The team is joined by GuestKats Mirko Brüß, Rosie Burbidge, Nedim Malovic, Frantzeska Papadopolou, Mathilde Pavis, and Eibhlin Vardy
InternKats: Rose Hughes, Ieva Giedrimaite, and Cecilia Sbrolli
SpecialKats: Verónica Rodríguez Arguijo (TechieKat), Hayleigh Bosher (Book Review Editor), and Tian Lu (Asia Correspondent).

Monday, 30 April 2012

Katonomics 15: the economics of IP litigation

IP litigation -- just
an application of
game theory?
Here's the second post in the third series of Katonomics from the Kats' treasured friend and colleague Doctor Nicola Searle.  Katonomics is the Kat's IP-friendly version of economics, which the dedicated members of this blog team bring to you, sparing literally no expense. The idea is that economics, which almost exclusively drives IP these days, should be demystified and made more accessible to the IP community. If you don't believe that this can be done, or done well, you can check out the details of the two earlier series here and last week's gem on design right here

This week Nicola has chosen intellectual property litigation as her topic for analysis.  Ready for some fascinating revelations?  You should be! She writes:

"Like medical malpractice suits, IP litigation theoretically serves to keep practitioners in check and test the system. Side effects may occur. An argument in favour of a European unified patent system is that it reduces litigation costs. The expense of IP litigation, the perception that the use of litigious threats is increasing (e.g. ACS Law) and the rising role of tr... ehm, non-practising entities (NPEs) means that the role of litigation in IP merits examination.

For economics, litigation offers two main areas of analysis: policy and firm strategy. As a policy tool, litigation is a means to adjust IP strength. For example, a national office could choose to grant all patent applications and allow litigation to determine the validity of a patent. Or, the office could grant only the most innovative patents and have no litigation over validity. In reality, we have a balance between these two scenarios where IPR are granted above a certain level of innovation and the court system clarifies disputed rights. However, this system may not benefit everyone and small firms, in particular, are disadvantaged.

IPKat readers should enjoy this quote by Suzanne Scotchmer in her book, “One of the things that economists have difficulty explaining is why disputes ever reach the courts.” Two opposing parties with relatively the same amount of information (via disclosure) should have reasonably close expectations of the outcome of court case. Settlement is a logical outcome as it allows for the parties to avoid the expense of litigation. In practice, we know that a good deal of cases reach court.

The evidence suggests firms use litigation strategically. In particular, firms may seek to build up a reputation to dissuade would-be infringers. Litigation represents an important threat-point in bargaining situations. Ending up in court may the result of a failed brinkmanship strategy where one party has attempted to force the other to back down. Counter-litigation by defendants may be an example of a tit-for-tat strategy. Here we delve into the economic area of game theory. Readers may be familiar with game theory from the movie A Beautiful Mind about the famous game theorist and Nobel Prize winner, John Nash.

A lot of excellent work on patent litigation was done by the late American economist Jenny Lanjouw and her co-authors. With British-based economist Mark Shankerman, Lanjouw finds that 95% of patent suits settle before trial. Litigated patents are more valuable than non-litigated patents. Where competitors have patents citing a particular firm’s patent, that firm is more likely to litigate to build reputation. They also argue that small firms are disadvantaged in patent litigation. Larger firms tend to have larger patent portfolios and more resources which improves their bargaining position and the likelihood of cross-licensing. Larger firms are more likely to repeatedly interact with other IPR holders in their sector, which again creates an environment more suited to out of court resolutions.

With Harvard economist Josh Lerner, Lanjouw argues that preliminary injunctions allow stronger firms to prey on weaker firms. In cases where preliminary injunctions are requested, plaintiff firms are nearly twice are large as in cases where preliminary injunctions are not requested, and defendants tend to be smaller. This again suggests that the litigation system disadvantages smaller firms. (Lerner and Lanjouw have a survey of litigation research and the UK Intellectual Property Office has related SME papers)).

The work mentioned here covers American patent litigation which is both important and more easily analysed due to the availability of data. The general conclusions of patent analysis should also be true for other IPR and other countries. However, Hoti et al argue that, unlike patents, trade mark litigation is likely cyclical and peaked in 2000. As mentioned previously, very little evidence exists for copyright, design rights and trade secret litigation. Economic analysis of non-American IP litigation is uncommon. Chief Economist of the European Patent Office Nikolaus Thumm notes that European litigation of patent infringement is relatively rare in comparison to the U.S.

The costs of litigation, like profits lost to infringement, reduce the value of IP as an incentive to innovate. Bessen and Meurer calculate that lawsuits cost infringers, on average, US$500k in legal fees. However, the negative impact on stock market value means that these firms lose on average US$28.7M. With Ford, they argue that NPEs create billions of dollars of lost wealth which is not transferred to innovators. The success of NPE litigation increases incentives for broad, low-quality patents and therefore decreases the ability of patents to incentivise innovation.

NPEs represent a business model based on a particular litigation strategy. Are they a nasty side effect of the litigation system or merely another means to keep the system in check?".

Pitchforks and Privacy: CISPA - The U.S. Government's Latest Efforts To Infuriate the Twitter Crowd

passo dobleNot to double up on Catherine’s introduction to the issues of web privacy in her recent blog, but after reading it, this Kat thought that the looming U.S. Cyber Information Sharing and Protection Act (CISPA) could use a little attention.  This Kat assures you that it is getting plenty of attention in the U.S. from the Twitter crowd who killed SOPA just a few short months ago.  The bill is certainly not making any friends among internet users.

This Kat would rather dance a tango with a pit bull than get tangled up in the language of the bill that just passed the U.S. House, because there are at least two competing bills in the U.S. Senate, and everybody knows the Senate will work on its own version just to show the House how much smarter they are over at Senate.  (And the wheels of politics go ‘round....)    But we shall at least paw at the edges.  

CISPA authorizes the Director of National Intelligence to establish procedures for “allowing and encouraging” the sharing of information between the private sector and intelligence agencies as it pertains to cyber security concerns.  The private entities involved must be “certified,” meaning the U.S. government must feel that the entity is one worthy of receiving government security information. The government’s use of information is limited to the prevention of cybersecurity crimes, national security concerns, or the prevention of death or physical harm, or child pornography or human trafficking.  

Certain information (such as library records) is exempt from being shared with the government, and the government does maintain a certain amount of liability for using information in a manner not authorized by the bill.
The system is voluntary - neither side is required to share information. 
There are of course the usual (and quite legitimate) complaints about vagueness and overbreadth in the legislation, and the absurd but not unexpected howlings about how the bill will kill Facebook (a supporter of the bill, no less) and internet pornography (likely to survive).    This Kat’s hackles are still up just a bit about the provision of the bill which allows provide internet security companies to “use cybersecurity systems to identify and obtain cyber threat information to protect the rights and property” of the companies they are paid to protect.  Arguably Facebook’s right to use and share information is not limited to the prevention of internet security crimes, because anything it gleans through its security provider can be used for anything Facebook believes is in its own interest.  Furthermore, Facebook and the like are exempt from liability to users for actions taken under the purview of the bill.  But this Kat has very smart friends in the data world who believe that the defintion of “cybersecurity information”  in the bill is likely sufficient to protect our private information.  

