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LimeGreenIP News

CJEU – PINK LADY: Infringement and parallel opposition proceedings – different fruits?

IP Enforcement Focus2In the second Vlog of the IP Enforcement Series we report on another recent decision of the Court of Justice of the European Union which deals with the relationship between infringement and parallel opposition proceedings.

The decision demonstrates how they can take quite different paths.

Click here to watch our short V-log.

US: Time to simplify patent challenges (perspective)

The America Invents Act (AIA) became law roughly five years ago, and with its implementation came new administrative proceedings by which companies may challenge the validity of patents at the U.S. Patent and Trademark Office. Rather than establishing a single uniform procedure that permits challenges to any patent based on any statutory ground, however, Congress decided to create three distinct proceedings: inter partes review (IPR), post-grant review (PGR), and covered business method (CBM) review. Each has its own unique limitations and special carve-outs.

…a single, uniform proceeding would streamline rules and procedures, while at the same time providing more predictable decisions regarding patent validity.

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Blockchain smart contracts need a new kind of due diligence

Digitalcontract

In this post we examine the issues that can arise when recording smart contracts in an immutable system and raise the need for enhanced due diligence before any transactions are written in “blockchain stone”.

“…due diligence will bring together specialized transactional lawyers who can review the terms of a specific deal, software experts who can analyze smart contract program code and its operation on the blockchain, and ‘smart contract’ lawyers who can bridge the gap between the two.”

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DSM Watch: A closer look at the draft EU Regulation on online transmissions of broadcasting organisations and closed networks

DSMLast week, the European Commission officially released a communication on its endeavours to modernize the EU copyright rules. The paper was accompanied by several – long awaited – legislative proposals aiming for modelling future European copyright law (see blog post).

Following-up on our introductory blog post last week, we now take a closer look at the proposed Regulation on the exercise of copyright and related rights in the field of online transmission of broadcasting and retransmission of television and radio programmes.

Background

On 6 May 2015, the European Commission announced its comprehensive Strategy for a Digital Single Market. In December 2015, a first action plan for modernizing European copyright followed (see blog post). This plan already contained several – although still vague – proposals for the anticipated reform. In August 2015, the Commission launched a public consultation regarding the review of the Satellite and Cable Directive aiming at determining how content right holders and collecting societies would react to an extension of the “country of origin” principle to services transmitted via the Internet. In February 2016, the preliminary trends of the consultation were released (see blog post). The now published regulation builds on that consultation.

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Webinar invitation: Digital Single Market – The New European Copyright

There have been busy days in Brussels regarding the shaping of tomorrow’s copyright law in Europe. It took the Commission ten months to follow-up on its first package of copyright legislation released last December, with a second set of draft regulations and directives published on 14 September 2016.

The second legislative package truly touches upon almost everything that is hot in today’s copyright regime. Broader access to digital content, data mining, publishers’ rights in the context of a fair share of value, licensing hubs, online transmissions and retransmissions of television and radio programs, or mandatory exemptions to copyright are only a few examples reflecting the breadth and depth of the anticipated reform which the Commission is expediting under its bold leitmotif “Towards a modern, more European copyright framework”. It is fair to say that we are facing the most comprehensive revision of the European copyright environment in twenty years.

Join us on Friday 23 September, at 2:00 pm (BST) for a webinar where we will give you an overview of the anticipated reform, highlighting the most significant changes proposed by the Commission and who this affects. Our findings will be put into the broader context of the Digital Single Market strategy. We also look at the industry impact the new legislation will have in today’s digital world. Continue Reading

CJEU renders next landmark decision – this time on free Wi-Fi

So far, September has been a busy month in Luxembourg. On 8 September 2016, the Court of Justice of the European Union (CJEU) handed down a ground-breaking judgment on hyperlinking (Case Ref.: C-160/15 – GS Media, see our earlier post). On 15 September 2016, this equally important verdict followed (Case Ref.: C-484/14McFadden). The judges had to decide upon the liability of an access provider who offered his customers a free Wi-Fi connection in his shop. A customer had used the connection to illegally upload and share copyright-protected content. The shop owner referred to and defended himself with the liability privilege available for access providers under European law. It was now for the CJEU to rule whether such defense was actually available.

