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Showing posts from January, 2018

What, if anything, can be salvaged from the UPC Agreement?

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Jane Lambert

On 12 Feb 2018 I shall address a seminar entitled the Implications of Brexit on Intellectual Property Law which will be hosted by Queen Mary University of London Centre for Commercial Law Studies at 67-69 Lincoln's Inn Fields (see Jane Lambert Implications of Brexit on Intellectual Property Law19 Jan 2018 NIPC News). The topic that I have chosen is "What if anything can be salvaged from the Unified Patent Court Agreement?"

The reason I have chosen that topic is that it seems increasingly unlikely that the Unified Patent Court ("UPC") will open its doors before 23:00 on 29 March 2019 which is "exit day" within the meaning of clause 14 (1) of the European Union (Withdrawal) Bill (HL Bill 79).

I say that for two reasons.

The first is that art 89 (1) of the Agreement on a Unified Patent Court provides that that agreement will come into force "the first day of the fourth month after the deposit of the thirteenth instrument of ratification…

Obviousness - Hospira v Cubist Appeal

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Jane Lambert
Court of Appeal (Lord Justices Lewison and Kitchin) Hospira UK Ltd v Cubist Pharmaceuticals LLC [2018] EWCA Civ 12 (18 Jan 2018)
Daptomycin is an antibiotic used to treat systemic and life-threatening infections caused by multiple drug resistant bacteria. Its effectiveness depends on its purity. The invention for which the patent in suit was  granted was a way of purifying the antibiotic. In Hospira UK Ltd v Cubist Pharmaceuticals LLC [2016] EWHC 1285 (Pat) (10 June 2016), Hospira UK Ltd, (a British subsidiary of Pfizer) sought the revocation of that patent.  Mr Justice Henry Carr found that the patent was invalid and ordered its revocation. Cubist Pharmaceuticals LLC (a subsidiary of Merck & Co.) appealed against that judgment and order inHospira UK Ltd v Cubist Pharmaceuticals LLC [2018] EWCA Civ 12 (18 Jan 2018),

The Issue
The only issue in the appeal was whether the invention was obvious over an article by by Sung-Chyr Lin and Horng-Jyh Jiang entitled "Recovery …

Design Rights in Wedding Dresses: Madine and Another v Phillips and Another

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Jane Lambert

Intellectual Property Enterprise Court (Ms Amanda Michaels)  Madine and Another v Phillips and Others [2017] EWHC 3268 (IPEC) (13 Dec 2017) 

Thelma Madine makes wedding addresses.  According to Amanda Michaels, who tried an action that Mrs Madine brought against Miss Leanne Phillips and her mother Mrs Pauline Phillips, two of her former employees, for design right and copyright infringement and passing off, "the hallmark of her dress designs is their extravagance, not just in terms of the price of the gowns, but in terms of the size and weight of the skirts, which tend to have to be supported by hoops (like a crinoline), and the elaborate nature of the decoration applied to the dresses." Mrs Madine was featured in the Channel 4 documentary My Big Fat Gypsy Weddingwhich was broadcast some years ago.

The Action
One of Mrs Madine's customers was a bride who is referred to as "Delilah" in Miss Michael's judgment.  Delilah appears in the above photo  i…

FRAND - a Postscript

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Patent Court (Mr Justice Birss) Unwired Planet International Ltd v Huawei Technologies Co. Ltd and Another [2017] EWHC 3083 (Pat) (30 Nov 2017) 

On 5 April 2017 Mr Justice Birss delivered two judgments. One contained the judge's reasoning in full which was seen only by the parties' lawyers while the other was redacted.  I discussed the redacted version in FRAND8 Oct 2017. The problem with redactions, as Mr Justice Birss observed at paragraph [23] of his judgment in Unwired Planet International Ltd v Huawei Technologies Co. Ltd and another [2017] EWHC 3083 (Pat) (30 Nov 2017) is that "unless the public can see and understand a judge's reasons they cannot hold the courts to account."  Since different parties to the litigation had requested the removal of different parts of the full judgment, his lordship convened that hearing with the parties' solicitors to give directions about what should be published and what should not.

In approaching that issue the learned…

Trade Marks: Nicoventures Holdings Ltd v The London Vape Company Ltd

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Jane Lambert

Chancery Division  (Mr Justice Birss) Nicoventures Holdings Ltd v The London Vape Company Ltd [2017] EWHC 3393 (Ch) (21 Dec 2017) 

On 26 Oct 2016, Nicoventures Holdings Limited applied to register the above trade mark for:
electronic cigarettes; cartridges for electronic cigarettes; liquids for electronic cigarettes; cigarettes containing tobacco substitutes; tobacco substitutes; cigarettes; tobacco; tobacco products; cigarette cases; cigarette boxes in class 34; andretail store services connected with the sale of e-cigarettes, electronic cigarettes, liquid solutions for use in electronic cigarettes, tobacco, smokers' articles, matches, personal vaporisers and electronic cigarettes and flavourings and solutions therefore in class 35. The application was opposed by The London Vape Company Ltd. under s.5 (2) (b) of the Trade Marks Act 1994.  The earlier trade mark upon which the opponent relied was the following mark:








That mark was registered for electronic cigarettes; Li…

Passing off - The National Guild of Removers & Storers Ltd v Luckes and Others

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Intellectual Property Enterprise Court (HH Judge Hacon) The National Guild of Removers & Storers Ltd v Luckes and Others [2017] EWHC 3176 (IPEC) (7 Dec 2017)

Yesterday I discussed Judge Hacon's judgment in The National Guild of Removers & Storers Ltd v Central Moves Ltd and Another [2017] EWHC 3175 (IPEC) (7 Dec 2017) in Damages for Passing off - The National Guild of Removers & Storers Ltd. v Central Moves7 Jan 2018 NIPC Law.   That was an appeal by the National Guild of Removers & Storers Ltd. ("NGRS") from District Judge Vary's judgment awarding £1,275 damages against a former director of a dissolved company for passing off and costs on the small claims track scale. On the same day as he heard the appeal in Central Moves, His Honour heard The National Guild of Removers & Storers Ltd v Luckes and Others[2017] EWHC 3176 (IPEC) (7 Dec 2017) which was another appeal by the NGRS against the judgment of another district judge.  In that case District …

Damages for Passing off - The National Guild of Removers & Storers Ltd. v Central Moves

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Jane Lambert

Intellectual Property Enterprise Court (HH Judge Hacon) The National Guild of Removers & Storers Ltd v Central Moves Ltd and Another [2017] EWHC 3175 (IPEC) (7 Dec 2017)

This was an appeal by the National Guild of Removers & Storers ("NGRS") against an award of £1,275 damages in its favour by District Judge Vary for passing off. By dismissing that appeal, His Honour Judge Hacon seems to have settled a 7 year controversy as to what should be the correct measure of damages for what is often an inadvertent misrepresentation of continued membership of the NGRS by a removal or storage business that no longer wishes to remain a member of that guild.

The NGRS

At paragraph [4] of his judgment in The National Guild of Removers & Storers Ltd v Central Moves Ltd and Another [2017] EWHC 3175 (IPEC) (7 Dec 2017), His Honour Judge Hacon described the NGRS as "a trade body which promotes the interests of those trading in the removal and storage industry". O…