Image: Carlos Porto /
Most problematic is that it is not entirely clear what problem CISPA is trying to solve.  All of the information the government is seeking to access under this bill is already available to it, albeit through the proper warrant and due process channels.  The Feds will have to do a much much better job of selling this legislation to the American public if it expects to survive the next Twitter Attack.  But at the end of the day, this Kat would like to ask the Twitter crowd if it has considered how much the companies covered by this bill already know about them anyway
The Senate versions of a similar bill are massive, and it is far too early in the process to comment on them  (They can be read here and here, if dear reader insists).  

It is incumbent upon all of us to pay careful attention to how much our governments and our service providers are paying attention to what we do on the internet, if it isn't already too late to control.  

Lost in IP Translator -- a trilogy of treatises: III

By now most readers will be aware of the impending ruling in Case C-307/10 Chartered Institute of Patent Attorneys, which was referred to the Court of Justice of the European Union (CJEU) back in 27 May 2010.  The Opinion of Advocate General Bot was delivered on 29 November last year. Readers may also be aware of the awesome silence that has descended on this case since the Opinion was given.  Time passes, the 2012 Olympics approach, and another few million Chinese are born, but the Curia diary here remains silent and static.

For the benefit of new readers, the problem at the heart of this action is this. The Chartered Institute of Patent Attorneys applied to register the words IP TRANSLATOR as a UK trade mark for the products in Class 41 of the Nice Classification, headed ‘Education; providing of training; entertainment; sporting and cultural activities’. What's the problem, you might wonder. Well, it's this: translation services are not mentioned in the heading 'education; providing of training; entertainment; sporting and cultural activities' -- but they are listed as a subheading. You can't register IP TRANSLATOR for translation services, since it's descriptive and probably non-distinctive too -- but if you are only applying to register it for 'education; providing of training; entertainment; sporting and cultural activities', who says you even want that mark for translation services?  The practice of Europe's trade mark granting establishments varies: some say an application to register the things described in the heading automatically includes all things listed in the unmentioned side-headings. Others say you only get what you ask for and, if you don't mention translation services your application to register a mark for other things won't be fouled up by the fact that those services happen to fall within the class for which you've sought to register the headings.

In the third of his trilogy of posts on the subject, the IPKat's friend and seasoned trade mark practitioner Richard Ashmead concludes his reflections on the likely outcome of the ruling and its possible consequences for trade mark granting offices and practitioners in Europe:

IP TRANSLATOR consequences - part 3 
Two weeks ago I gave some thought here to the quite widely proffered proposal to provide compensation for CTM registration owners for perceived losses of anticipated scope if OHIM moves to a “means-what-it-says” approach, and last week I wrote here on whether a specific Court requirement for an EU-wide standard of clarity and precision in applications will affect the way OHIM and other EU IPOs examine lists of goods/services in applications. I also touched then on whether the AG in his IP TRANSLATOR Opinion does or does not speak against the use of genus terms in applications. These thoughts were all based on an assumption that the Court’s IP TRANSLATOR judgment will largely follow the November 2011 Opinion of its Advocate-General (summarised in bullet-point format here). 
This week I want to focus again on class headings and the approach to them of OHIM in its Convergence Programme.
OHIM’s Convergence Programme 
In July 2011 OHIM launched its Convergence Programme to try and reach common ground on a series of issues for which IP offices around the EU have different practices. It has gathered together over twenty other EU IPOs to work together to bring about further harmonisation of practices where no legal changes are required, those being largely the preserve of the Commission and its currently-awaited new Directive/CTMR package. OHIM expects to involve user organisations in its Programme too, but I do not know to which point it has reached. 
Of the Programme’s five current projects two involve classification. The first is “CP.1 Harmonization of TM Classification practice of G&S” which aims for agreement from all the Harmonised EU IPOs to use the same database of pre-approved goods/services terms, presumably under the Euroace banner. A part of this is called “Taxonomy”, which is described as looking to introduce a hierarchical genus-species structure to allowable terms within a given class. I am not yet fully clear how the results of their work on taxonomy will sit with WIPO’s class headings but a picture is coming together, of which more below. 
Next we have “CP.2 Convergence of Class headings”, which has been described as seeking a compromise between the EU IPOs which interpret class headings as meaning exactly what they say and those others (including OHIM) which treat the class headings as covering for all of the goods and services of their class. Some of OHIM’s published comment on CP2 has been confusing, or at least had confused me, notably that what became CP2 was planned “…. to try and reach consensus on different interpretations of the scope of class headings in trade marks …” and to “Develop a commonly acceptable set of comprehensive classification terms covering all goods and services in a given class at a given time”. This gave a feel of an attempt to keep the very “class-heading-covers-all” practice now likely to be dismissed by the Court in IP TRANSLATOR, but a later CP2 announcement I think starts to make things clearer in talking about: 
“... acceptable group titles usable in trade mark applications that in combination cover all goods or services in the harmonised database in a given class at a given time” (underlining added) 
Note that the underlined wording does not refer to all goods/services in a class, but in effect to all pre-approved terms in a listing such as Euroace. 
It looks then that this is a case of the CP2 team assembling all pre-approved goods/services in a class to produce a “class scope” list of most, but probably not all, goods/services in the class, which can be accepted under CTMIR Rule 2 and UK TMR Rule 8 (or whatever replaces them when the Commission’s work is done). The term “class scope” is a potential problem in that it gives a sense of full class content, whereas it actually seems intended to contain those goods/services in a class which have, to date, been approved. “Approved class terms” is not exactly felicitous but something along those lines will need to be developed to avoid any implication of full class cover. However if this understanding does reflect CP2’s expected outcome, it looks positive as a separation between what a class covers in the abstract and a listing of pre-approved goods/services in the class which can be used in any EU trade mark application. There will, I am sure, be within that a hope that the taxonomy approach to pre-approval will lead to some sort of “class-heading Mark II” for each of the 45 classes covering all goods/services in each class. I do not see that as possible but, if the appetite is still there to let businesses get registration rights for something close to all goods/services in a class, this could work. What that seems to suggest is: 
• The Nice Classification will continue to function as now, current class headings included, in deference to its international effect.  
• OHIM’s Convergence Group will produce a pre-approved and classified list of goods/services all of which will be acceptable in all EU applications, and ...
• ... a set of 45 “class scope” wordings (although hopefully not called that) covering as close as it can get to all goods/services in the class.  
• The pre-approved and classified list and the class scope wordings will not be exhaustive, so new or newly encountered goods/services can be included in applications subject to official clarification under CTMIR Rule 2 and UK TMR Rule 8 etc. 
The further good news is the CP2 project team’s indication that OHIM will use a “means-what-it-says” approach, and that with a common practice based on these class scopes “OHIM will not give any special treatment anymore to the Nice class headings”. 
One final point is on concerns that we may be heading for a requirement to use only pre-approved terms in applications. OHIM has though been at pains when asked that that will not be the case, ie that the use of pre-approved goods/services will not be a requirement for getting a valid filing date. That seems important in a world of fast changing commercialities and technology".
This, Richard adds, is the end on this short series on issues which may need attention following the Court’s IP TRANSLATOR judgment.  He hopes that this series will trigger more debate and thoughts on the legal and practical shapes the EU trade mark law and practice may take in the very near future.

