For the half-year to 31 December 2015, the IPKat's regular team is supplemented by contributions from guest bloggers Jani Ihalainen, Nikos Prentoulis and Mark Schweizer.

Birgit Clark is on Sabbatical till the end of the year

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Friday, 27 November 2015

Court of Appeal dismisses Rovi's claim construction attempt in battle with Virgin

Identification or information signals
go unnoticed by the AmeriKat
"Interactive special events video signal navigation system".  If those collection of words don't get you excited, then you probably have not been following the Rovi v Virgin Media litigation.  Yesterday, the Court of Appeal handed down its decision in Rovi Guides Inc v Virgin Media Ltd & Others [2015] EWCA Civ 1214 dismissing Rovi's appeal.  The litigation which started back in 2012, focuses on Rovi's patent - European Patent (UK) No 0, 862,833 - which relates to interactive video communications and viewer-controlled selection of programming information.

Rovi's invention allows the television viewer to keep up to date of events/programs in real time which are currently available or will be (instead of scrolling or manually navigating to the information).  The way the system does this is by using two signals - an identification signal and an information signal.  The former signals that information is available.  The identification signal may also include data that identifies an icon or text which is then displayed on the screen and alerts the view to the availability of information contained in the information signal.  If the user presses the relevant button, the information signal is processed and the information is displayed on the screen. 

Last year, Mr Justice Mann held that Rovi's patent was invalid for obviousness over Florin, an Apple PCT application published on 5 January 1995.   Rovi successfully obtained permission to appeal on some its grounds, all of which were abandoned by the time it got to appeal.  Rovi therefore sought permission to appeal from the Court of Appeal on one additional ground  - whether the judge was wrong to find lack of inventive step in respect of claim 3 (and corresponding process claim 28).  Claim 3 is a product claim dependent on claim 2.  Although the Court of Appeal granted permission to appeal on this ground, after 15 pages the appeal was eventually dismissed.  "Close, yet so far away...." chimes Merpel. 

The issue that preoccupied the Court of Appeal was one of claim construction.   The construction at issue was of the critical additional feature set out in item (ii) of feature C of Claim 3 below (underlined):
"Claim 3 
A system according to claim 2, wherein said first identification signal comprises: 
i. data indicating the availability of said first information signal; 
ii. (a) data defining an icon or textual matter alerting a viewer to the availability of information or (b) data enabling access to such an icon or textual matter as may be already stored on said computer; and 
iii. data defining said preselected times and said predetermined time increments. "
Mr Justice Mann held that this integer was to be construed as meaning that data in the identification signal must trigger or invoke the icon, but that there was no requirement for a specific pointer or address field be in the signal to identify where the relevant icon could be found.  It was enough if the signal itself, or some data in the signal, called for a icon to be put up on the screen.  This was supported by Virgin's expert witness.  On appeal Rovi's counsel argued that the integers of claim 3 required a pointer to tell the set top box where to find the appropriate icon in its memory.  Claim 3 therefore added more than Claim 2 and was therefore not obvious over Florin and the common general knowledge.  However, the Court of Appeal agreed with Mann J's construction.  Following this construction, the skilled team implementing Florin would arrive at a system in Claim 3 and it was therefore obvious.    

Writing the leading judgment, Lord Justice Floyd highlighted two legal points on the construction of patent claims.  First, it cannot be assumed that it was the patentee's intention that optional features described in the specification have been translated into requirements of the claim (Nokia v IPCom [2009] EWHC 3482).  Second, that the inventor's purpose is not the be-all and end-all - one still must be concerned with the meaning of the language used (Virgin Atlantic v Premium [2009] EWCA Civ 1062). 

