Posts

Showing posts from December, 2005

Dispute Resolution: Judicial Humour from across the Pond

My email today brought New Year's greetings from India and Australia (which I warmly reciprocate and pass on) and a bulletin of today's stories in the New York Times.

There are three stories on the law though none on intellectual property and technology. One is about the death penalty in China which is harrowing. It is a useful reminder to those of us who were disappointed by the governor of California's failure to spare Mr Tookie Williams (after he had already served a term of imprisonment that most civilized countries would regard as sufficient punishment for the crimes of which he had been convicted) that there are some parts of the world that are a great deal more bloodthirsty than the USA. Another is about the welcome drop in crime in New York. But the most entertaining is an article by Adam Liptak "So, Guy Walks Up to the Bar, and Scalia Says..." on the number of jokes cracked over the years by the various judges of the US federal supreme court.

According to…

NIPC Radio: Thanks for the Suggestions

I have converted yesterday's WAV file into an MP3 file.

I should like to thank Matt and James for their helpful suggestions.

On listening to myself I noticed that I said that performances were protected by copyright. What I meant to say and should have said is by "rights in performances."

When I get to be familiar with the technology I will use a proper script.

Privacy: New Staff Monitoring Software

In 1999 I was asked to present a paper to the meeting of the Section of Business Law of the International Bar Association in Barcelona on misuse of internet access by employees. At the time there was a lot of concern about employer's potential liability for racist, sexist or otherwise offensive emails like the "Beer and Women" comparison as well as fear that the recently passed but not yet enacted Human Rights Act 1998 might prevent effective monitoring.

As we were negotiating what turned out to be a rather ill advised and very short-lived merger with a London common law set, I couldn't do it myself but I did write a paper for my pupil Joanne Gretton to present. The paper contained valuable contributions from Joanne and also from my wife, Yatoni, who then practised at the employment bar. At paragraph 4 we argued that an employee's implied duty of fidelity would preclude unauthorized use of the internet, that some reasonable monitoring of such access would not ne…

NIPC Radio: Programme No 2 - How the Law protects Investment in Brands

My second broadcastis up but I fear I have been far too ambitious. Instead of relying on the Windows "Sound Recorder" which I used yesterday for my Introduction to Intellectual Property Law which limited the recording to 60 seconds I downloaded the Audacity editing application. I spent much of today playing with it when I should have been working on an article for the Journal of Intellectual Property Law and Practice. The resulting file is 8 minutes long and took me over an hour to upload even on broadband. It does work. I have downloaded it from the Huddersfield Intellectual Property website.

Anyway, I have spoken about "How the Law protects Investment in Brands". Although it takes a bit of time to download it should be worth the wait. I have thought about what makes a brand and what sort of investment is required to create one. In my view, there's more to the topic than trade mark registration and passing off.

I am not sure when I shall get round to "How…

WIPO Index of Patent Systems

A very useful resourceon the WIPO website is the WIPO Index of Patent Systems. While ostensibly "a tool to help users of patent statistics to understand the impact of differences between patent systems on the interpretation of patent statistics," it could be of enormous practical value to business.

The laws of 41 countries are analysed and compared. Sadly, the UK, France, China and India are missing list but the European Patent Office is there as are the USA, Japan, Germany and South Korea and even Monaco and Libya. It should not be forgotten that the countries with the second and third highest rates of growth in PCT applications between 2003 and 2004 were from Korea and Japan respectively surpassed only by the Peoples' Republic of China (see Press Release PR/403/2005 "RECORD NUMBER OF INTERNATIONAL PATENT FILINGS IN 2004" 9 March 2005). In his talk to the UDRP panellists in October 2005, Dr Francis Gurry (who combines his role as head of the Arbitration and Med…

Radio NIPC: First Experimental Broadcast

This may not be the most sensible for a barrister of my years to do but what the hell. I've gone on air. I have given the first of a series of talks on IP Basics. Tonight's was entitled "What is IP?" Tomorrow's which should be on www.hip.org.uk from 22:00 our time will be on "How the law protects brands". Until I am more familiar with web broadcasting all my talks will be short, simple and intermittent. Later, I hope to offer CPD training online for solicitors and the Bar online.

I really would appreciate some feedback on this one.

Should You apply for a Patent for Your Invention?