The IPKat is disappointed that there has been so little debate so far on the content of Richard's two earlier posts and hopes this is only because readers were awaiting his final words before deciding what to say.

Tim Berners Lee on web privacy

Last week this Kat unfortunately learnt that the combination of English rainy weather, wet railway station floors and someone else running the other way in an almighty hurry cannot end well.  Although she has badly sprained her hind paw and is spending time in her Kat Basket whilst the Technicolor swelling goes down, she has finally had the opportunity to listen to the Guardian interviews with Tim Berners-Lee (no relation) as part of its Battle for the Internet series.

TBL told his audience that the thing which keeps him 'up most at night at the moment' is the legislative proposals being put forward by governments to 'try to give them too much control over and spying on the internet'. He explains: 'The amount of control you have over somebody if you can monitor their internet activity is amazing'. This because you get to know 'more intimate details of their life' than any person whom they talk to as they 'confide in the internet' when they click their way through different websites.

 TBL provides the following as examples: someone 'finding their way through the medical websites to find out about cancer or what a lump could be, or an adolescent finding their way through a website about homosexuality when they are wondering what they are and talk to people about it'. Accordingly, for TBL, 'sometimes the internet gets this view of somebody’s life which is incredibly intimate and therefore its abuse is potentially incredibly powerful'. One this basis, the idea that governments 'should routinely record information about people is obviously very dangerous' because such information can be stolen or acquired by corrupt officials which could be used to blackmail others. In TBL's opinion 'if the government feels that it is really necessary to acquire any information about individuals then ... there should be a very strong independent body which has complete oversight and can check for each situation where the government has decided to spy on people'.

It is not surprising then that TBL was critical of the proposed Cyber Intelligence Sharing and Protection Act (CISPA) in the United States. He said that contrary to the above warning, this proposed law is 'threatening with rights of people in America and effectively rights everywhere because what happens in America seems to affect people all over the world'. For TBL, after the proposed Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA) were 'stopped by huge public outcry', it was 'staggering how quickly the US government has come back with a new different threat to the rights of its citizens' in the form of CISPA. Accordingly, TBL felt that 'the most important thing to do stop the bill as it is at the moment'.

The IPKat thinks the whole thing is quite funny: anyone tracking him as he clicks his way around the internet over the years would have built up a profile of a brand-conscious beer-drinking chocolate eater with a passion for patents and polar bear cubs and a love of legal conferences and seminars-- but probably wouldn't know that he was a fictional cat.

Merpel notes that similar legislation was rumoured to be proposed in England and asks: what do you think?

Standards and Patents in ICT -- or snooker for cats?

If you don't want to be snookered
by patents and standards  ...
Are you up to your neck in the Information and Communication Technology (ICT) sector -- or would you like to be? And do you have a passion for patents and an abiding interest in those funny things that their owners do with them when they want to capitalise on the power of their own patents while simultaneously not being snookered by the patents of their competitors? And do you wonder whether the patent system can actually deliver good value to consumers who couldn't care anything about patents at all but do want phones that they can use cheaply and easily, whether they're calling landlines, mobile networks, sending text messages, testing out the latest apps or downloading an increasingly impressive ringtone?  Do you marvel at the point of intersection between (i) patent law, which creates monopoly rights, (ii) standard-setting arrangements that seek to share them and (iii) competition rules that seem to tie you up in knots if either (i) or (ii) seem to be working?  If so ...

... on 12 June 2012, the Second Annual LexisNexis Butterworths Standards and Patents in ICT conference will be held in London, the City of Olympic Dreams [says the IPKat] and Public Transport Nightmares [says a naughtily cynical Merpel]. As one might expect from a LexisNexis Butterworths event, there's a strong cast of speakers: contributions from David Barron, Richard Vary, Jane Mutimear, Daniel Hermele, Claudia Tapia Garcia, Oliver Jan Jüngst, Jenni Lukander and C Gregory Gramenopoulos guarantee that you'll have inputs from
... take a cue from
some notable experts
  • private practice in the UK
  • private practice in the USA
  • A surprise contributor from the European Commission
  • Nokia, Qualcomm and RIM
  • people who litigate patents and standards
  • people who believe in FRAND licensing
  • people with interesting surnames
Although they have not yet gone so far as to seek charitable status, the organisers have shown a most welcome streak of generosity to this weblog's indigent readers and have kindly agreed to offer the IPKat's friends and followers a most welcome  20% discount off the regular registration fee of £599. The programme can be perused in its fullness here.  If you want to claim your IPKat reader 20% discount, contact the organisers at and quote the word "IPKat".

Katpic above: The Cat Gallery

Sunday, 29 April 2012

Why Do People Sublicense: Let Me Count the Ways

This Kat will begin with a one-sentence muse. The ultimate challenge in writing about IP is

trying to say something categorically meaningful about how IP plays itself out in that most elusive of places, "the real world." This has once again become acute as this Kat works on an article on one of his IP fascinations--sublicensing. In particular, we have been wrestling with the question of "why do people engage in sublicensing"? We can discourse about how to define sublicensing, what is its legal rationale and what are its most distinctive contractual elements. But all of these considerations rest on the fact, as this Kat's anecdotal experience confirms, that the sublicensing of IP rights is a wide-spread phenomenon. If so, how can this Kat get its "IP paws" around that most simple of questions--"why do people engage in sublicensing"?. As with so many deceptively simple questions, the answer is both multi-layered and multi-faceted. Set out below is our first feline stab at offering an answer.

1.The licensor and licensee may be seeking additional revenues for exploitation of the licensed intellectual property rights. What better way to do so than to share in sublicence royalties.

 2. The exclusive licensee may not be easily able to meet its minimum royalty payments, but sums reasonably received from the sublicensee will likely enable the licensee to do so. (Separately, of course, the question then remains--What is meant by an "exclusive licence" when the exclusive license grants a sublicence?) 

3. In a version of the foregoing, the licensor may from the outset set a high minimum royalty payment for the licensee, secure in his belief that the licensor will be able to identify and manage a successful sublicensee in the territory.

4. By providing for a sublicence, the sublicensee may seek to fulfill market demand that
the licensee is itself unable to satisfy on its own.

5. The sublicense may be necessary to meet customers’ requirements for second sourcing of a product manufactured under the IP right. Here, the impetus comes from the downstream actor, namely the ultimate customer, concerned to protect a reliable supply of the licensed product.

6. The licensor may not itself exploit the IP rights or arrange for exploitation by third parties on a contract manufacturing basis. Instead, all exploitation will take place by the sublicensee under the supervision of the licensee.

7. In a specific instance of the foregoing, the structure of the commercial relationship with the licensor may be such that it is intended that only the sublicensee(s) are intended to exploit the IP. This is especially so in franchise arrangements, where the franchise is often structured to provide for a master franchisee in the territory, which does not directly operate any licensed units, but rather manages a chain of franchisees/sublicensees.

8. The grant of a sublicence may be required to resolve a legal challenge to either the licensor or licensee, such as where there is a competition law concern that the licensee enjoys a dominant position. The presence of a sublicensee may allay this concern, provided that the sublicence is made between unrelated parties.