Background

The case was originally referred to the CJEU by the Regional Court of Munich. The German judges are required to decide on a lawsuit brought against a shop owner called Tobias McFadden by the plaintiff, Sony Music Entertainment Germany. Mr. McFadden, whilst running a business for sale and renting out lighting and sound systems, offered his customers a free Wi-Fi connection at his premises. In September 2010, one of his customers unlawfully uploaded a copyright work via Mr. McFadden´s Wi-Fi. Shortly after this, Sony being the rightful owner of the content sued the shop owner seeking  injunctive relief and damages. Continue Reading

IP in the digital age: a tricky path ahead for pharma companies?

doctorThe pharmaceutical industry needs to adjust its expectations of the scope of IP protection available in the digital age

The pharmaceutical industry is becoming increasingly interested in digital health and serious money is being invested in the technology. Pharmaceutical companies are used to an established commercial formula for bringing new products to market, with product development involving a significant up-front investment including research and development costs and generating the requisite quality, safety and efficacy data.

Recovering these costs and generating a profit depends on how successfully the company can navigate the marketing authorisation (MA) process, data exclusivity and intellectual property.

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First published here in Life Sciences intellectual Property Review (LSIPR), 13 September 2016

DSM Watch: Legislative proposals on Copyright officially released

DSMThese are exciting days for copyright fans. Yesterday, the European Commission officially published a communication accompanied by several – long awaited – legislative proposals regarding the future of the European copyright law (see this press release). The content of the individual documents does not come as a surprise given that we have seen a number these documents leaked as drafts at a very mature stage recently. For more information please see our blog posts on the leaked impact assessment, the leaked communication, and on the leaked legislative proposals.

However, there are some changes in the officially presented proposals one can perceive. First of all, the differentiation of the copyright reform into four parts – introduced by the Communication “Towards a modern, more European copyright framework” last December – is reflected in the latest Communication. Unlike in the leaked version, the Commission now also refers to the fourth area regarding the effective and balanced enforcement system. According to the Commission’s anticipation, further action is to follow in this last field after a comprehensive evaluation. Continue Reading

IP Enforcement Focus: CJEU gets physical – Vlog

IP Enforcement Focus2This post launches our IP Enforcement Focus series of written, video and audio posts which plug into your current enforcement issues. These posts cover IP related court cases as well as relevant political and economic developments in this area.

In this first short video post,  Leopold von Gerlach takes a look at how the CJEU tackles liability of physical marketplace operators in the recent Judgment in Case C-494/15 Tommy Hilfiger Licensing LLC and Others v Delta Center.  Find out why “the operator of a physical marketplace may… be forced to put an end to the trade mark infringements by market-traders and to take measures to prevent new infringements” and what the related remedies could be.

Click here to view the Vlog

CJEU: New landmark case on hyperlinking

GSMLast Thursday, the Court of Justice of the European Union (CJEU) handed down a long-awaited judgment on the separation of legal and illegal hyperlinking (see verdict of 8th September 2016, C-160/15GS Media). At the heart of the decision is the question of when a hyperlink is to be deemed a “communication to the public” and thereby an act of exploitation of copyright. The importance of clear definition is reflected in the manifold services offered online in today’s digital world (e.g. TV replay offers, real-time streaming, online newspapers or social media).

Generally, one has to look at whether the content has been published with or without the author´s consent. However, this might be beyond the knowledge of the Internet user setting the link. With the current decision, the CJEU clarifies that hyperlinking in a commercial context triggers certain due diligence obligations. In essence, the judges establish a rebuttable presumption for posting the commercial hyperlink with full knowledge of the illegal nature of the content. Thus, the judgment adds a further important detail to the CJEU’s jurisprudence on hyperlinks following the landmark cases Svensson (C-466/12, see also our blog post) and BestWater International (C-348/13).

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