One of the questions from the floor at the presentation by Peter Hayward and Ian Lewis on Patent Office Advisory Opinions at Leeds on 24 Nov 2005 was "Why do lawyers advise their clients to seek patents or other intellectual property rights if they know the clients will never be able to afford them?" As I was in the chair I fielded the question to Richard Kempner of Addleshaws and he in turn bundled it off to Michael Harrison, this year's president of the Chartered Institute of Patent Agents.

I am bound to say that I am often asked the question "Should I apply for a Patent?" at inventors clubs and my monthly workshops in the Media Centre. I have now encapsulated the advice that I usually give in a new article on the Huddersfield Intellectual Property website "Should You apply for a Patent for Your Invention?" I appreciate that not every IP professional shares my views but then they do not always see the disappointment when I have to tell a chap who has…

Utility Models: Jon Miles's Presentation Uploaded

One of the most interesting contributions to the Patent Reform Group's conference at Marks & Clerk's last March was Jon Miles's presentation on "innovation patents". These are Australian utility models which stake a claim to a new invention for a fraction of the cost of a full patent. Jon has very kindly made his slides available to us.

I hope that everyone had a good Christmas yesterday and having a good Boxing Day today.

Conferences and Seminars 2005

All the events that chambers are running or to which we are collaborating are now gathered together on one "Events" page at http://www.hip.org.uk/events.htm.

The main one for the New Year will be a half day event on IP dispute resolution. We have three star speakers:

- Ignacio de Castro from the WIPO Arbitration and Mediation Centre who will speak on the arbitration, mediation and domain name dispute resolution services offered through the Centre;

- Sara Ludlam who has recently joined Keeble Hawson from industry will speak of industry's needs for cost-effective but still effective dispute resolution; and

- Felicity Brandwood or one of her staff from the NCC Escrow Service will speak on arbitration and ADR in escrow and other ICT disputes.

The event will take place at BPP Law School at Whitehall 2Whitehall Quays, Leeds, LS1 4HG between 14:00 and 17:45 on 10 May 2006. We should prefer not to have to charge but experience teaches us that solicitors only value things if they have…

Patents: Renewal Fees - Comptroller shows some Christmas Spirit

S.25 (3) ofthe Patents Act 1977 provides:

"Where any renewal fee in respect of a patent is not paid by the end of the period prescribed for payment (the 'prescribed period') the patent shall cease to have effect at the end of such day, in the final month of that period, as may be prescribed."
S.25 (4) permits a patent to be restored If the renewal fee and any prescribed additional fees are paid during the period ending with the sixth month after the month in which the prescribed period ends. Should that deadline be missed an application has to be made to the Comptroller for the restoration of the patent.

At the time the patent in Ahmet Mustafa Onder and Mustafa Ilhameddin Ozbay's Patentlapsed on 3 Nov 2002 a patentee had to satisfy the hearing officer that he patent took reasonable care to see that any renewal fee was paid within the prescribed period or that that fee and any prescribed additional fee were paid within the six months immediately following the end of …

Managing Confidential Information

I have just put up two new articles on managing confidential information originally written by my wife and protecting intellectual property overseas through TRIPs.

Further information is on my Invention blog.

Have a nice Christmas tomorrow.

IP/it Update: New Articles and Case Notes

I have managed to update and upload two articles and two case notes from the old chambers site. The articles are on:
- Ocular Sciences where Mr Justice Laddie rammed home the distinction between the obligation of confidence to which some employees might become subject in the course of their work and the contractual and fiduciary duty to advance his employer's interests that all employees owe to their employer (Case Note: Ocular Sciences v Aspect Vision Care Have Faccenda's Chickens had their Chips?); and
- the distinction between the duty of confidence and fiduciary duty as originally discerned by the Canadian Supreme Court in Lac Minerals Ltd. v. International Corona Resources Ltd.,[1989] 2 S.C.R. 574, 1989 CanLII 34 (S.C.C.) and developed by the Privy Council in Arklow Investments Ltd and Another v. I.D. Maclean and Others (New Zealand) [1999] UKPC 51 in "How far does an Obligation of Confidence overlap with Fiduciary Duty?"
All are important cases but for some …

Why the Country that pioneered the Industrial Revolution is falling behind everyone

A post on my other blogwhich ties in with the Gowers Review which I mentioned here briefly on 5 Dec 2005 (Gordon Bennett (or should that read "Brown"?) - Gowers Review of Intellectual Property) may go some way to explain why Europe in general and Britain in particular is lagging so far behind other countries in the patent application stakes. I review the EPO's study on the cost of patenting in "Cost of Patents: EPO tells us what most of us already knew".