Because the focused of Rovi's appeal was squarely on a dependent claim, the Court highlighted that the
 "...frequently deployed canon of construction is that dependent claims would normally be expected to add technical subject matter to what is claimed in the claims from which they depend. Patent attorneys would not normally be expected to go to the trouble (and sometimes expense) of adding extra claims if they were no narrower than those which precede them. However, the judge’s construction did not mean that claim 3 had the same scope as claim 2. It is now common ground that feature C(iii) was not implicit in claim 2. Feature C(i) on the other hand was implicit. In these particular circumstances I can see no reason at all why the skilled person should assume that either option in feature C(ii) was intended to add something to claim 2. In truth claim 3 sets out to list explicitly the contents of the identification signal. That is not something which is attempted in claim 2. I would not attach weight to the fact that, on the judge’s construction, feature C(ii)(b) did not itself add anything of substance to claim 2.
Whilst admiring its sophistication, I am not persuaded by Mr Meade’s “mis-match” submission about options (a) and (b) in feature C(ii). I do not accept that anything is to be drawn from the fact that option (a) of feature C(ii) requires extra data capacity, and therefore something different from claim 2. I think it is unrealistic to suppose that the skilled reader would reason that, because option (a) adds something to claim 2, then he should assume that option (b) is also seeking to do that as well. I accept Mr Mellor’s submission that the skilled person is more likely to assume that the patentee is seeking to cover, in explicit language, all ways he can think of arriving at a prompt on the screen."

The patentee’s purpose is of course a powerful guide to the construction of patent claims. One must, however, be careful to match up any purpose one derives from a reading of the specification with the claim or claim feature under discussion. This is not always straightforward. The purpose on which Mr Meade relies arises out of the description of content-specific icons in paragraph [12] of the specification. The skilled person would, so the argument runs, infer that the patentee had chosen the language of feature C(ii)(b) specifically in order to limit this claim to an arrangement capable of providing this functionality. I see no reason why the skilled person should follow this line of reasoning at all. Rather I consider that the skilled person would infer that the patentee had chosen entirely general language which was capable of encompassing such an arrangement, but was not limited to it.

It is true that the judge said that the point about multiple icons appeared to have fallen away. Given that claim 3 was not high on the agenda of issues at all until a very late stage in the trial, I am not surprised that he had gained that impression. Certainly, paragraph [12] of the specification does not seem to have featured strongly in the submissions or evidence until then. Moreover, it is possible that what the judge meant was that it was not contended by Rovi that claim 3 was limited to a system with multiple icons. Mr Meade accepted before us, and I believe before the judge, that a system with a pointer to the address of a unique icon would still be within claim 3. But I have reached a very firm conclusion that paragraph [12] does not help Rovi or save claim 3 from a finding of obviousness. So, if the judge indeed misspoke, it makes no difference to the outcome.

I do not think, therefore, that the judge overlooked or misunderstood Rovi’s arguments about the construction of claim 3. He considered and rejected them, and in my judgment he was right to do so. "
The AmeriKat has not had time to fully digest the decision, but wonders how much the "last minute" nature of Rovi's inventiveness argument on Claim 3 had actually played in the judge's mind.  Although he dealt with the point on the record, had the feature really been that inventive one may have expected the patentee to have dealt with it a little earlier than on day 6 of the trial.   Indeed, the judge observed that it was not always clear throughout the case where the dispute about the feature lay.  The Court of Appeal, at paragraph 45 (the penultimate paragraph above), plainly had sympathy for the judge on this point. 

Looking back over this GreeKat shoulder… Part I: Thou shall plain pack no matter what you sell

One of the advantages of being part of the lively IP blogosphere is the opportunity to discuss with good friends and colleagues what’s keeping them busy, what alarms them and what they are looking forward to. Having entered into and gained from such interesting discussions pertaining to the universe of brands this past year, and as his IPKat visit draws to a close, this GreeKat thought to write a series of posts, about the most thought-provoking issues passing through his newsfeeds or e-mail inbox. 

First up, is the curious and expanding case of brand evaporation in consideration of public texture consumer interests (whether actual or not). This post will cover the product plain packaging trend.  It will be followed by another offering a thought or two on how brands, from lifestyle dictators, may be en route to exile from consumer life, ‘cleansed’ and re-defined by a new regulatory paternalism.

Tobacco has been the first terrain of plain packaging initiatives. In December 2012, Australia was the first (currently still the only) jurisdiction to introduce tobacco plain packaging, on the premise that it would potentially bring down tobacco usage.  “Plain” may also not be an accurate description in view of the graphic visual elements cigarette packs are to bear. 3 years on there is still considerable debate about the effects of this regulatory initiative.  In the meantime, tobacco plain packaging is due for implementation in Ireland and the UK on 20 May 2016, and is under formal consideration in a handful of other countries.  Next month, the English courts will hear the tobacco industry’s challenge against the UK tobacco plain packaging scheme.

