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Showing posts from 2018

Data Protection: The "Right to be Forgotten" Updated

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Jane Lambert

The phrase, "the right to be forgotten", was coined by the Audiencia Nacional (the Spanish high court) in its formulation of the questions to the Court of Justice of the European Union ("CJEU") pursuant to art 267 of the Treaty on the Functioning of the European Union in Case C‑131/12 Mario Costeja Gonzalez v Google Spain SL and another [2014] 2 All ER (Comm) 301, [2014] All ER (EC) 717, [2014] 1 QB 1022, [2014] 3 CMLR 50, [2014] ECDR 16, 36 BHRC 589, ECLI:EU:C:2014:317, [2014] EMLR 27, EU:C:2014:317, [2014] 3 WLR 659, [2014] EUECJ C-131/12, [2014] QB 1022.

In that case the Audiencia Nacional asked the CJEU

"whether Article 2(b) of Directive 95/46 is to be interpreted as meaning that the activity of a search engine as a provider of content which consists in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a pa…

The Business and Property Courts Practice Direction - IP Litigation outside London

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Jane Lambert

According to TaylorWessing's Patent Map, England and Wales remains the most expensive country in Europe in which to contest a patent action. The European Patent Office reports that the UK lay 9th in the number of European patent applications that were filed in 2017 trailing not just the USA, Japan, China and Germany which are considerably bigger in population and GDP than the UK but France, South Korea, Switzerland and the Netherlands that are the same size or smaller (see European patent filings per country of origin). It seems likely that the UK's relatively lacklustre performance in the number of European patent applications is connected to the high cost of enforcement.  I have plenty of anecdotal evidence from my practice, patent clinics and inventors' clubs to support that contention.

One of the reasons why patent litigation in England and Wales is more expensive than in other countries including other common law jurisdictions such as the Republic of Irel…

Space Industry - Licensing Spaceports

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Jane Lambert

In Commercial Exploitation of Space: Space Industry Act 201810 April 2018 I mentioned the government's aim to expand the British share of the global space market from the present 6.5% to 10% by 2030. Much of that growth will come from the development of small satellite delivery vehicles and suborbital transports which will take off and land on conventional runways.

The development of facilities for such spacecraft is likely to stimulate local economic activity considerably.  I mentioned the cluster of aerospace businesses that is already gathering at Cornwall Airport Newquay in NIPC Cornwallthis morning.  Newquay is one of a number of airports around the coast of Great Britain planning to handle space traffic.

Such facilities fall into the definition of "spaceports" provded by s.3 (2) of the Space Industry Act 2018.  S.3 (1) (b) prohibits anyone from operating a spaceport in the UK without a licence under that section.  A licence authorizing a person to oper…

Commercial Exploitation of Space: Space Industry Act 2018

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Jane Lambert

For many years space was a government activity largely because most of the early uses of the technology were military and the vehicles that launched transported people and objects into space were developed from missiles. Gradually, civilian uses were found for the technology such as satellite broadcasting, remote sensing and telecommunications.  The value of the global space market is between £155 and £190 billion and likely to rise to £400 billion by 2030 according to the Space Sector Report 1 which was prepared for the House of Commons Committee on Exiting the European Union. The Industrial Strategy white paperstates thatthe United Kingdom has about 6.5% of that market and that the government hopes to increase that share to 10% by 2030.

In order to achieve that goal the British government has to update the legal framework that regulates the industry.  The legislation that currently applies is the Outer Space Act 1986 which prohibits:
(a) launching or procuring the launc…

Branding - Student Union Lettings Limited v Essex Student Lets Limited

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Jane Lambert

Intellectual Property Enterprise Court (Miss Recorder Michaels) Student Union Lettings Limited v Essex Student Lets Limited [2018] EWHC 419 (IPEC) (7 March 2018) 


This was an action for trade mark infringement and passing off.

The Mark
The mark alleged to have been infringed was the word SULETS.  It was registered as a trade mark under registration number UK00003101453 with effect from 27 March 2015 for the following services:

Class 36: "Accommodation letting agency services; property management services; property leasing services; land management and leasing services; advisory services in relation to all the aforesaid"
Class 37: "Property development (construction) services; property renovation, repair and maintenance services; property cleaning services; advisory services in relation to all the aforesaid"

The Claimant
The registered proprietor of that mark was Student Union Lettings Ltd. ("SUL") which describes itself as "a not-for-profit o…

Brexit Briefing - March 2018

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Jane Lambert

March's Brexit Briefing which I published today in NIPC Brexit discussed the draft withdrawal agreement contemplated by art 50 (2) and the guidelines for negptiations on the future relationship between the UK and EU provided by the European Council and the European Parliament.