Very briefly, it appears to cost £20,861.15 for a UK inventor or other applicant to get patent protection in his home market, compared to the £7,004.85 than an American would be charged and £3,731.36 that a Japanese would pay. There are lots of other useful statistics too.

None of these comparisons even starts to consider the cost of enforcement which is so much higher here than in the rest of Europe as the report of the government's own advisory committee on intellectual property reported two years ago in &q…

Patent Infringement: Mr Justice Pumfrey's Judgment in Canady v Erbe Elektromedizin GmbH and others

This was a claim for infringement of a European patent for a surgical coagulation device, that is to say a device for directing an argon beam onto an area of tissue to induce coagulation. The action was brought against a German manufacturer of medical equipment, a Japanese optical equipment manufacturer and their respective UK distributors. Much of the battle focused on the handle by which the device was manipulated. The interest for those not directly involved in the case lies in the application of the Protocol on Interpretation of art 69 EPC.

Mr Justice Pumfrey adopted with approval the approach of Mr Roger Wyand QC in Mayne v. Pharmacia[2005] EWCA Civ 137:
"(a) The first, overarching principle, is that contained in Art.69 [of the European Patent Convention] itself . . .
(b) Article 69 says that the extent of protection is determined by the terms of the claims. It goes on to say that the description and drawings shall be used to interpret the claims. In short the claims are to be …

Dispute Resolution: Changes to PD-Protocols

As a mediator and arbitrator I should welcome the following amplification to PD-Protocols:

"The courts increasingly take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still likely. Therefore, the parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt. The Legal Services Commission has published a booklet on ‘Alternatives to Court’, CLS Direct information leaflet 23 (www.clsdirect.org.uk/legalhelp/leaflet23.jsp),
which lists a number of organisations that provide alternative dispute resolution services. The parties may be required by the Court to provide evidence that alternative means of dispute resolution were considered."
My problem is that mediation can add an unwelcome extra layer of costs into the already expensive process. That probably explains why only 3% of CEDR's cases in …

Competition and IP Interface: Two Old Case Notes and One New

Mr Justice Etherton's judgment in Attheraces Ltd and another v British Horse Racing Board and another[2005] EWHC 3015 (Ch) (21 Dec 2005) appeared on the BAILII website just as I was updating and transposing two older case notes on the Antitrust/IP Interface.

Old Case Notes
The first of those two old case notes was the Commission's decision in the IFPI Simulcasting Exemption. Since the exemption was for a very short period and it was granted under Reg 17 which has now been repealed it is largely of historical importance. The second case note, the Court of Appeal's decision inIntel Corporation v Via Technologies Inc. and others[2002] EWCA Civ 1905 (20 Dec 2002) is very much of current interest. It is an example of a Euro-defence that does work in contrast to Sportswear Company Spa and another v Ghattaura (t/a "Gs3") [2005] EWHC 2087 (Ch) (3 Oct 2005 which did not and which I mentioned here in "Euro Defences: Another one bites the Dust" on 6 Oct 2005.

New Ca…

Competition: Common Law Restraints of Trade

I have written a new article on common law restraints of trade and linked it to existing case notes that we wrote some time ago on:
- Emersub XXXVI Inc and Another v Wheatley (1999) 14 July 1998 Queen's Bench Division: Wright J;
- International Consulting Services (UK) Ltd v Hart [2000] IRLR 227; and
- Prosoft Resources Ltd. v Griffiths [1999] ScotCS 96 13 Apr 1999 (Lord Maclean).

Emmersub does not appear ever to have been reported which is a pity as it is an interesting case that illustrates what should happen where an employee is also the vendor of a business.

Copyright: Resale Rights Directive Implementation

London patent agent Richard Gallafent has alerted subscribers to Ideas 21 newsgroup IPR Talk to the draft The Artist's Resale Right Regulations 2006. The page has been up since 15 Dec and readers of this blog may remember my post of 17 Dec 2005 "Copyright: Resale Right Directive to be implemented in New Year" where I also mentioned them.