This is this Kat's initial list. Has he missed anything obvious? To remind you--the task is to create a comprehensive list for that most challenging of questions--"why do people enter into a sublicensing arrangement."

Friday, 27 April 2012

Four pages good, two pages better

The EPO’s Boards of Appeal routinely issue minutes of oral proceedings which reveal almost nothing about what has taken place over perhaps the most important five or six hours of a patent’s life. 

In contrast, if you attend oral proceedings before a first instance division (e.g. examination or opposition), the official set of minutes you receive should, in theory at least, be reasonably explicit in outlining the discussion which took place and the major points made by each party. (The IPKat leaves it his readers to comment on whether they believe the practice matches the theory.) The official policy at least, which most divisions abide by, is that the first instance divisions should keep detailed minutes. The official policy of the Boards themselves is that they need not.

The letter and the spirit of Rule 124

Perhaps the IPKat is being unfair to the Boards? Well, compare the wording of Rule 124(1) with the formulaic wording which is used by most Boards, on most occasions, to summarise discussions lasting several hours.

Rule 124(1) -- which is equally binding on the Boards and the first instance divisions -- says:
Minutes of oral proceedings and of the taking of evidence shall be drawn up containing the essentials of the oral proceedings or of the taking of evidence, the relevant statements made by the parties, the testimony of the parties, witnesses or experts and the result of any inspection.
Is this reflected in the standard account appearing in the majority of Board of Appeal minutes?
The Chairman declared the oral proceedings open. He summarised the relevant facts as appearing from the file. The parties addressed the Board. The matter was then discussed with the parties. The Chairman then declared the debate closed. The Chairman announced the decision: the appeal is dismissed in its entirety.
In addition, the minutes will detail who attended, whether they identified themselves with a passport or EPO ID card (yes, really), the start and finish times, a formal listing of the requests or claims in play, and statements like "the patentee maintained its main request".

Nobody said anything relevant, clearly
But if you cannot tell from the minutes of a patent hearing whether the appeal was about lack of inventive step or non-compliant drawings, then there has to be serious doubt that the legislators had such a document in mind when they said that the minutes must capture "the essentials of the oral proceedings [and] the relevant statements made by the parties".

The official line, naturally, is that these minutes do capture the “essentials” and the “relevant statements”. But those phrases are interpreted in the most restrictive way. For example, a “relevant statement” would be a patentee saying that it wished to abandon a set of claims, but would not include a submission alleging that the opponent had forged a document’s date.

EPO case law justifying the difference

In the case law of the Boards, the IPKat has found two rather different justifications for this difference in first instance practice and that of the Boards of Appeal. Case T966/99 held that:
Considering that the decisions of the Boards of Appeal are not subject to revision … whilst the decisions of the departments of first instance … are open to appeal, it is clear that what constitutes the ‘essentials’ and the ‘relevant statements’ of the oral proceedings before the Board of Appeal needs not be noted down as extensively as the ‘essentials’ and the ‘relevant statements’ of the oral proceedings before the departments of first instance.”
This justification was never particularly convincing. Rule 124 (and its predecessor, Rule 76) never gave any indication that relevant statements need not be noted down as extensively in one set of minutes compared to another, or that the character of the minutes was different depending on whether or not an appeal was available against the associated decision. Most of all, nothing in the Rule suggested that the nature of a “relevant statement” depended on whom it was uttered in front of.

In any event, the T966/99 rationale, based as it was on the inherent unappealability of Board decisions, lost any validity when the EPC was revised to allow for review of Board decisions by the Enlarged Board. The winds of change were blowing in this regard when decision T263/05 issued. 

The Board in T263/05, while citing T966/99 for other purposes, ignored entirely the point about no appeal being available from Board decisions, aware as it must have been that this was all about to change months later. Instead the Board gave a brand-new justification for the difference in practice between first instance and appeal minutes:
The reason for this [difference in practice] is primarily that decisions of the Boards of Appeal are intended to be self-contained, that is, they are intended to be capable of being understood by the parties and the public without reference to other documents. The decision will therefore provide a summary of all the arguments of the parties, both during the written phase of the proceedings and during the oral proceedings themselves. In contrast, decisions of the Examination/Opposition Divisions will often contain references to the minutes or other documents on file, which need to be referred to in order to fully understand the decision.
This is presented almost as a public service, i.e. by keeping arguments out of the minutes, the decision becomes more easily readable. But again there’s nothing in Rule 124 to support this practice and policy. Would it not be possible to fulfil both the letter and spirit of Rule 124 by writing complete minutes, and then if necessary cutting and pasting (or providing a synopsis of) those crucial points that were required for the decision to be self-contained? 

Why does this all matter?  

If the minutes reveal nothing about what went on during a five-hour hearing, but the decision is self-contained, what harm is done? Well it sometimes does matter. If a practice was ingrained in the EPO that the minutes captured the flow of the discussion and at least the essence of each major point argued, then there would be a higher probability of having a reliable record for the Enlarged Board when deciding if there had been a procedural violation. The Boards themselves do like to have such a record from lower instances to assist them in their reviews of first instance cases.

In one of the rare instances where the Enlarged Board overturned a Board of Appeal decision, reported here, the petitioner was saved only because the evidentiary weight of affidavits from five individuals present on the day, each recounting the exact words of the Chairman of the Board of Appeal, was accepted over the version of proceedings recounted in the minutes and recorded in the Board decision.

Time to allow recordings?

This Kat believes it would be better for all concerned, however, for there to be a transcript or even a plain audio recording of the proceedings. The EPO does not offer this service, and woe betide the representative who brings in and activates a recording device (such as the now ubiquitous smartphone). While the EPC and its Rules are neutral about the question of recording oral proceedings, and it's not clear what penalty could be meted out to someone who did record the goings-on at oral proceedings, the EPO issued the following notice way back in 1986:
In order to avoid misunderstandings, parties to oral proceedings and their representatives are hereby informed that the following rule will in future apply.
At oral proceedings under Article 116 EPC, whether before an Examining Division, an Opposition Division or a Board of Appeal, no person other than an EPO employee is allowed to introduce any kind of sound recording device into the hearing room. Such a rule is in accordance with the general practice in the Member States of the European Patent Organisation.
(Incidentally, appealing vaguely to “general practice in the Member States” was also the rationale given for the ban on double patenting in overlapping divisionals, though several Boards have since cast doubt that such a general practice in fact ever existed, or that it was a valid reason for the EPO to adopt such a practice in its Guidelines.)

That aside, most comparable tribunals at national level, i.e. the courts who have the final say on validity, do allow for either recording or the issuing of transcripts. Has the time arrived when the EPO should consider allowing an official recording to be released or (perhaps for a fee) transcribed? The technology would cost very little. Would this not "raise the bar" at the EPO's end of the pitch, in terms of providing a more transparent process for arriving at decisions of great importance to inventors, applicants and opponents? L:et us know what you think.

IPAN Celebrates World IP Day 2012 at the House of Commons

Readers of the IPKat will by now doubtless be aware that yesterday was World IP Day. The Intellectual Property Awareness Network (IPAN) celebrated the day with an event at the Terrace Pavilion in the Palace of Westminster, by kind invitation of Pete Wishart MP.  The IPKat Blogmeister was on his way to Riga, so this guest Kat went in his stead to the event to give a report to our dear readers.

