European IP Bulletin, Issue 99

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In Depth


UK Supreme Court Provides Guidance on “Making” a Product
In Schütz (UK) Limited v Werit (UK) Limited [2013] UKSC 16 the UK Supreme Court has provided guidance on the meaning of “making” a product, as opposed to repairing a product, in the context of patent infringement disputes.

Osteoporosis Patents Found Invalid
Two osteoporosis treatment patents have been found to be invalid following the ruling by the High Court of England and Wales in Hospira UK Ltd & Anor v Novartis AG [2013] EWHC 516 (Pat). The Court found that none of the claims were entitled to the claimed priority and were invalid on the ground of insufficiency owing to the open-ended construction of certain claims specifying dosage and administration intervals.

Angiogenesis Patent Found to be Valid by the Court of Appeal of England and Wales
In Regeneron Pharmaceuticals Inc. and Bayer Pharma AG v Genentech Inc [2013] EWCA Civ 93 the Court of Appeal of England and Wales found that a patent for therapeutic agents for the treatment of non-cancerous diseases associated with blood vessel growth was valid and infringed.

Civil Litigation

The Jackson Reforms Come Into Effect
The Jackson reforms, the result of a one-year review of costs in civil litigation by Lord Justice Jackson, were largely implemented on 1 April 2013. The reforms present the most radical changes to the civil litigation system since the introduction of the Civil Procedure Rules in 1999 and are aimed broadly at controlling the costs of civil litigation.


CJEU Ruling Confirms Live Internet Streaming of TV Broadcasts Infringes Copyright
On 7 March 2013, the Court of Justice of the European Union (CJEU) ruled in ITV Broadcasting Ltd and others v TV Catchup Ltd [2013] C 607/11 EUECJ that live internet streaming of terrestrial TV broadcasts constitutes a “communication to the public” within the meaning of Article 3(1) of the Copyright Directive. Without broadcaster permission, such retransmission may infringe broadcast copyright.

Trade Mark

EU General Court Upholds Partially Successful Opposition to CAFFE KIMBO
In Bimbo, SA v OHIM [2013] T-277/12, the EUGC has upheld a decision of the Board of Appeal of the Office for the Harmonization of the Internal Market (OHIM), allowing a Community trade mark (CTM) application for the figurative mark CAFFE KIMBO to proceed to registration in relation to a limited scope of goods. The General Court confirmed that while the signs at issue were similar, the opposition could only succeed in relation to those goods for which the prior mark BIMBO was well known.

Survey Evidence Admitted in Trade Mark Dispute
Interflora Inc and another v Marks and Spencer plc and another [2013] EWHC 273 (Ch), 21 February 2013 is another example of the application of the Court of Appeal of England and Wales’ two step test to assess whether survey evidence should be permitted in trade mark infringement proceedings. The test requires the party seeking to rely on the evidence to
show that it i) will likely be of value at trial and ii) the costs involved are justifiable.

Data Protection

New “Bring Your Own Device” Guidance Published by Information Commissioner’s Office
On 7 March 2013, the Information Commissioner’s Office (ICO) published new guidance on “bring your own device” (BYOD), which explains the risks organisations must consider when allowing personal devices such as smart phones, laptops and tablets to be used to process work-related personal information.