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IPKat is here with your weekly tour of the IP blogosphere!
A guest post on Written Description by Jason Reinecke reviews a forthcoming article in the Georgetown Law Journal, which asks the question "Can Patents restrict free speech?" (and answers that they do). In the article, the author Professor Tun-Jen Chiang argues that "patents that restrict speech are not exceptional, they are routine", particularly patents relating to methods of advertising, communication and sending or receiving information over the Internet. The authors cites US 6311211 which relates to a method for delivering electronic advocacy messages and therefore, it is argued, restricts political speech, and US 8357489 which claims a method of diagnosis comprising communicating test results to a patient, and therefore it is argued, restricts the free speech of a doctor in receipt of such test results.
Professor Sean Tu (West Virginia University) and Chris Holt (LexisNexis IP) provide on Patentlyo a new data set and metric for US Patent Examiner activity. The data relate to the total number of office actions issued by every active Examiner from January 2012 to June 2017. To analyse the data, the authors use an Office Actions per Grant Ratio (OGR) metric, which divides an Examiner’s total number of Office Actions by the number of issued patents. The data reveal differences between the technology fields and Examiners at different levels of seniority. Full analysis is provided in a corresponding paper.
IPwatchdog considers the abuse of Orange Book listings by branded pharmaceutical companies, a form of patent abuse relating to drug patents covering medicines subject to the Drug Price Competition and Patent Term Restoration Act of 1984, or "Hatch-Waxman Act".
"Orange" Book KatCopyright
The CopyKat on The 1709 blog reports on the UK Governments release last week of its Industrial Strategy Plan to tackle on-line copyright infringement. CopyKat reviews some of the measures soon to come into force.
IP Draughts highlights a recently published report on University spin-outs by Anderson & Law. The report looks at funding patterns between 2011-2017 from the seven UK research councils and Innovate UK, and measures this against the creation of UK university spin-out companies, broken down into different technology sectors. The report cautiously concludes that the spin-out sector appears to be working, given that nine in ten UK spin-outs survive beyond five years, a higher rate than the overall success rate of UK start-ups. The report also provides a number of recommendations to the UK Government, research industry and Universities. One interesting recommendation is for Universities to consider introducing a clause in academic contracts that allows academics to take a break from their academic career to see if they are able to commercialise their research.
MARQUES Class 46 reports on the recent developments in the German "Black Friday" battles. The dispute concerns a German trade mark registration for "Black Friday", the Hong Kong-based owner of the trade mark (Super Union Holding Ltd), and PayPal. Enforcement of the trade mark by Super Union Holding has led to many German retailers using alternative phrases to "Black Friday", such as "Super Friday". PayPal and others brought cancellation proceedings against the trade mark on the grounds that the phrase "Black Friday" falls into the public domain and must be must be freely available to all market players to use for sales promotions and in advertising. The German PTO ruled that the term lacks distinctiveness and thus is not suited to identify commercial origin.
"Black" Friday KatSPCs
On The SPC blog, Nicholas Fischer and Andrew Hutchinson (Simmons & Simmons) report on the latest referral to the CJEU by the UK Court of Appeal seeking clarity concerning the correct interpretation of Article 3(a) of the SPC Regulation, particularly what it means for a product to be ‘protected’ by a patent.
Kluwer Trademark Blog provides the second installment of its analysis of the draft withdrawal agreement published by the EU Commission setting out a potential framework for trade mark and design rights (IPKat post). This second post looks at the implications for the holders of design rights.