While welcoming the progress that has been made to date I warn that nothing is agreed until everything is agreed and that there are plenty of things that can go wrong between now and Brexit day/  It is quite possible that the EU treaties will fall away on 29 March 2019 without anything taking their place.  Even though the government has assured them of a period of stability between that day and 31 Dec 2020, my advice to businesses on both sides of the English Channel and Irish border is to continue to plan for the worst (that is to say, no agreement at all) as well as hoping for the best.

Anyone wishing to discuss this article or Brexit generally should call me on +44 (0)…

What is Traditional Knowledge and how far is it protected in the UK?

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Jane Lambert

On Easter day the Intellectual Property Office tweeted
The modern #Easter egg owes its development to Van Houten’s invention of a press for separating cocoa butter from the cocoa bean in 1828. pic.twitter.com/PwcaaxMG4O — IPO.GOV.UK (@The_IPO) April 1, 2018
Chocolate came from the New World and its properties were discovered by the indigenous peoples of the American continent. It is a good example of what we would nowadays call "traditional knowledge."

According to the World Intellectual Property Organization ("WIPO") traditional knowledge is a living body of knowledge passed on from generation to generation within a community which often forms part of a people’s cultural and spiritual identity. Its traditional knowledge and intellectual property background brief explains:

"The current international system for protecting intellectual property was fashioned during the age of industrialization in the West and developed subseq…

Domain Name Dispute Resolution Resources

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Jane Lambert

A domain name is a mnemonic for an internet address, that is to say a long string of numbers that identifies a website, mailbox or other resource. Since they are used to identify businesses, government departments, international agencies, universities and other institutions they can be very valuable assets.  They can be registered for one or more years for a few pounds, euro or dollars without extensive checks or formalities on a first come first served basis.

Those who apply to register domain names have to warrant and represent to their domain name registrar that they are entitled to register those names in their registration agreements.  They are also required to agree to refer any complaint by a trade mark or other intellectual property right owner that they are not so entitled to a form of alternative dispute resolution ("ADR").

There are a number of policies for such dispute resolution.   Disputes relating to generic top level domain names - that is to say…

One Year to Brexit - Are Rumours of the Death of the Unified Patent Court Agreement Greatly Exaggerated?

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Jane Lambert

"James Ross Clemens, a cousin of mine, was seriously ill two or three weeks ago in London, but is well now. The report of my illness grew out of his illness; the report of my death was an exaggeration." (Mark Twain)

The last time I wrote about the Unified Patent Court and unitary patent I was pessimistic on whether the United Kingdom could remain a party to the Unified Patent Court Agreement after 29 May 2019 and also  on whether that agreement could survive the UK's departure (see What, if anything, can be salvaged from the UPC Agreement?26 Jan 2018). On balance I am still pessimistic but I have not yet given up hope on either score.

There are four reasons for not giving up hope completely all of which have arisen since my last article:-
The Privy Council made The Unified Patent Court (Immunities and Privileges) Order 2018 SI 1988 No 184 on 8 Feb 2018 which clears the way for British Ratification of the agreement.  We now have a wide measure of agreement on t…

Patents - EPO Annual Report 2017: Some Encouragement for the UK but the Big Story is the Rise of China

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Jane Lambert

As I noted yesterday in Comptroller visits the EPO27 March 2018 NIPC News, British companies and inventors applied for 5 313 European patents last year according to the European Patent Office's Annual Report 2017which was a 2.4% increase over the 5,188 of the previous year and the 4th straight year of increase.  This is with with an increase in PCT applications from the UK from 5,502 in 2016 to an estimated 5,567 in 2017 (see PCT international applications by originon the WIPO website). There has also been a 9.3% increase in international trade mark applications through the Madrid system (see Madrid international applications by origin) and a small increase in design applications under the Hague agreement to which the UK has recently acceded (see Hague international applications by origin).

It is probably too early to speculate on the reasons for this increase in filing activity from the UK but it may reflect growing confidence in the enforceme…

Accelerator Resources

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Jane Lambert

Accelerators are a way of helping new businesses to establish themselves.  They are short programmes that last between 4 and 12 months in which groups of entrepreneurs known as "cohorts" refine their business plans and are given the skills, knowledge and connections they need to succeed.  NESTA (the National Endowment for Science, Technology and the Arts) published a research paper and directory of accelerators and incubators last year which I discussed in Business Incubators and Accelerators Directory20 April 2017 NIPC News.
On 22 April 2017 I discussed the Accelerators and Incubators in the Leeds City Regionin IP Yorkshire and on the 24 I considered those in Sheffield in Accelerators and Incubators in the Sheffield City Region.  I also mentioned a new fintech accelerator in Dubai inFinTech in Dubai 3 Aug 2017 in NIPC Gulf.
Since a lot of inventors fail because they lack the skills and connections needed to convert their inventions into …