This Kat attempted for the first time live tweeting from the event. Readers can imagine the comedy scene of fluffy paws trying to operate a smartphone (of an un-named brand), and may amuse themselves perusing the results @EIP_Elements.

A more conventional report of the event follows here.

Peter Prowse, the Chair of IPAN, opened with comments reflecting on the longevity of brands for beer – not just the Bass label that is Registered Trade Mark No 1 in the UK, but also Stella Artois and Lowenbrau, which are very much older.  Cribbing from the press release, the IPKat can quote him saying: “We live in a knowledge-based economy. However, to profit from the fruits of their knowledge, individuals, businesses and investors need to be clear about their ownership and the creativity that they develop from it.  Without a clear intellectual property framework, nobody can profit from their ideas and the UK economy will stall.”

Pete Wishart MP
Pete Wishart MP, our host, was revealed to be the first MP to have appeared on Top of the Pops. He welcomed IPAN and WIPO to the House of Commons on a day which was about celebrating creativity. He encouraged us that Parliament getting more interested in IP, and, indeed, some other MPs were observed in the audience of the event.

Baroness Wilcox, our Minister for IP, was the next speaker.  Apparently the UK is the only country to have a Minister whose sole responsibility for IP.  Baroness Wilcox is the fourth incumbent of this position and the longest serving to date.

She asked what is being done for SMEs, and about the fact that patent offices are struggling to keep up with demand. She highlighted  PPH and PCT as two examples of patent office cooperation to help address the backlog.

Baroness Wilcox
She assured us of the support that the Government has pledged for the unitary patent and single European court for patent litigation - we are nearly there after almost 41 years! She reminded us that court location important. (Many of us hope that this means that the Government is still campaigning hard for the seat of the central division to be London).  Even more importantly, Baroness Wilcox stressed that the rules of the European patent court have to be correct and assured us that the Government is committed not to sign any agreement until correct rules are in place.

The Minister recalled the finding of Prof Hargreaves that lack of good advice and high cost are problems for SMEs, and also referred to Digital Copyright Exchange (DCE) (See later talk from Richard Hooper).

Baroness Wilcox recalled that the recent budget had introduced the Patent Box from 2013 - lower company corporation tax levels for profits relating to patented products and processes.

Finally, the Minister mentioned another example of international IP cooperation – IP attaches attached to embassies. The first one is already in Beijing and India will be announced soon. Then Brazil, and then in the far east, maybe Singapore.

Up next was Emma Wild from CBI on the business perspective on IP.  She stated that the UK IP regime is respected around the world, and reminded us that many UK industries rely on patents, copyright, and trade marks to protect their designs and creativity.  She considered that the Government needs to be a champion for IP and IP rich industries, and advocated collaboration with industry to protect business models which rely on IP.  In particular, she spoke against expansion of copyright exceptions that would undermine these business models.

Dr Guriqbal Singh Jaiya
Dr Guriqbal Singh Jaiya from WIPO was the next speaker, who had come all the way from Geneva to be with us. Director of SME division until December 2011.  He considered that a major challenge of IP is that it is seen as esoteric subject that is the exclusive province of small group of IP lawyers.  He also saw the balance of IP as being multifaceted with many stakeholders, and asked how the benefits of creativity should be allocated.  He referred to a number of recent high profile deals involving IP where patent portfolios have changed hands for very high sums, thus showing the potential high value that can be attached to intangibles.  The question then, however, he considered, is how that high value should be distributed among stakeholders.

Dr Jaiya informed us that at WIPO on World IP Day the late Steve Jobs of Apple was being honoured, so it seemed quite apt that in the UK IPO poll Sir Jonathan Ive - Senior Vice President of Industrial Design at Apple Inc. had been voted Favourite British Visionary Innovator 2012.

Dr Jaiya stated that the challenge of raising awareness even more important than unification of patent system, and he praised in particular Korea and China for their efforts in raising IP awareness. In China apparently there are IP offices all round the country in all major cities.

Dr Jaiya considered that in WIPO divergent interests come together, and noted that now, through TRIPS, IP has also spilled over from WIPO to the WTO.

Richard Hooper from the IPO spoke next on his Digital Copyright Exchange feasibility study.  You can see his Phase 1 report here.  Phase 2 of his work is seeking solutions to the issues that he has identified.

It is recognised that all industry sectors have a need for better data to identify copyright work and its many variants; to identify who owns what rights; and to ensure accurate and timely payments to creators/rights holders.  The idea is that a DCE would provide an automated copyright licensing system which could mitigate the complexity of current licensing systems and collecting societies to address this need.  However, in order to achieve this, it would need to be:

  • Able to handle high volumes of low value copyright licensing transactions at low cost
  • Easy to access and to use
  • Linked to a well signposted, easy to navigate copyright hub
  • Interoperable

The interoperability and compatibility issue is key, and a major obstacle is the lack of a common language and agreed operational standards for expressing, identifying and communicating rights information both across industry sectors and across national borders.

Other issues that Richard Hooper mentioned are:

  • Dealing with orphan works, and how to achieve mass digitisation.
  • Specific issues of complexity and expense in relation to educational institutions and in relation to the music industry.
  • The “repertoire imbalance” – the fact that some works are available only in pirated form and licensed versions do exist.

The last speaker was Dids Macdonald of IPAN.  She told us about the work of IPAN.  It is not a lobbying organisation although some of its member organisations are.  It publishes in its website issue briefs on a number of IP related issues.  As its name suggests it seeks to raise awareness of IP.

An interesting point that she raised was that, although intangible assets are widely held to be important (as Dr Jaiya had also said), it is difficult to raise finance on the basis of intangibles.

Final words go to Peter Prowse:
“All Parliamentarians have an interest in the economic prosperity of this country so they should all be familiar with the issues around intellectual property. We need effective IP regulations appropriate for an increasingly knowledge based economy, to help drive the UK recovery forward.”

The IPKat has long wearily despaired that it is not apparently possible even today to read a news item relating to intellectual property in which the words “copyright”, “patent” and “trade mark” are used with their correct meaning.  Dr Jaiya’s comments about IP being seen as an esoteric subject that is the exclusive domain of a small number of specialist practitioners therefore seem especially apt.  Regardless of our individual affiliations, therefore, it is for all of us to play some part in raising the awareness of IP.  This Kat therefore felt very privileged to be present yesterday and thanks all who worked so hard on making the event possible.

Thursday, 26 April 2012

A little ephemera for World IP Day

What better way to celebrate World IP Day can there be than to report on the latest intellectual property ruling of the Court of Justice of the European Union in Case C‑510/10 DR, TV2 Danmark A/S v NCB - Nordisk Copyright Bureau, a reference for a preliminary ruling from the Østre Landsret (Denmark)?

DR was a public radio and television broadcasting organisation which was required to provide public service programming as an independent public institution financed by the audiovisual licence fee, and TV2 Danmark was a commercial public television broadcasting organisation, financed by advertising, which was also required to provide public service programming. Their programmes were either produced internally or created by third parties under specific agreements with a view to being broadcast for the first time by DR or TV2 Danmark. NCB administered the rights to record and copy music for composers, songwriters and music publishers in a number of Nordic and Baltic States.