Gallafent makes an interesting point in his post to IPR Talk:

"It's supposed to benefit Artists and their dependants/successors, but surely all that will now happen is that the galleries will insist on their artists never owning the paintings they hope to sell, i.e. the contract with the gallery will specify that the latter owns the canvas or whatever and the resulting work, agreeing to try and sell it against a commission to the artist of a substantial proportion of the price they get, retaining what used to be their modest commission. The work will never attract resale rights in such a case, thus relieving the Gallery of any res…

Competition: Technology Transfer Block Exemption

I have written and uploaded a brand new new article on the technology transfer block exemption which came into force on 1 May 2004 and is due to remain in place for 10 years. This new block exemption repeals and replaces the previous technology transfer block exemption (Regulation (EC) No 240/96).

This is the first of the new style post Reg 17 block exemptions. Unlike the previous ones it does not serve as a model contract with "white" permitted clauses. It does, however, have a list of what used to be called "black" clauses save that they are now called "hardcore" and "excluded" restrictions. As I said in yesterday's post on the modernization regulation, much of the point of a block exemption has been removed with the abolition of the requirement to notify and the power of national competition authorities as well as the Commission to revoke an exemption.

While on the subject of competition law, there are two interesting new additions to DG C…

Competition Law: Modernization Regulation

As I promised yesterday, I have written my article on Reg 1/2003 and uploaded it to my IP/it Update website. I also recommend Matthew Gream's as well. He has kindly added the links to a presentation in pdf and attachment in his comments to my post on the last update to this website.

The Human Touch

I had a call this afternoon from a solicitor called Justin Patten. He has a very good blog and an even better website. He rang to draw my attention to one of his own cases, a complaint by the painter Ed Miracle against the publisher of the best selling business book "The World is Flat". The irony of the case, says Justin, is that the author of that book excoriates IP infringement. Justin's case has already been picked up by The Times. It seems a very interesting case and I hope it will be resolved quickly and satisfactorily.

Justin practises in the style of "Human Law". He explains on his website that his firm explores the linkbetween the law, technology and people." He promises "cost-effective solutions to clients on key legal issues affecting the digital economy" in particular employment law and intellectual property. He offers a couple of presentations and notes on employment issues. I wish him all the best.

Patents: Pfizer and Others v Ranbaxy Labs and others

The latest round in the Pfizer v Ranbaxy struggle took place in front of District Judge Farnan of the US District Court for Delaware on Friday and as most people who have been following this epic on at least three continents will already know it went to Pfizer. A transcript of the judgment can be downloaded courtesy of the court website.

According to The Hindu business news Ranbaxy intends to appeal which is not surprising given that its share price is some way off its best. The Hindu also gives a link to the decision in Norway and I've mentioned lipitor litigation in Ireland and the USA as well as here in this blog.

EC Competition: Review of Art 82

Some months ago, Neelie Kroes announced a review of the enforcement of art 82 of the Treaty of Rome.To aid the discussion a staff paper has been published today which I have skimmed briefly. There are a number of references to intellectual property licensing though it appears to me to be pretty well IPR neutral. The paper proposes a framework for the continued rigorous enforcement of the article and also for analysing abusive exclusionary conduct. The Commission invites comments by 31 March 2006.

For more information, see the Commission's press release, a speech by the commissioner to Fordham law school on 23 Sep 2005 and a paper by some continental academics to whom the Commission appears to be paying regard.

Competition Law and IP: Updated Article and OFT Talk Transposed

On 1 May 2004 EC and indeed British competition law went through a sea change:

(1) The 40-year regime of notifying all agreements "which have as their object or effect the prevention, restriction or distortion of competition within the common market" to the European Commission pursuant to reg 17/62 was abolished by the so-called "Modernizing Regulation" (Council Regulation (EC) No 1/2003 of 16 December 2002
on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty)
; and
(2) The Commission adopted the Technology Transfer Block Exemption (Council Regulation (EC) No 772/2004 of 27 April 2004 on the application of Article 81(3) of the Treaty to categories of technology transfer agreements).

A block exemption under the post modernization regulation is not quite the same as one made under Reg 17/62. For a start there is no longer any need to notify either to the Commission for exemption from art 81 (1) or to the Office of Fair Trading fo…

Trade Marks: The Last Best Place

My US colleague Toni Tease of Billings, Montana has a fascinating story in the December issue of her newsletter Intellections entitled "The Saga of the Last Best Place". It is very short and well worth reading.

I first learned of the tale in the summer from my fellow blogger Martin Schwimmer before I knew of Toni's interest. The story seemed a bit far fetched and I had assumed that the journalist had picked up the wrong end of the stick. I emailed a link to an article about the case in The Billings Gazette to Toni because I thought it might amuse her. She replied that the substance of the report was accurate and indicated that she knew a great deal about the case.