The IPKat has hosted several posts, including this, this and this, as well as one on the economics of cigarette packing, on the various arguments in favour or against tobacco plain packaging. Lord Hoffmann, a former Law Lord, Honorary Professor of Intellectual Property Law at the University of London and Chair of the Institute of Intellectual Property Research Council – well-known to the readers of this blog – issued two opinions in which he concluded that plain packaging constitutes an unlawful deprivation of property. This Kat has but nothing to add. He does feel though that there should be a distinction between regulating advertising and curtailing what the CJEU termed “normal usage” of trade marks (In BAT, C-491/01); that trade marks, comprising “unacceptable” (whatever this means, which is another big discussion) advertising slogans can be tackled via absolute grounds for refusal; and that it would be slightly contradictory that such a mark were registered but then banned from being used for the very reason it should have been rejected. What strikes him the most, though, is the possible expansion of plain packaging initiatives into other areas as well.

Those within the IP community arguing against plain packaging warned that it does not revolve only around tobacco, as its underlying simplistic rationale (i.e. that trade marks are a billboard to promote unhealthy goods) is essentially open-ended. And so it seems to be: back in 2012, a MARQUES Workshop (reported here by the Class 46 blog) discussed a possible spill-over of plain packaging to the alcohol and food industries.

Indeed, Indonesian authorities are considering plain packaging for alcohol, in Australia, talk of  plain packaging for fast food has begun, and similar initiatives are discussed in connection with sweets and the fight against obesity. Pharmaceuticals may be another sector of plain packaging initiatives, which kind of puzzles this GreeKat, as he would have thought that pharma trade marks would rank high in the list of not extremely attractive trade marks, while the usual intervention of pharmacists would hinder the kinds of marketing techniques used, e.g., in relation to toys (another category discussed for plain packaging based on this story).

The above reveal a rather different setting about the relationship between trade marks and consumer protection: we usually argue about whether trade mark law includes a consumer protection aspect or not and ask whether by protecting trade mark rights we also attend to consumers’ interests and welfare (the IPKat has a very informative post on this). We also argue about how the protection of consumers, particularly of sensitive groups, such as children, requires restrictive regulatory intervention via consumer laws, and we discuss whether particular measures are efficient and proportionate. But plain packaging seems to be rooted on the idea that trade marks harm consumer welfare and that consumers are somehow better off if they appear much less on the goods.  Does this mean that trade marks, traditionally origin and guarantee indicators and tools to reduce consumer search costs, are unwanted for certain types of products or services? And if so, can we draw that border line?

Farewell to Jeremy, and thank you, from the IPKat team

Jeremy Phillips, who retires from this blog to
a unanimous chorus of praise, gratitude and affection
Following Jeremy’s post announcing his retirement from the IPKat blog, the entire blog team wishes to extend an inadequate but very heartfelt thank you to Jeremy for the endless work he has put into the blog for the last 12 years, day after day.
It is self-evident to everyone who has read or interacted with the blog that, without Jeremy’s constant efforts, the IPKat could never have continued to grow and flourish as it has done. We know the community of readers and the IP community at large will join us in wishing Jeremy the very best in his retirement.
Having enjoyed yesterday’s retirement celebrations with Jeremy, today the IPKat blog team reverts to business as usual. The IPKat blog is a collective effort, and the members of the team are committed to continuing to provide news, commentary and analysis on all aspects of IP, with the continuing support of all of our readers, commenters, correspondents and guest contributors.
The IPKat and Merpel are as eager as ever to hear from you the readers, whether it is to draw their attention to news, case law, information about IP events, guest post ideas and submissions, or feedback on the blog and its contents. The IPKat’s email address remains unchanged (, as does Merpel’s (

Thursday, 26 November 2015

Goodbye, good luck!

