Friday fantasies

Forthcoming events: this year is now nearly over, unless you have a job as a Christmas Santa or as a sales assistant -- in which case you may not be an IP practitioner, brand owner, patent troll, recording company manager or patent office functionary. However, for those who are interested, the list of next year's conferences, seminars, talks etc is building up nicely. You can check these events out here.

The fun and games concerning the General Court's failure in Cases T-253 and 354/09 Wilo v OHIM is/are now over. The Curia report in this appeal against refusal to allow registration of the shapes depicted here as three-dimensional Community trade marks was supposed to contain two images but initially showed nothing more revealing than two "Image not found" messages.  Anyway today, after a preponderant majority of readers had reported that they were unable to see any images at all, at 1330 CET (1230 GMT) the errant images finally appeared on both the French and German versions of the report (the only two languages in which the ruling is available).

Sadly the operators of the Curia website have not yet contacted tytoc collie to let him know how we can get in touch with them and ask that images appear online; nor have they confirmed that they've taken steps to ensure that this will not happen again.  Really, there's little point in publishing decisions on the registrability of figurative or 3D marks if we can't see what the court is talking about -- so please, Monsieur Curia, get in touch!

If you are excited about Madrid, international trade mark filings and early breakfasts, you'll be delighted to know that Alfred Strahlberg's LinkedIn Madrid Groups and the CTM Group plan a breakfast meeting on Tuesday, 17 May 2011 from 8-10 am at the Golden Gate University, 536 Mission Street, San Francisco, coinciding with next year's INTA Meeting. tytoc collie has attended the two previous versions and very much enjoyed the cut-and-thrust of debate, plain speaking, good humour and delicious US-sized yoghurts.  If you're a LinkedIn person, don't mind Alfred and early starts but do mind what hasn't yet gone 100% with international trade mark protection, be there!

Back in October tytoc collie reported that Group Lotus (the car manufacturer) was unhappy that Team Lotus Ventures Ltd and related companies intended to name their 2011 Formula 1 team “Team Lotus”. Those companies maintain that they are the successors to the original Team Lotus business, have the right to use the name and own various trade mark registrations for it. Group Lotus has now announced that it has bought an equity stake in the Renault F1 Team and plans to rename that team “Lotus Renault GP” for the 2011 Formula 1 season [Merpel wonders if Lotus Renault is perchance related to Zoe Renault]. In a press statement the team added that the 2011 cars “will race in a new interpretation of the iconic black and gold colours that were last used when Lotus and Renault joined forces in the 1980s.” This refers to the livery used by Team Lotus when sponsored by John Player Special.  Further reading can be found here and here.  Adds tytoc collie's old friend, that sage old trade mark commentator and co-branding expert Bob Boad, "This confirms what we have long known, that having separate rights to use the same brand leads to tears, sooner or later".

When a piece of software is named Patriot Charts, one nurtures the gentle suspicion that it might just be an American product -- which is indeed the case. According to the promotional literature, "Patent Calls' innovative evidence management software, Patriot Charts, is designed specifically for firms involved in patent enforcement cases and helps litigation teams bring together the relevant facts, communicate connections between patents and products, and advance toward a faster case settlement". [Hold on, says Merpel, doesn't that take all the fun out of it?].


Another conference, another competition!  This time the conference is "Enforcing Intellectual Property Rights Effectively", organised by CLT Conferences and to be held in London on 8 March 2011.  As ever, there's a great programme (here) and IPKat team member Jeremy is in the chair.  The cast includes new Patents County Court judge Colin Birss QC, plus attractions such as the dynamic Karen Fong (Rouse Legal, and Docklands' answer to Elle Macpherson), the effervescent Ruth Orchard (Anti Counterfeiting Group) and none other than Zuzana Heckova (European Commission's IP Enforcement Squad).  Anyway, the competition is simple.  Yesterday tytoc collie was inspired by a spontaneous limerick from his friend Howard Knopf (lawyer, Excess Copyright blogger and a man who can probably spell 'Athabasca' without even needing to stop and count the 'a's).