What the parties wanted to know was whether the exception for ephemeral recordings under copyright law also covered recordings made by legally independent external television production companies where those recordings were commissioned from them by DR or by TV2 Danmark for initial broadcast on DR or TV2 Danmark. According to DR and TV2 Danmark, it was irrelevant to copyright holders whether recordings for purposes of transmission were made by the staff of thea broadcasting organisation itself with its own equipment, or by an employee of a third company from which the broadcasting organisation commissioned the production, with that third company’s equipment. They also argued that there was no condition in Paragraph 31 of the Danish Law on Copyright to require broadcasting organisations to make recordings ‘by means of their own facilities’. Thus, under Danish law, it didn' tmatter,  for the application of the exception concerning recordings for the purpose of transmission, whether those recordings were made by employees of the broadcasting organisation or by employees of third parties. NCB however argued that European Union law imposed a condition relating to production ‘by means of their own facilities’, this condition being applicable under the Danish Law on Copyright. The Østre Landsret (Eastern Regional Court) decided at this point that it was better to refer the following questions to the Court of Justice for a preliminary ruling than to become increasingly baffled by these arguments. Accordingly it asked::
‘1. Should the terms “by means of their own facilities” in Article 5(2)(d) of [Directive 2001/29 -- the InfoSoc Directive] and “on behalf of and under the responsibility of the broadcasting organisation” in recital 41 in the preamble to that directive be interpreted with reference to national law or to European Union law? 
2. Should it be assumed that the wording of Article 5(2)(d) of [Directive 2001/29], as in the Danish, English and French versions of that provision, is to mean “on behalf of and under the responsibility of the broadcasting organisation” or, as in the German version, is to mean “on behalf of or under the responsibility of the broadcasting organisation”? 
3. On the assumption that the terms cited in Question 1 are to be interpreted with reference to European Union law, the following question is asked: What criteria should national courts apply to a specific assessment as to whether a recording made by a third party (the “Producer”) for use in a broadcasting organisation’s transmissions was made “by means of their own facilities”, and “on behalf of [and/or] under the responsibility of the broadcasting organisation”, such that the recording is covered by the exception laid down in Article 5(2)(d) of [Directive 2001/29]?  
In connection with the answer to Question 3, answers are sought in particular to the following questions: 
(a) Should the concept of “own facilities” in Article 5(2)(d) of [Directive 2001/29] be understood to mean that a recording made by the Producer for use in a broadcasting organisation’s transmissions is covered by the exception laid down in Article 5(2)(d) only if the broadcasting organisation is liable towards third parties for the Producer’s acts and omissions in relation to the recording, as if the broadcasting organisation had itself carried out those acts and omissions? 
(b) Is the condition that the recording must be made “on behalf of [and/or] under the responsibility of the broadcasting organisation” satisfied where a broadcasting organisation has commissioned the Producer to make the recording in order that that broadcasting organisation can transmit the recording in question, and on the assumption that the broadcasting organisation concerned has the right to transmit the recording in question? 
The Østre Landsret seeks to ascertain whether the following situations may or must be taken into consideration for the purpose of answering Question 3(b), and if so, what weight should be given to them: 
i. Whether it is the broadcasting organisation or the Producer which has the final and conclusive artistic/editorial decision on the content of the commissioned programme under agreements between those parties;  
ii. Whether the broadcasting organisation is liable towards third parties in respect of the Producer’s obligations in relation to the recording, as if the broadcasting organisation itself had carried out those acts and omissions;  
iii. Whether the Producer is contractually obliged by the agreement with the broadcasting organisation to deliver the programme in question to the broadcasting organisation for a specified price and has to meet, out of this price, all expenses that may be associated with the recording; 
iv. Whether it is the broadcasting organisation or the Producer which assumes liability for the recording in question vis-à-vis third parties. 
(c) Is the condition that the recording must be made “on behalf of [and/or] under the responsibility of the broadcasting organisation” satisfied in the case where a broadcasting organisation has commissioned the Producer to make the recording in order for the broadcasting organisation to be able to transmit the recording in question, and on the assumption that the broadcasting organisation in question has the right to transmit the recording, where the Producer, in the agreement with the broadcasting organisation relating to the recording, has assumed the financial and legal responsibility for 
(i) meeting all the expenses associated with the recording in return for payment of an amount fixed in advance; 
(ii) the purchase of rights; and 
(iii) unforeseen circumstances, including any delay in the recording and breach of contract, but without the broadcasting organisation being liable towards third parties in respect of the Producer’s obligations in relation to the recording as if the broadcasting organisation had itself carried out those acts and omissions?’
If you're not lost by now, you jolly well ought to be.  The Court of Justice might have been a bit baffled too, but it ruled today as follows:
"1. The expression ‘by means of their own facilities’ in Article 5(2)(d) of Directive 2001/29 ,,, must be given an independent and uniform interpretation within the framework of European Union law. 
2. Article 5(2)(d) of Directive 2001/29, read in the light of recital 41 in the preamble to that directive, must be interpreted as meaning that a broadcasting organisation’s own facilities include the facilities of any third party acting on behalf of or under the responsibility of that organisation. 
3. For the purposes of ascertaining whether a recording made by a broadcasting organisation, for its own broadcasts, with the facilities of a third party, is covered by the exception laid down in Article 5(2)(d) of Directive 2001/29 in respect of ephemeral recordings, it is for the national court to assess whether, in the circumstances of the dispute in the main proceedings, that party may be regarded as acting specifically ‘on behalf of’ the broadcasting organisation or, at the very least, ‘under the responsibility’ of that organisation. As regards whether that party may be regarded as acting ‘under the responsibility’ of the broadcasting organisation, it is essential that, vis-à-vis other persons, among others the authors who may be harmed by an unlawful recording of their works, the broadcasting organisation is required to pay compensation for any adverse effects of the acts and omissions of the third party, such as a legally independent external television production company, connected with the recording in question, as if the broadcasting organisation had itself carried out those acts and made those omissions".
The IPKat was hoping that this might have been one of those cases the importance of which was summarised in a Curia press release. As it is, the hour is late and the Kat has little to say, other than that the words “by means of their own facilities” appear to have been interpreted broadly and in terms that reflect commercial reality -- a mode of interpretation that national courts may wish to consider carefully when deciding how to determine the parameters of copyright.

Ive received most votes as "visionary innovator"

Jonathan Ive, that is. In a vote to find the "Favourite British Visionary Innovator 2012", he received
nearly half of all votes cast in a field of ten nominees.

Sir Jonathan Ive, KBE
Senior VP of Industrial Design with Apple, Inc.

If you don't know who Sir Jonathan Ive, KBE is or what he has done that is so innovative, you will certainly know him by his works: he is the leading designer and conceptual mind behind the iMac, titanium and aluminum PowerBook G4, Power Mac G4, Power Mac G5, G4 Cube, iBook, Mac Pro, MacBook, unibody MacBook Pro, MacBook Air, iPod, iPod touch, iPhone, and iPad. As you may by now have gathered, he works for Apple as an industrial designer.

The IPKat heartily congratulates Mr Ive on his recognition in this poll, which was run by the UKIPO to celebrate World IP Day. 

