We will soon be starting a blog. The blog is an IP primer.
On 1 April 2014, a new rule came into force at the EPO. The rule relates to divisional patent applications and applies to applications filed on or after that date. The new rule effectively repeals the unpopular (and largely ineffective) previous 24-month time limits for the filing of divisional applications.
The new rule allows the filing of divisional patent applications as long as the earlier (parent) application is pending. However, as with the previous rule, this rule comes with a disincentive: there is an additional fee payable for with the application fees. The amount of the additional fee grows progressively with each subsequent generation of divisional applications. The official fee starts at €210 and when it reaches €840 for a fifth divisional patent application it becomes a flat fee for subsequent divisional application. The generation of the new divisional is governed by which application (divisional or parent) is the basis for the new divisional patent application.
One of our Directors, Ross Kay, will be speaking at the Innovation Matters seminar on 30 April, 2014 at the University of Hertfordshire Biopark in Welwyn Garden City. This event is being organised by Enterprise Europe Network East along with Exemplas, the Design Council and UK Trade and Investment. Ross will be speaking about intellectual property and providing a grounding for those who are new to it, or want to fill in gaps in their knowledge. More details and an on-line booking form can be found on the Enterprise Europe Network East website.
On 31 March 2014, the US Supreme Court will hear oral arguments in the case of Alice Corporation Pty. Ltd. v. CLS Bank International. The case, referred to by some as Alice in Patentland, is to decide (hopefully once and for all, but we shall see …) the issue of whether claims in patents to computer-implemented inventions are eligible for patent protection under US law. As part of their ruling, the Supreme Court is being asked to decide whether claims to systems and machines, processes, and items of manufacture involving computer-implemented inventions are protectable by patents. We will keep you posted …
For some, one of the allures of the Coca-Cola® drink is that the recipe for the beverage is secret. Recently, Coca-cola has bought a 10% stake in Green Mountain Coffee Roasters. Some years ago, Green Mountain/Keurig developed and sold a single-serve K-cup brewing technology, which like the Nespresso system uses pods to allow customers to prepare single coffee servings without having to make an entire pot. The technology was patented, but the patent expired late in 2012.
However, now with the help of Coca-Cola, Green Mountain is now working on developing and launching the Coca-Cola soft drink portfolio for use in a new cold beverage systems, which should be on sale in early 2015. So how long will the recipe stay secret? Already a small raft of patent applications have been filed on the subject of making carbonated drinks. While it might at first seem like home-brewed Coca-Cola drinks spell the end of the recipe being kept secret, it’s really no different to buying a bottle of the drink and taking it home.
However, Green Mountain’s strong patent position may have been one of the contributing factor’s to Coca-Cola’s investment in the company and, no doubt, the “content” provided by Coca-Cola will contribute to the success of the technology. The one-shot technology, like with coffee, adds a certain caché to the experience, which is no doubt more in keeping with how Coca-Cola would like their product to be perceived.
Some interesting facts about Coca-Cola’s early days …
- The drink was created in 1886 by John Pemberton, an Atlanta pharmacist.
- The drink was named “Coca-Cola” by Mr Pemberton’s bookkeeper.
- Atlanta businessman Asa Griggs Candler secured rights to the business between 1888 and 1889.
- The recipe once used coca leaf, but now uses a cocaine-free coca leaf extract prepared at a Stepan Company plant.
- The Stepan Company plant is the only manufacturing plant authorised by the US Federal Government to import and process the coca plant.
More information about the company can be found on Coca-Cola’s website.
According to Interbrand, he Coca-Cola brand is the world’s third most valuable brand after Apple® and Google®, valued at $79.2 billion.
There seems to be some unrest at the European Patent Office, where the Staff Union of the European Patent Office (SUEPO) balloted staff for strike action. The strike ballot involved 4119 out of the 6803 eligible employees. Around 90% of the votes cast were in favour of strike action.
The SUEPO website contains a letter setting out many of its positions.
Strike days have been set for 21, 24 and 25 March, and 14 to 17 April.
… Well it isn’t now! When a football competition is not protected by competition law
A recent court decision on a matter of copyright and competition law concerning the broadcast of Premier League football matches may have radical repercussions for the way football and other sports are funded.
Following a ruling from the Court of Justice of the EU (CJEU) in October, the High Court recently quashed a conviction against pub landlady Karen Murphy for showing English Premier League football matches using a foreign decoder. The decoder and card were bought from Greece, rather than the card and decoder supplied by Sky® television, who own the broadcasting rights for Premiership football in the United Kingdom. The cost of showing the Premiership matches through her Greek decoder and the Greek TV station Nova was 800 pounds per year, rather than the 700 pounds through Sky.
It is a Court case that has rumbled on for six years following a prosecution for showing live football at the Red White and Blue in Portsmouth, when Mrs Murphy had been fined over 8000 pounds.
There were questions raised regarding both copyright law and competition law. In a previous judgement in October 2011, the CJEU ruled that having a system that permitted exclusive broadcasting rights in one country was “contrary to EU law”. The Premier league would therefore have to try to rely on copyright law to protect their rights.
The CJEU ruling continued: “National legislation which prohibits the import, sale or use of foreign decoder cards is contrary to the freedom to provide services and cannot be justified either in light of the objective of protecting intellectual property rights or by the objective of encouraging the public to attend football stadiums.”
