed, the process of globalisation has opened up all kinds of cans of worms that had previously remained safely sealed, or even buried out of sight.

The law is being brought up to date - in so far as the law ever gets up to date with technology: Brussels I is being reformed, with intellectual property high on the agenda, and (at the time of writing of the book - this part has certainly been overtaken by events) there was much talk of unitary patent protection and the UPLS. The international exploitation of intellectual property rights is responsible for a bunch of new problems, because legislation is sparse and international treaties have (the authors say) failed unspectacularly.  There have been scholarly initiatives such as the ALI principles in the US and the CLIP principles in the EU, which influence the suggestions for reform put forward by the authors.

The book - a staggering 1,056 pages (I use the word advisedly - not only does it describe what I think about the authors' achievement but it also serves to characterise the experience of carrying a copy) - falls into three sections, the last of only one chapter. These cover jurisdiction, applicable law and recognition and enforcement of foreign judgments. Further details of what's in each section appear on the publisher's website (follow the link at the top of this posting). It doesn't, as intellectual property textbooks once used to do far too often, lead the reader by the hand through the well-known gardens of basic intellectual property law before heading off into the undergrowth of private international law, and thank goodness for that: it is too easy, too tempting, to bulk up a book by including egg-sucking instructions that one's grandmother would find redundant. It's all good, solid, meaty stuff and essential reference (the implication that it is not a book to sit and read through from cover to cover is quite intentional) for the practitioner interested in this little area, and who among IP practitioners is not interested in it these days?

An offer they can't refuse?

I love the ambiguity in the title of this article from Canadian IP firm, Bereskin & Parr: Dealing With Inventors Who Refuse To Cooperate Or Disappear. In case the suspense is too much for you, I can tell you that it's concerned with employee inventors who become unavailable, not those who decline to make themselves scarce. As you guessed, of course.

The second-hand software market

The Court of Justice has decided in Case C‑128/11, UsedSoft GmbH v Oracle International Corp., that there can legitimately be a second-hand market for software licences, going in the opposite direction from that taken in the US (see my earlier posting about the Autodesk case, here). You can sell a licence for which you have no further use, but the one thing you can't do is sell excess user rights if you have paid for more users than you actually have working for you. The decision - a preliminary ruling on a reference from the Bundesgerichtshof - is based on the principle of exhaustion: the copyright owner's rights are exhausted once the software has been supplied on disk or downloaded from the Internet, so they cannot control subsequent sales.

No great surprise there, as the doctrine of exhaustion is central to the way intellectual property rights work in the European Union: but it seems at odds with the widely-used software distribution model that gives the end user only a licence. While it has been common practice to treat software as a good rather than a service (it doesn't fit happily into either category, does it?), assimilating software to audio CDs for certain purposes, the fact is that because "sales" of software are licensing transactions it isn't always appropriate to take this view. Of course, when a physical carrier is supplied there is a sale of goods involved too, but it's only an incidental part of the transaction, and focussing on that aspect gives a distorted idea of what the deal is all about. I think people take different views according to whether they are buying software or music: if I buy a CD I expect to be able to resell it, but if I buy a piece of software I'm not so sure about it - even if it's on disk, although clearly plenty of people do buy and sell software on disk. The Court directs us not to make such fine distinctions.

What is the software industry to do? There are technical solutions to part of the problem, of course, but it's not going to be possible to claw back those exhausted rights by technical means without getting into a whole new load of trouble. Perhaps more promising is the idea of granting licences for a limited time - most software licences, certainly the non-bespoke sort, are perpetual, which is only logical when a large sum of money is changing hands. But making licences expire and require renewal might be a good way forward - and can also assist customers along the upgrade path that software houses wish them to take rather faster than, left to their own devices, they would consider appropriate.

Unified Patent Court: progress - if that's the right word

Reports last week suggested that the UK government had successfully brought the EU patent behemoth to a grinding halt. More careful examination of what happened shows otherwise. There will be a Unitary Patent Central Court, and there will also be two sector-specific courts, one for mechanical engineering and the other for chemistry and "human necessities". I must be missing something, but patent agents used to divide the world into mechanical, chemical and electronic, and the last of that trio seems to be missing.

Munich gets mechanical patents, London gets chemical and that other category, and Paris gets the central division. Maybe I am missing something, but a classic piece of EU horse-trading hardly justifies celebration, does it? The so-called Intellectual Property Office is clearly happy, saying in its highly uninformative press release:

The Prime Minister has today secured a great result for UK business at the European Council on single unitary patent valid in up to 25 European countries and secured London to be the host for the unified patent court. (If one had to say one city was the host, surely Paris would be the candidate? But it's quite wrong to say that there is one host.)
The Prime Minister, David Cameron said:
"A vital part of the Court covering the pharmaceutical and life sciences industries, in which Britain excels, will be coming to London. This brings millions of pounds and hundreds of jobs. (The litigation, or the industries? If the latter, which I imagine is the case, how is this remotely relevant to the situation of the sector court?)
"And I secured the changes to the nature of the patent system that businesses were demanding." (I don't think there is much agreement among businesses about what changes were needed - and it seems abundantly clear that the vastly increased expense of obtaining patent protection and litigating at the EU level is as far from the interests of small businesses as one can possibly get. See that FT article a link to which I posted earlier ...).

The heads of state have suggested the deletion from the Regulation of the provisions dealing with enhanced co-operation, a typical EU-euphemism  (a EUphemism, perhaps?) for a form of co-operation which does not include all Member States, which most people would consider to be a failure of co-operation rather than an enhanced version of it. It is a steamroller that nine or more Member States can drive, to the exclusion of the others. Of course, in the patents field (apparently, according to Wikipedia so this must be correct, divorce law is the other area in which enhanced co-operation is being used) Spain and Italy are the outsiders. The suggestion that enhanced co-operation should not be used here is a welcome development as far as most people in the patents world are concerned - as the PatLit blog observes:

... the constant criticism by the experts in the field (see e.g. Professor Krasser's opinion and Sir Robin Jacob's opinion) has been successful despite of the deplorable lack of transparency (see J. Pagenberg's letter here).