I have not yet had the pleasure of visiting Montana but everything that I have heard of the state is appealing. Part of that appeal is personal in that one of my dearest friends from both St Andrews and UCLA served in both houses of the state legislature and actually led the Democrats for a while in one of those…

Copyright: Resale Right Directive to be implemented in New Year

Art 12 (1) of the Resale Right Directive(Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art) is supposed to be implemented by 1 Jan 2006. The directive requires EC member states to provide a right for the benefit of the author of an original work of art known as resale right or occasionally "droit de suite". Such right is
"an inalienable right, which cannot be waived, even in advance, to receive a royalty based on the sale price obtained for any resale of the work, subsequent to the first transfer of the work by the author."
France has recognized such a right since 1920, Italy since 1945 and Germany since 1965. As it was resisted by UKIP and some other British MEPs as a continental innovation likely to threaten London's preeminence in the art market, it is worth pointing out that it is not altogether unknown in the English speaking common law world.…

Competition: More Good Stuff

I've updated my introduction to the Enterprise Act 2002 which I wrote in March 2003. It was originally the handout for talks that I gave to Keeble Hawson, Denison Till and the Liverpool Law Society in February and March 2003. The article traces the history of the development of British competition law before the Competition Act 1998, sets out the policy objectives that prompted this legislation, outlines the Competition Act 1998 and provides an overview to the statute. There are links to the legislation, OFT, Competition Commission, Competition Appeal Tribunal et cetera.

Competition: Bringing Down the Cost of Cars

On the day that Tony Blair negotiated an EC budget settlement which is almost certain to get roasted by our Euro-sceptic tabloids I was editing and updating an article entitled "Bringing Down the Cost of Cars" that I first published in the NIPC European Newsletter in March 1998. Even the most curmudgeonly Eurosceptic ought to appreciate the steady work of the Commission over the last 15 years to iron out the enormous price disparities that used to subsist between the UK and the Continent.

The Commission has accomplished that task in two ways. The first way is by applying art 81 (1) EEC rigorously as is shown by the €49.5 million fine that it levied on Peugeot on 5 Oct 2005 for allegedly obstructing the export of cars from the Netherlands. The second way has been by researching and publishing new car prices across the EC on its website since 1997.

Now I have not had much time for Blair since he made his "shoulder to shoulder" speech in 2001 but I do have some sympat…

Competition: Case notes on Crane Wire, Wire Netting and Ladbroke Racing transposed

The Crane Hire (Stichting Certificatie Kraanverhuurbedrijf (SCK) and Federatie van Nederlandse Kraanbedrijven (FNK) v Commission of the European Communities),Wire Netting (C-219/95 P Ferriere Nord SpA v Commission [1997] ECR I-04411) and Ladbroke Racing Cases were three important decisions of the European Court. They concerned standardization, certification, ECSC policy and fines as well as other matters. I wrote a combined case note for our first and only European newsletter. It consisted of some 100 pages and I wrote, copied, posted it to 4,000 recipients when we were setting up these chambers. It put me off the road for a year. That was because I was so exhausted at the end of it that I fainted in Sainsbury's in Wakefield and had to be taken to Pinderfield's hospital. The doctors couldn't rule out epilepsy so I was off the road for a year. Glad to say I've had no recurrence though I still throw myself into my work.

IP/it Update: Copyright Christoffer v Christoffer v Poseidon Film Distributors Ltd.

Although not widely reported Christoffer v Poseidon Film Distributors Ltd.[2000] ECDR 487 is not an unimportant case. Mr Justice Parke's judgement contains some interesting issues on originality, infringement and moral rights. I wrote a note on the case that has somehow managed to climb the Yahoo rankings. I have today updated and revised that note.

Trade Marks: A Blast from the Past from the Land of Saints and Scholars

Before the phrase "Celtic Tiger" was coined, it was a standing joke that Aer Lingus captains would remind their passengers to set their watches back to the 1950s upon landing at Dublin or Shannon airports. Such jokes were at best silly and, in my view, in bad taste. Now that Dell, Microsoft, Dublin house prices and the common agricultural policy have propelled Irish GDP per head well ahead of our own they are just not cracked anymore.