Saying goodbye is never easy, and this is particularly so in the case of my stepping down from the IPKat blogteam in order to sample the hitherto forbidden fruits of retirement.   My fellow Kats have been a wonderful resource for me -- full of ideas, endeavours and unexpected perspectives on topics on which I have pondered so often that they were in danger of becoming part of my intellectual furniture.  I shall miss their camaraderie, their sparkle, their wit and their carefully crafted rage.  I know that they will carry on our collective work and feel sure that they will lift the blog to new levels of excellence (or indeed, a cynic might say, to any level of excellence).

I shall miss our readers too.  Many have posted comments, in their own names, under cover of anonymity or though the assumption of pseudonyms.  Others have engaged me in correspondence, whether to share their fears and secrets, to inform me of forthcoming legal rulings, to ask a variety of favours or, worst of all, to crow triumphantly over the discovery of an error or – perish the thought – a spelling or grammatical error. 

But most of all I shall miss Merpel …


Down the Tubes: H&M Breached Settlement Agreement by Infringing Patent

Cats are not known for their adherence to agreements, especially when their pet humans neglect their basic needs, such a belly rubs and the distribution of dry foodstuffs. Clearly, this bubble of contractual disregard only extends so far, and plays a big part in the expedient and less expensive rectification of any legal disputes between parties. When you agree to something, you should stick to it, but there are some grey areas and possible (unintentional) overlap post-settlement of any disputes. H&M were faced with such a scenario after an earlier settlement of a legal kerfuffle, decided by the High Court only last week.

The case of Stretchline Intellectual Properties Ltd v H&M Hennes & Mauritz UK Ltd [2015] EWHC 3298 (Pat) dealt with a UK patent concerning the tubular fabric in underwired garments such as brassieres [patent no. GB2309038], owned by the claimant Stretchline. They had brought a claim against H&M in 2010 for infringement of the patent, and after some judicial give-and-take the matter was settled in late 2011. Nearly two years later Stretchline initiated these proceedings, alleging that H&M were, yet again, selling infringing brassieres, including a claim for breach of contract in relation to the aforementioned settlement agreement. H&M alleged that the garments sold were not infringing, and that the patent was invalid. This defence was quickly struck out on the basis that the settlement agreement precluded them from pursuing such a claim, which lead to Stretchline only continuing with a claim for breach of contract.

Some penetration barriers cannot
prevent creatures with claws...

The focus of the patent was its first claim: "a method for making a tubular fabric comprising providing a support yarn and an elastomeric yarn; characterised in that a fusible yarn is also provided and in that the yarns are formed into a tubular fabric whereby the fusible yarn is arranged within the fabric tube so that it is capable of forming a penetration barrier." (emphasis added)

As highlighted, Stretchline alleged that the garments sold by H&M (bras called Devsel, Rimteks and Takefast) incorporated this feature, while H&M contended they did not, and what a 'penetration barrier' actually meant under claim construction. 
Per the precedent set in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKHL 46 (and other cases since), the question is "...what the person skilled in the art would have understood the Patentee to be using the language of the claim to mean"

Justice Carr, handing down the High Court's judgment, quickly set out that, as there was no contention between the parties as to who the 'skilled person' in the art would be, that it would encompass an individual who has undergone technical education and training in the field of textile technology, additionally understanding the subject matter dealt with in the patent in question.

H&M argued that, in the light of common general knowledge at the priority, the patent would be held invalid. Two expert witnesses were brought forth to discuss what was common general knowledge at the time, and although they both disagreed as to opinion, their differences were seen as minor. Justice Carr finally settled that "...[the] skilled person would have known at the priority date that it would not be practical to form a discrete layer from fusible yarn in a woven fabric", especially since it was 10 times more expensive than the patented counterpart used by Stretchline.

...although they can add some desired comfort

Ultimately, this argument was reject by the judge, as "...the Settlement Agreement precluded H&M from raising the issue of invalidity. It is clear from the judgment of Kitchin LJ... that H&M is precluded from raising, in its defence, a squeeze between non-infringement and invalidity"

After his contemplation on the common general knowledge of the material subject matter, H&M's alleged reliance on that knowledge, and the process and product descriptions (PPDs) provided by both parties, Justice Carr moved onto the question of infringement. In his mind, on the balance of probabilities, H&M's garments would infringe the patent. Their inclusion of fusible yarn to bond fabric together, which, if subsequently heated and cooled, would bond the filaments and yarn to form a resistive fabric layer against penetration within the meaning of claim 1. Images of H&M's garments confirmed this, although not for 100% of the included fabric. He
 saw therefore that H&M had infringed the patent, and subsequently breached the settlement agreement. 