A battered and bruised patent barrister
Sought revenge on her friend who had harrassed her.
To the Court she replied
That his client had lied
And was far from the really true inventor.

Apart from the truly terrible last line, this limerick was so exciting that it prompted the Kat to call for an IP enforcement limerick.  Please send yours to tytoc collie here by not later than close of play on 8 February with the subject line "Enforcement limerick".  The winner gets free admission to the conference and not merely a free lunch but a chance to meet the Cook himself.

An anxious reader writes:

"I am interested in any case law or articles relating to a Licensor challenging proprietorship of Patents obtained for Licensor's 'inventions' by their Licensees in China (or elsewhere). Can your readers help? The background to this request is that confidential technology used publicly by a Licensor overseas and licensed into China could (until SIPO's adoption of standards of "universal novelty" - Oct. 2009) be the subject of a Chinese patent application filed 'unlawfully' by the Chinese Licensee. This misappropriation of IP results in the Licensee owning so-called "hijack patents" for 'inventions' belonging to the Licensor. Proprietorship can be challenged before the Chinese Patent Re-examination Board, but it would be useful to cite persuasive cases or articles about similar challenges in China or elsewhere".

If you can ease this reader's pain by suggesting something to read, ideally something that will enlighten him, please can you post your recommendation at the foot of this article.


Finally, tytoc collie's learned and talented friend Tony McStea has chosen to brighten our impending weekend with some comments on the comments on the comments on the notion that EU patents have either something or nothing to do with certainty (on which see here and earlier posts).  He writes

"I always explain the Art.69 Protocol in the following terms; "Thou shall not interpret claims in either the British or the German fashion, but somewhere in between, consistent with causing the maximum possible confusion and uncertainty to all concerned"

Or, as I once explained Formstein to the Australian Institute (to a possibly familiar tune):

Oh, the latent
In my patent
Exclusivity defined
Now has bound'ries quite dilatant
Thanks to Germany's Formstein

Merpel is correct; the number of "Epilady"-type cases is small. However, we as patent attorneys always think of the worst possible scenario when we advise our clients, because, if we don't, the law of another Irishman, a Mr. Murphy, might just ensure that our very worst nightmares come to pass. To do otherwise is professionally irresponsible. We're a bit like insurance salesmen - we think that the risk of a problem is tiny, perhaps even vanishingly small, but it is not zero.

It's like our trying to advise an outraged account manager who comes to us with a "patent" that covers everything out to the orbit of Neptune. The "patent" is, of course, a published, unexamined application. Worse, it is usually a PCT application with lack of unity, meaning that there is as yet no search report. The manager naturally wants absolute certainty RIGHT NOW, because he's going to present his new baby to [name of well-known brand owner deleted] tomorrow. What can you do? You can only assume that, no matter how ridiculous the claim and how unlikely it is that it will get granted (which you will tell the manager), you can offer him no certainty.

A cautionary tale from a previous life. My then employer once bought a US patent, because it did enshrine a very good product. However, the main claim mentioned polymer particles of a minimum size of 0.01 Angstroms (no, do not adjust your vision, you really did see that - polymer particles the size of an electron, a feat of technological wizardry that ranks with Genesis 1:1). What happened was that a patent examiner had left the USPTO and gone into a private practice firm. He had never drafted an application in his life. His first attempt came up for examination before an old buddy, who, wishing to help him in his career, passed it through to grant with barely a glance. And of course revocation of a US patent involves costs that look like the GNP of Belgium (I nearly said Ireland, but the GNP of my native land probably wouldn't buy a cup of tea in Brussels nowadays). The most absurd things can get through, and we have to allow for the possibility. Ditto legal cases. Roll on a single European patent system with a single universal infringement/validity court procedure".