But I got a tinge of nostalgia on reading Mr Justice Clarke's judgment in Metro International S.A. and others v. Independent News & Media plc [2005] IEHC 309 (7 Oct 2005). This was a motion for an interlocutory injunction - note not an application for an interim injunction - but a good old fashioned motion of the kind that I used to argue before the Vice-Chancellor of the County Palatine of Lancaster in Deansgate or, if I was really lucky, a Chancery Judge in the Thomas Moore Building in the Strand. This is pre- Human Rights Act, pre- Se…

Say hello to the Dragon

I have just received an email from the IP Dragon who has a blog on Chinese IP law. His (or perhaps her) URL is http://ipdragon.blogspot.com/ and I urge everyone to pay it a visit. The Dragon has got some good posts - particularly the last one on the WTO ministerial in Hong Kong.

When I was at the WIPO domain name panellists' beano in Geneva in October, the one presentation that knocked me sideways (even more than the needling from Larry Nodine) was Francis Gurry's right at the end. He presented some statistics on the prodigious activities of inventors in Korea, China and Japan from which he concluded that before long much of the world's technical literature will be in a North Asian language. A commentary in English on what is going on in this critical part of the world is priceless. I have set my RSS to collect the Dragon's updates and I think others may benefit if they do the same.

Patents: Opinions on Validity and Infirngement

When Peter Hayard visited Leeds last month he left copies of the first two requests for opinions under s.74A with Jonathan Haines of BPP Law School. Jonathan very kindly arranged for them to be copied and distributed copies to everyone who was interested. Mine arrived yesterday.

The first request, which was lodged by Dr Robert Lind of the Oxford branch of Marks & Clerk on 18 Oct 2005, is for an opinion on whether European patent 1,351,732 granted to Novo Nordisk A/S is valid. The second, which was lodged the very next day by my friend Chris Hemmingway of Bailey Walsh LLP (who happen to be my personal patent agents), is a request for an opinion on infringement. Since they made their requests there have been two other applications.

Both requests are interesting. They are supported by concise and cogent written argument. Robert attacks Novo Nordisk's patent on grounds of anticipation and obviousness and he supports his argument on anticipation with a PCT application already in the …

Seminar - IP for BM-all that a Bmedi@ member or its client needs to know about intellectual property at the outset

Image
Anyone who practises in or near Bradford should come to hear Lucas Bateman, lately of Cobbetts, on 19 Jan 2006. Lucas is the bees kneeswhen it comes to advising start-up high tech companies. Two of his boys won top award at Venturefest last year and they were gracious enough to announce it in their acceptance speech. Also speaking will be patent agent Janet Bray and yours truly.

There will be all the wine and pizza you can consume just for £15 if you are a non-member of free if you join.

For further details contact Steph on 01274 841326 Stephanie@bmedia.org.uk. In case, you are wondering the picture above shows real bees' knees - according to the BBC anyway.

Telecommunications Dispute Resolution: Commonwealth Telecommunications Organisation ADR Centre

I have just had an email from Gregg Hunt of the Chartered Institute of Arbitrators altering me to a speech that he gave to the Commonwealth Telecommunications Organisation ADR Centre on 8 Dec 2005. The dispute resolution clauses Gregg mentions are to be found on the "Resources" page of the CIArb website.

Although he doesn't mention it in his speech, the CIArb has set up a panel for the communications industry known known as the "Communications Providers ADR Service". If you visit the website you will see that it offers dispute resolution services right across the board including internet access and mobile telephony. Those services include mediation, adjudication and ENE. Referral clauses are available for all three methods of dispute resolution. I am a panel member as is Christopher Floyd QC and two big names from Manchester Clive Freedman QC and Michael Black QC.

Information about what I personally do in IP and telecommunications mediation and dispute resolution…

Intellectual Property shouldn't be just for the Rich and Powerful Part II

Yesterday I spoke about the inequality of access to the legal tools that protect investment in brands, design, technology and the arts even in very advanced countries like my own and what I personally have tried to do about it over the last 20 years. This inequality is magnified internationally.

A number of organizations try to do something about that and a pretty good means of keeping up to date with them is the blog and website Intellectual Property Watch. At the moment everyone's attention is focussed on the WTO ministerial in Hong Kong. There have already been a couple of good posts on those proceedings, namely a mention of the 6 Dec 2005 agreement in respect of generic medicines and Chinese legislation to implement an earlier agreement ("TRIPS Public Health Amendment Questioned; China Implements Decision" and "Experts Debate IP Issues As Hong Kong WTO Ministerial Opens", both by Tove Gerhardsen).