Not wishing for a moment to detract from this vote, the IPKat confesses that he is a little startled by the scale of that victory, given the other illustrious names in the poll (see the bar chart at the end showing the breakdown of the vote). However, Apple is a company which is conspicuous by the devotion, loyalty and love that it instills in those who are won over to its products, often referred to, in less than complimentary fashion, as fanboys, and it is possible that such devotees have a greater tendency to vote than (say) those with a penchant for the architecture of Sir Norman Foster. And indeed even to those who are not fanboys, the design of Apple's product range shows a devotion to aesthetics and industrial design which has been leagues ahead of the chasing pack. While Steve Jobs may have instilled this ethos in Apple, Jony Ive is the person whose work captured that ethos. 

Those of us who practice in that neglected corner of IP which is concerned with protecting design rights will be thrilled that industrial design is front and centre on World IP Day.

Wednesday, 25 April 2012

Wednesday Whimsies II

Feline fascination with human folly is endless. People do such silly things. They push at doors which have "pull" signs on them, they chop meat up into tiny pieces and then stick it together again and call it a burger, and they have even been known to break into prisons in order to carry out robberies. Latest in line in this list is the opening of a fake Primark store in Dubai (here and here). For those not familiar with the concept, Primark is a super-cheapo retail chain, the sort of place you go to if you prefer to buy new clothes instead of washing your old ones but don't want to spend too much. Why Dubai -- one of the world's most affluent places -- was chosen for this exercise is a complete puzzle to this Kat. Surely, if you're going to fake an entire store, you'd be better advised to trespass on an upmarket brand and make sure that your per-item proft margin reflects the value of the counterfeit brand you've copied.

The European Patent Office (EPO) can't be faulted for its efforts to find points of common interest with leading entities in the private sector. Only recently the Office teamed up with Google to solve the continent's translation problems.  Now it is hand-and-hand with Logica, with which it seeks to introduce a "world leading patent management system".  According to the press release
"The EPO and Logica have announced an important project that will contribute to significantly reducing costs and improving timeliness for the patenting process in Europe. Logica and the EPO are set to introduce one of the most advanced, fully digital patent offices in the world, enabling applicants and inventors to register their patents and all concerned in processing them in a more efficient and cost effective way. Under the agreement Logica will help the EPO establish a comprehensive, secure and innovative case management system, that will digitally process patent applications at all stages of the patent grant process including: • Patent searching • Filing the application with the Office • Publication • Substantive examination • The handling of legal remedies, such as opposition and appeal". 
Says Merpel, what's the betting that the EPO's next venture will be with Amazon, establishing the world's first one-click patent filing system.  Can readers think of any others?

It is with great sadness that the IPKat records the passing of one of his first readers -- Guy Selby-Lowndes -- who died earlier this month at the ripe old age of 83.  Guy, a patent attorney, was a regular feature at IPKat, 1709 Blog, IP Finance and other blog seminars, at which speakers and registrants alike were often treated to the benefit of his sage but gentle counsel. While in practice with Kodak back in the early days of the Patents Act 1977, he offered this Kat a good deal of encouragement and support, which was welcomed then and warmly recalled now.  Friends will know him as a man whose boundless curiosity and analytical powers made him an ideal person with whom to share a conversation on any subject. A great animal-lover, he is pictured here with his cat, Olly, who sadly survived him by only a few days.  There will be a memorial service at Holy Trinity, Bramley (in Surrey, his village of birth) on Monday 14 May 2012 at 2.30pm. 

Continuing on a sombre note, the Kat has further news concerning the unexpected recent passing of Professor John Adams (see earlier note here). The funeral will take place this Friday, 27 April, starting at 1.30 pm at the Rutland Hotel, 452 Glossop Road, Sheffield, moving to Crookes Cemetery
at 2.30 pm for the burial -- then afterwards, as John would have liked. back to the Rutland Hotel for refreshments.  If you are intending to come for the refreshments, please email David Grey here and let him know, so he can get a rough idea of numbers. If you want to mark John's life with a suitable gesture of affection or respect, please make a donation, payable to the British Heart Foundation, and send it, marked "In memory of John Adams", to Wood Funeral Service, 848 Ecclesall Road, Sheffield S11 8TP.  The Kat understands that plans are underway for a memorial gathering for John, to be held in London on Saturday 16 June, probably at lunchtime.  Further details are awaited.

Madrid Highlights.  The World Intellectual Property Organization (WIPO) has been busy producing a new publication dedicated to international trade mark filing: Madrid Highlights. This, WIPO explains, is
" ... a quarterly publication focusing on keeping Madrid system’s stakeholders up to date with the latest developments within the Madrid system and providing information on the activities of the Sector. The Madrid Highlights also offers to subscribers the opportunity to raise issues and concerns and to seek responses from our in-house experts. Contributions and content in the Madrid Highlights are published in the English language only". 
You can subscribe to the new journal here (it's free) and download the first issue here. This looks like a good initiative, but Merpel is most perplexed.  The cover story is all about how the Madrid and Lisbon registries have relocated to a smart new administrative building, "which looks onto Geneva’s Place des Nations and is the work of the award-winning Behnisch Architekten, Stuttgart, Germany" -- she doesn't imagine that many readers are even remotely interested in this piece of information, since they don't have to go to Geneva in person and find the front door in order to make a Madrid filing.  Even more curiously, according to the contents, "Useful Information" doesn't start till page 6.  Notwithstanding these minor blemishes, WIPO deserves a qualified katpat for this initiative. If you want to encourage the organisation to do more, or just want to share your constructive thoughts with it, be assured that feedback is welcome.

Trial and error -- or Trier and ERA? The Kats' friends Arnaud Folliard-Monguiral (OHIM) and Simon Malynicz (3 New Square) are both among those speaking at a two-day event which has been organised by the Academy for European Law (ERA) for 31 May and 1 June in Trier on "Litigating Before the ECJ in Intellectual Property Cases (details here). The programme seeks to cover everything from how to draft and file appeals, the formalities, regularising the appeal, how to do hearings and how to keep yourself amused in Luxembourg. The programme even includes tips from translators on how to make your written and oral advocacy compelling [Merpel would like it if the judges went on a programme to make their judgments more compelling ...]. This looks like great stuff and this Kat hopes that practitioners will avail themselves of this wonderful opportunity.

Some stories are so good that there's no point trying to improve them.  A big katpat goes to Oliver Herzfeld for this link to "The Trademarked Beard", written by Masha Gessen and hosted on Latitude. The beard in question belongs to one V. I. Pugach whose mugshot (or should that be Pugshot) appears  on the right. Says Gessen,
"Pugach's Web site ... points to documents from the Russian trademark office suggesting that he have managed to make this beard his own and that anyone who wants to wear the thing has to get a license from him. That costs about $600 a year for most individuals but roughly $30,000 for popular actors and $4 million for television channels". 
As for the rest of this tale, we leave it to you to read and enjoy ...

