Community Patent: The EU Stuck Again?
September 02, 2004
The European Union ("EU") has once again failed to come to an agreement regarding a single unitary Community patent. At the May 18, 2004 Competitiveness Council meeting, the Council of the European Union ("Council") could not reach a unanimous agreement on the proposal for a Council Regulation on the Community patent. The only outstanding issue that has been a stumbling block all along, <i>ie,</i> languages and translation costs of the patent claims, remained unresolved. The EU's main decision-making body concluded that all conceivable compromise solutions had been tried. Accordingly, it stated its intent to refer the matter to the Presidency of the European Council.
From Cradle to Grave
August 31, 2004
Bankruptcy lawyers may not get involved in their clients' transactions until it is too late. They may be called in only upon the occurrence of a default, litigation, or the commencement of a bankruptcy case. At that point, they are faced with deals that have been "set in stone" -- drafted and structured by lawyers specializing in the front-end, who may have looked at the transaction from an overly optimistic viewpoint, especially in the case of a long-term deal with another party that presently is in good financial health.
Spyware: Courts and Legislatures Respond
August 09, 2004
Most find it to be a nuisance. Advertisers consider it to be cutting edge. Either way, spyware (or adware) is receiving a lot of attention recently in the press, in the courts and in legislatures around the country.
European Community Trademark: Two Tracks, One Destination
August 09, 2004
In late June 2004, the European Community acceded to the World Intellectual Property Organization (WIPO) Madrid Protocol on the international registration of trademarks. This development is likely to have a long-standing effect for U.S. trademark owners who wish to obtain trademark protection in the European Community. Indeed, since the inception of the European Community Trademark (CTM) system, U.S. applicants have positioned themselves as leaders in filing new CTM applications. According to recent statistics of the Office for Harmonization in the Internal Market (OHIM), U.S. trademark owners filed approximately 90,000 CTM applications, which constitutes close to 25% of all applications filed. For comparison, the second and third places taken by Germany and the United Kingdom, with 62,000 and 47,000 applications, respectively, are markedly behind the United States in CTM filings.
IP News
August 09, 2004
Highlights of the latest intellectual property news and cases from around the country.
Interpreting Patent Claims: Patent Drafters Say What They Mean, But Do They Mean What They Say?
August 09, 2004
What exactly does it mean to interpret claims "in light" of the specification? Do the descriptions and examples in a patent specification affect the interpretation of the patent's claims where there is no express statement that a specialized definition is being given to claim terms? Absent a specific glossary section, is it even necessary to read the specification or should the public be free to read and interpret the claims in a vacuum? Within 4 days, two separate panels of the Federal Circuit delivered seemingly conflicting answers to these questions, highlighting a growing rift regarding the significance of the specification and prosecution history to claim interpretation.
Knorr-Bremse and the Potential Modification of the Adverse-Inference Rule
July 12, 2004
The near future may bring fundamental changes to patent practice in the United States. On Sept. 26, 2003, the Federal Circuit ordered, <i>sua sponte,</i> the <i>en banc</i> consideration of the Eastern District of Virginia's decision in <i>Knorr-Bremse Systeme Fuer Nutzfahrzeuge GmbH v. Dana Corp,</i> 344 F.3d 1336 (Fed. Cir. 2003). In its order, the court sought answers to questions that analyze its current precedent that authorizes the trier of fact to impose an adverse inference of willful patent infringement where accused infringers invoke the attorney-client privilege. On Feb. 5, 2004, the Federal Circuit heard arguments in the appeal. A decision is pending.
IP News
July 12, 2004
Highlights of the latest intellectual property news from around the country.
A Gala Day for Comparative Advertising
July 12, 2004
Given the expense and burden of resolving false advertising cases in federal court, the promise of an expedient and less expensive alternate forum invites attention. Adding to speed and thrift an assurance that ads will be assessed by experts in the field makes the forum more interesting still. What is this alluring avenue of adjudication? For 33 years, the National Advertising Division of the Better Business Bureau (NAD) has sought to provide just such a mechanism. Yet, even for long-time veterans of federal proceedings, the NAD may be terra incognita. One recent decision by the NAD, <i>In re Distillerie Stock USA Ltd.,</i> NAD Case No. 4197 (June 2004), reveals both benefits and drawbacks of the forum, particularly in how some familiar yet some unique allocations of the burdens of proof can produce results both similar to and quite unlike those in federal court.