There is, of course, much, much more on all sorts of topics o…

Intellectual Property shouldn't be just for the Rich and Powerful

Until its merger with the Supreme Court by the Courts Act 1971, the Palatinate Court of Lancaster had exercised chancery jurisdiction in North-West England since 1351. It had enjoyed considerable independence including nominating its own silks. Judah Benjamin, the former confederate attorney-general, was denied silk in London for fear of offending the US government but was elevated to Queen's Counsel in Lancashire. I am proud to say that the members of the Northern Circuit rarely think twice about offending powerful interests when justice demands. We would be even less cautious of upsetting the present incumbent of the white house. Even after the merger, the title of Vice-Chancellor survived, largely through the campaigning effort of a remarkable Cheshire solicitor called Dykhoff. However, while the Vice-Chancellor's title had survived, his status did not. When I returned to independent practice, the Vice-Chancellor was in fact a county court judge assisted by two deputies - on…

Database Rights: Commission Evaluation - Talk about Faint Praise

Art 16 (3) of the Databases Directive (Directive 96/9/EC of 11 March 1996 on the legal protection of databases OJ L 077 , 27/03/1996 P. 20 - 28) requires the European Commission to submit a report on the application of the Directive, particularly the application of the sui generis right, including arts 8 and 9, and especially whether the application of that right has led to abuse of a dominant position or other interference with free competition which would justify appropriate measures being taken, including the establishment of non-voluntary licensing arrangements to the Council and Parliament before the end of the third year and subsequently every 3 years after that. Where necessary, the Commission has to submit proposals for adjustment of the directive in line with developments in the area of databases.

The Commission has published its evaluation today and invited the public to comments on its work by 12 March 2006. I have only had a chance to skim through it but my preliminary view…

Competition: Australian Retailers Association v Reserve Bank of Australia

A couple of months agoI commented on the OFT (Office of Fair Trading) finding on MasterCard's Interchange fees. There is now an interesting case from Australia on a similar subject. In Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 (28 Nov 2005), the case was an application by a group of merchants for judicial review of the decision of the Australian central bank to designate the EFTPOS (electronic funds transfer at the point-of-sale) payments system under the federal Payment Systems (Regulation) Act 1998.

This statute enables the central bank to "designate" a payment system if it considers it to be in the "public interest" to do so and to lay down standards that must be complied with once the designation has been made. Factors to be taken into account when determining whether something is in the "public interest", include the system's efficiency and competitiveness.

An "interchange fee" is a payment by a cons…

IP/it Update: TRIPs page uploaded and updated

I have updated my 2002 article on TRIPs and uploaded it to my IP/it Update website. I have of course mentioned the extension of time for the least developed nations to implement the agreement under art 66.

IP/it Update: Paris Convention page uploaded

I have just uploaded an article on the Paris Convention that I wrote a few years ago. There are links to the list of members and the index page of the Treaties with links to one or two of the more important articles. I have also cross-linked back to patents, Designs, Trade Marks and Geographical Indications.

Personal Website Update - Domain Names Case Study

I have put up another case study on my personal website. This one is a domain name case where I managed to sort out a domain name dispute through the UDRP (Uniform Domain-Name Dispute-Resolution Policy). This is a public access case where the client had been advised that his only remedy lay in litigation. He came to see me in Easter and he had his domain name back by June. He would also have had change from £2,000. Had he sued in the Leeds District Registry or indeed the Royal Courts of Justice he would probably still be at it. And it would have cost him a lot more than £2,000.

My .law.pro Website

A year ago I bought one of the first .law.pro domain names in England. The address is www.johnlambert.law.pro. I uploaded a few pages shortly after I acquired it but not much more until I received a renewal reminder a few weeks ago. As the renewal fees for this domain are by no means cheap I decided that I might as well expand it to provide information that might be of some use to people who are actually looking for specialist counsel or indeed a specialist mediator or arbitrator.

The site is divided into 7 main sections and covers my chambers, practice, contentious work, non-contentious work, arbitration, mediation and other ADR, terms of work and contact details. I also have my bio and faq. The practice section is divided into my various practice areas - intellectual property, information and communications technology, media and entertainment and competition law. Some of these practice areas are broken down into sub-areas such as patents, copyrights, designs rights etc.

There is a si…