Wednesday whimsies I

Mind your Ps and Qs! Via a tweet from Mitt Putk comes news of "The Impact of Spelling Errors on Patent Search", a paper by Benno Stein and Dennis Hoppe and Tim Gollub (Bauhaus-Universität Weimar, Germany).  According to the abstract:
"The search in patent databases is a risky business compared to the search in other domains. A single document that is relevant but overlooked during a patent search can turn into an expensive proposition. While recent research engages in specialized models and algorithms to improve the effectiveness of patent retrieval, we bring another aspect into focus: the detection and exploitation of patent inconsistencies. In particular, we analyze spelling errors in the assignee field of patents granted by the United States Patent & Trademark Office. We introduce technology in order to improve retrieval effectiveness despite the presence of typographical ambiguities. In this regard, we (1) quantify spelling errors in terms of edit distance and phonological dissimilarity and (2) render error detection as a learning problem that combines word dissimilarities with patent meta-features. For the task of finding all patents of a company, our approach improves recall from 96.7% (when using a state-of-the-art patent search engine) to 99.5%, while precision is compromised by only 3.7%".
Given his affection for proper spelling, the IPKat just couldn't resist it! He would however remind readers that not all variations in spelling are the result of error: vitamin/vitamine and adrenalin/adrenaline  are just two examples of national preference.

"The YouTube case (see earlier Katposts here and here) is just the tip of the iceberg and shows that collecting societies are not performing to the extent possible", says the IPKat's friend and scholar Dr Roya Ghafele who, in this context, drews his attention to "Counting the Costs of Collective Rights Management of Music Copyright in Europe". This is a study by Roya together with Benjamin Gilbert. According to the abstract:
Copyright collecting: like this?
"The identification and clearance of music copyright is a complex process that suffers from high transaction costs when managed by individual rightsholders. The pooling of music copyright in collective rights management organizations has historically reduced these costs, while providing a larger, and thus more attractive, repertoire to commercial users via the issuance of blanket licences. However, the development of digital distribution channels and automated clearance technologies for music copyright across multiple borders presents a number of challenges to the current system. As music consumption increasingly takes digital forms, Europe must modernize its collective rights management system in response.
The results of this study show there is a very large market for digital music in Europe. As broadband penetration increases and competition amongst Internet Service Providers (ISPs) in Europe enhances access to the Internet, this market will grow rapidly. The market is valued at over 2.6 billion Euro in France, Germany and the UK alone. This constitutes a potential royalty market of 212 million Euro. Yet, only 49 million Euro in royalty revenue from online sources was collected by SACEM, GEMA and PRS for Music. Moreover, the majority of this revenue was collected by PRS for Music in the UK, which is the smallest of the three markets but by far the most efficient CRMO for the collection of royalties from online sources. Other nations in Europe, though significantly smaller, still represent a valuable market opportunity. 
... or this?
The disparity between potential and actual revenue for all of the European markets suggests there are problems with the current collective rights management system. The percentage of the royalty market captured in the USA was over 4% more than the European average. New solutions should be sought to capitalize on the market opportunity of digital music services in light of increasing broadband penetration and changing consumer patterns in Europe. This should help unlock the potential of digital music markets, consolidate the single European market, increase competition in the administration of collective rights, and provide better services to European consumers".
Thanks, Roya: it's always good to have real statistics and analysis with which to bolster one's arguments.

Making the mouse disappear was Smokey's
best magic trick -- but he could never make
the mouse reappear ...
Around the weblogs.  The annual SPC Blog seminar is now taking bookings: it's fun, it's free and it's taking place on Tuesday 22 May in the lovely London offices of long-suffering Olswang LLP -- who must be thinking that their facilities have been principally designed for hosting blog seminars for the wider IP community. Details of the seminar can be found on The SPC Blog here.  Still on the subject of SPCs and patent term extension, there's a cogent note by Michel Giannino on the Italian competition authority's hard line on trying to use patent rights in order to extend protection to pharma products here on the jiplp weblog.  There may be magic in Eleonora Rosati's 1709 Blog posts, but is there copyight in magic, she asks. Click here to find out why she asks.  And for those who enjoy a really clever retort in the world of spoof ads, Darren Olivier's post for Afro-IP on the sweet little spat between Nando's and Santam takes some beating.

The Copyright Clearance Center has been busy again.  Its  newest “Beyond the Book” podcast features Billboard’s former executive editor Robert Levine. At the recent OnCopyright 2012 conference ("Advancing the Creative Economy"), Robert explained for the audience in a keynote speech how the commonly used language of copyright shapes the debate [this is a popular theme: this Kat remembers Bill Patry elaborating on it most entertainingly in his Stephen Stewart Lecture, "Metaphors and Moral Panics", here] and makes for confusion on the fundamentals. He details how the copyright debate should be treated as an economic and legal discussion, as opposed to a moral issue, and defines the role of the critical term "infringement" in the debate." You can access it by podcast and by transcript.

Superficial similarity.  The British Brands Group has been tireless in its efforts to raise public awareness of competing products with relatively or indeed highly similar get-up.  This exercise must be a worthwhile one, whether it leads to new legislation, to more self-control on the part of traders or merely to the IPKat managing not to put the wrong product into their supermarket basket [Merpel, who never admits to making mistakes, always maintains she meant to buy the look-alike product in the first place ...]. Anyway, all you have to do is click here, and you will be effortlessly transported to the bit of the BBG's website which hosts the latest batch of similars.  If readers have any favourite examples of their own, they should let John Noble know by emailing him here.

AmCham in Slovakia. The Kats have learned from their friend Zuzana Hecko (Allen & Overy) about an early World IP Day event held last week by the American Chamber of Commerce in Slovakia -- an IP-and-business seminar.  Says Zuzana:
"Even though the AmCham booked quite a large room, not one chair remained free. The conference was opened by Jake Slegers, the Executive Director of AmCham Slovakia, followed by a presentation from the European Commission (ACTA master Pedro Velasco), followed by a speech from Jaro Slávik (star of a popular Slovak TV show). Other speakers came from Allen & Overy, Microsoft, Nike, Samsung, O2, the head of the (newly-created) IP department of the Slovak customs and the Head of the Slovak IP office. The audience included rights holders, ISPs, lawyers, telcos, IT and software companies, cloud providers, FMCG, and banks. 
Jaro Slávik: plenty of talent around ...
The topics of the seminar were divided into four panels. The first focused on what intellectual property is. Not surprisingly, as Slovakia is a "home" for many cloud providers and IT companies, cloud computing provoked an interesting discussion. Another subject which caught the participants’ attention was plain packaging -- which was criticised by the majority of those present. The second panel dealt with the protection of IP on the internet, and focused on the responsibility of ISPs. The third focused on the protection of IP through customs measures. Not many people may be aware that in Slovakia, customs have a mandate to act not only at the borders, but also in the internal market (a special application for action is necessary) and that the chances of fakes being detained by the customs are much higher in the domestic market than on the border (last year there were 2520 detentions in the domestic market compared to a modest 142 cases on the border). The customs stated that cooperation with companies which apply zero tolerance is good, however it is problematic in those other cases where because of a lack of interest from the rights holder to take action, (fake) goods are returned to the holder. Slovak customs are currently also exploring whether the holder of the goods/declarant, besides the destruction of its goods in the simplified procedure, could also be fined. The fourth panel was devoted to trade mark protection in Slovakia (believe it or not, there are still many companies in Slovakia which have operated for years without any trade mark registrations). It is hoped that this seminar will have served as a wake-up call for companies who have not yet considered IP important enough to better protect their IP assets and move towards compliance".

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