The result was not an outright win for Mrs Murphy, as copyright law could still be used to protect the football matches. According to the CJEU, the opening video sequence, the Premier League anthem, and pre-recorded clips showing highlights of recent Premier League matches and various graphics could be protected by copyright.
“By contrast, the matches themselves are not works enjoying such protection,” says the ruling. Despite this, the Premier League, understandably, decided to focus on one aspect of the ruling, saying “Should Mrs Murphy, or any other publican, use European Economic Area foreign satellite systems to show Premier League football on their premises without our authority and outside the scope of our authorisation, they make themselves liable for us to take action against them in both the civil and criminal courts.
The Premier League raises vast sums of money from Sky subscribers. Indeed, it is Sky money that is often credited with the rise of the Premier League and the overwhelming success of British teams in European football competitions, and their ability to sign world class footballing talent. Premier League teams are reliant on the money they receive from broadcasting rights. Arguably, this ruling could introduce competition into the field, which may benefit consumers in terms of the price they pay to watch football, but may have a significant impact in terms of how football – and other sports – is funded.
The wider legality of screening football matches is yet to be decided, and a lot of interested parties are keeping a very close eye. However, one way in which broadcasters may be able to strengthen their position is by ensuring broadcasts are “watermarked”. By this, we mean that certain copyright materials, for example information in the background where a match is being played or some form of continual on-screen translucent logo presence, can be incorporated into the broadcast. Similarly, breaks between match play and replays can be separated by a short video sequence that attracts copyright. This way, even if competition law cannot be used to prevent unauthorised broadcasts, copyright law may be of assistance as removal of the watermarks is impractical.
Is Apple’s recent victory in a Munich court a hollow victory?
A great deal of attention has been given in the tech/legal media to the Apple patent known as the “slide to unlock” patent. It was recently litigated in Germany.
Those familiar with Apple products will know that it is possible to lock some iPods and iPhones to prevent unauthorised use. To unlock the device, a user has to slide a so-called “slider” across a portion of the device’s screen. This is sometimes accompanied by a request to enter a pin code.
Apple claimed that the patent was infringed by an unlock feature used by two of Motorola Mobility’s (MM’s) smartphone products that run Google’s android operating system. The mention of Google’s operating system is bit of a red herring, because the exact implementation of the unlock feature is a manufacturer matter as opposed to something mandated by Google’s Android operating system. Google is, though, in the process of acquiring MM, which does make things interesting.
A court in Munich has now announced a decision in Apple’s favour, but this does not extend to MM’s Xoom product. However, in a recent statement, a spokesperson for Motorola Mobility stated that this decision will not affect current supply or future sales. Nevertheless, we understand that MM has decided to change the unlocking feature.
It’s not clear whether MM will nevertheless appeal the decision, but what is clear and almost completely ignored by most of the media is that this is not the whole story. In Germany, patent validity is handled by a different court to patent infringement. You therefore have a two-track system. This means that although one court may find a patent is infringed, the other court may find the patent invalid in which case the fact that the patent is infringed is all very interesting, but doesn’t really get you anywhere because you never had any valid patent rights in the first place.
Typically, a court handling the infringement case refrains from making a decision before there has been a pronouncement on the validity of the patent in question. This was also the case for the Apple patent. However, it seems that Apple managed to persuade the court that MM’s attack on the validity of their patent was unlikely to succeed.
Whether this is how things will play out in the court is an entirely different matter. All we will say is that one poster on a news website recently observed that the front gate outside his house had a slide to unlock feature! The matter of validity may therefore not yet be in the bag for Apple. Indeed, a Dutch court has, in the past, declared invalid a corresponding Dutch patent for the same invention.
As the song, album title and saying goes: it ain’t over ’til it’s over!
No Attempt by UK IPO to Reverse Symbian Appeal Judgement
Following a relatively recent decision of the Court of Appeal of England, Wales and Northern Ireland, the UK Intellectual Property Office (UK IPO) has decided not to appeal the decision to the House of Lords (the highest appellate court in the UK).
A review of Computer Implemented Inventions (CIIs) has been requested by the President of the European Patent Office (EPO) by a referral to the Enlarged Board of Appeal of the EPO due to a perceived divergence in case law of the EPO Boards of Appeal. The UK IPO, like the Court of Appeal, feels that it would be premature for the House of Lords to consider this matter before the EPO sinks its teeth into it (if it decides to do so). This means that, for the moment, the Court of Appeal judgement stands and certain types of software-based inventions implemented on a general-purpose computer, amongst other types of hardware, can be patented in the right circumstances.
Apple has reached a pre-trial settlement on undisclosed terms
Apple has reached a settlement with a Vermont firm that claimed that Apple’s iTunes music software infringes their patent.
Court documents show that the patent owner, Mr David Contois, sued Apple in the U.S. District Court of Vermont in June 2005, accusing the company of infringing U.S. Patent No. 5, 864, 868 filed in February 1996 and relating to a computer system and method for controlling a media playing device.
According to this original court complaint, Mr Contois believed current or future Apple employees were in attendance when he first demonstrated his invention at a technology trade show in November 1996.
The case settled on 21 August 1996 only after a number of pre-trial hearings.