28 September 2011

Polish Presidency Submits New Draft agreement on a Unified Patent Court to Friends of Presidency

In a recent article titled "New Developments Concerning the EU Unified Patent Court", the IP law blog ksnh::law refers to the revised Presidency text of the "Draft agreement on a Unified Patent Court and draft Statute" (Document 13751/11), which was submitted by the Polish EU Presidency to the so called "Friends of the Presidency Group" on September 2, 2011 and then published on September 23, 2011 (see Documents 13751/11 COR 2 and 13751/11 COR 1). 

The amendments of this document over earlier drafts address the compliance with the EU Treaties as set out in opinion 1/09 of the Court of Justice of the European Union (CJEU), i.e.
  • the limitation of participation (thus excluding the participation of third states as well as the EU) and 
  • the strengthening of the obligation of the Unified Patent Court to comply with EU law and request preliminary rulings, if necessary, including through the introduction of sanctions.
Besides the analysis given in the above-references ksnh::law posting, the European Patent Lawyers Association (EPLAW) provides a very own assessment, according to which there are concerns that speed is put above careful analysis and reflection and that an easy compromise has become the only goal, since the propsed text alegedly has a number of serious shortcomings having negative economic impact for European applicants:
  • Inexperienced local divisions reduce quality and efficiency;
  • Court fees must be clarified;
  • Appointment of judges with proven experience unclear;
  • No option for parallel national litigation of EP patents;
  • Longer transitional period and more opt-out/opt-in flexibility required; 
  • There should be no EU rules of patent infringement;
  • Rules of procedure should be clear before Agreement is signed;
  • No provisions relating to SPCs and on legal privilege;
  • Termination provisions required;

    27 September 2011

    Protect your Trademark against Registration under the xxx-TLD within the Sunrise Period

    A new article titled "Schützen Sie Ihre Marke vor einer Registrierung unter der .xxx TLD innerhalb der Sunrise Periode" (in German, sorry;  automatic Englisch translation by Google) on the ksnh::jur blog reports on the sunrise period for registering the new xxx top level domain, which started on September 7 and ends on October 28, 2011.

    The xxx TLD is reserved for "online adult entertainment" and "sexually explicit" content. The sunrise period comprises a Sunrise B period,

    “created especially for non-adult Intellectual Property holders who are non-members of the adult Sponsored Community with verifiable trademark rights so they can block their domains in the .XXX sTLD.”
    As owner of a trademark that has no connection to "adult entertainment", you may consider to block your trademark for xxx domains until 28 October 2011 to prevent unpleasant effects on your trademark equity by pornographic content websites and legal consequences evolving therefrom.

    The xxx-TLD is sponsored and administered by the International Foundation for Online Responisbility, in order to, inter alia, 
    • promote the development of responsible business practices and conduct within the online adult-entertainment community that shall be incorporated into the registrant agreement of all .xxx domain names via a Declaration of Best Business Practices;
    • promote the development of business practices to safeguard children online and combat child abuse and child abuse images. 
    Stuart Lawley, CEO of .xxx registrar ICM Registry, thinks that
    "for the first time there will be a clearly defined Web address for adult entertainment, out of the reach of minors and as free as possible from fraud or malicious computer viruses"
    However, there are serious doubts as to whether or not the new TLD can really meet such high expectations, especially since the pornography industry, as the main addressee of this approach, is rather reluctant. They ostencibly expect censorship and limitations of free speech - as frequently emphasised by the "Free Speech Coaliton" fighting "for freedom of speech respecting the inherent right of adults to be adults" - but effectively only fear financial effects on their sordid multi billion dollar business.

    20 September 2011

    OHIM is Transforming to Become a "True IP Agency"

    In a recent article titled "OHIM Soon To Be Transformed Into Sort Of IP Enforcement Agency" our ksnh::law blog reports on the EU Commission's Document COM(2011) 288 final (EU Council Document 10668/11) that suggests to entruste OHIM "with certain tasks related to the protection of intellectual property rights, including the assembling of public and private sector representatives as a European Observatory on Counterfeiting and Piracy", being perfectly in line with OHIM President Antonio Campinos' plans to transform his boring Registration Office into a flashy "IP Agency", involving merging the EU Commission’s "Observatory on Counterfeiting" into OHIM.

    Even though the Draft is silent about the influence of the Observatory on Internet politics, we believe that this institution will play a significant role in defining and promoting IP enforcement policies affecting the Internet.

    19 September 2011

    Patent-Sceptical German Pirate Party Sensationally Enters Berlin Regional Parliament

    In a new article titled "How (Not) To Get Rid Of Software Patents" on the ksnh::law blog, my colleague Axel Horns reports on the success of the German Priate Party on yesterday's general elections for the Berlin regional parliament, where the party could, for the first time in Germany, surpass the 5% quorum.

    Even though the German Chapter is sceptical about current Copyright and Patent law, the "Piratenpartei" appears not to aim abolishment of patents in general but "only" demands to ban patents on software, genes, biological organisms and business methods. However,the pirate's result may be a "strong sign that also in the field of IP protection times may well be changing" - at least on the (very) long range, if a new generation of voters and politicians takes a different view on innovation and its legal regulation.