One can have sympathy for H&M, as from a more positive stand-point, the inclusion of the fabric layer could have been a matter of omission or carelessness, but this only highlights the need to keep any agreements in mind in the production of future products incorporating or needing similar functionality. Nevertheless, the case is an interesting one, and for many of us male Kats, at least shows some insight into the world of women's garments in more depth.

Wednesday, 25 November 2015

Wednesday whimsies

Today the Kats, aided and abetted by the hospitality of law firm Veale Wasbrough Vizards in their London office, held this year's IP  Publishers and Editors Meeting. A gathering of around 50 good souls assembled to hear keynote Peter Groves' opinions on various issues including accuracy in expressing oneself (he's in favour), split infinitives (he's against) and subjunctives (he's a recent convert, it seems). Peter ended with a stirring plea for clearer and more generous contracts for authors, whose remuneration -- at least when writing IP articles and case notes -- is not what one might call generous.  More interesting than the end of Peter's talk was, for this Kat, the beginning, when he observed that he is descended on the paternal line from Matthew Groves.  Was this the Matty Groves, this Kat wondered, his mind instantly homing on on the 1969 Fairport Convention version of this epic song, with vocals by the late lamented Sandy Denny (which you can enjoy here on YouTube).

Tomorrow's JIPLP Conference. If you are not attending the sell-out Journal of Intellectual Property Law & Practice 10th Anniversary conference (programme here), there;s some good news.  The event's hosts, Freshfields Bruckhaus Deringer, have kindly organised a live link which you can enjoy by clicking and deploying the password JIPLP10.  This link is expected to go live at 9.30 am GMT on Thursday 26 November.  Accessing this link via Google Chome is recommended, especially if you are hoping to enjoy the 'full screen' facility.  For those who are attending, here's a reminder that there's a Twitter hashtag of #jiplp10.

Around the weblogs If you are a UK tax-payer, business or prospective inward investor, the contents of today's "UK Spending Review" (a.k.a. the "Autumn Statement") are bound to be of concern.  Over on the IP Finance weblog intellectual property taxation specialist Anne Fairpo gives a swift and simple account of it. A day earlier on the same weblog, Rob Harrison invited readers to participate in the World Intellectual Property Review survey of FRAND licensing.  Ben Challis, on the 1709 Blog, writes up a potentially depressing decision for US internet service providers on the possible scope of their liability in the BMG v Cox litigation. The jiplp weblog lists the contents of this December's JIPLP and also hosts founder editor and IPKat blogmeister Jeremy's Farewell Editorial.  Finally, if you have ever wondered what a MARQUES "meet the trade mark judges" event is like, Christian Tenkhoff's report on a recent one in Munich is worth taking a look at. Over on the Aistemos blog, there's a most informative piece of fact-and-figure work on the apparent disjunction between the IP portfolio holdings of Nasdaq-listed companies and their capitalisation.

Some end-of-year reading ...

In case you were wondering what to do with your precious leisure time over the end-of-year period when things get a bit quiet, here are some recent intellectual property publications that might take your fancy ...

US Patent Law for European Patent Professionals, by Audrey Nemeth, is an extremely handy volume for those of us who, being based in Europe, are obliged to keep an eye on developments in the United States on a piecemeal basis but who do not have the luxury of the time to gain a proper appreciation of this complex, important patent culture -- a culture that is so alien and out-of-step in the eyes of those from that small insignificant domain called The Rest of the World.

This is what the publishers say about the book:
This is the first book that has been designed to make communication between European and US patent law professionals more comprehensible.

It explains exactly what is required at every stage of a patent proceeding in the United States, helping European patent professionals understand and act upon the facts. It ensures that both parties have a common understanding of basic US legal terms, and that you – a EU practitioner – will understand the available courses of action for the most common procedural scenarios.

United States patent law, like the European Patent Convention (EPC), is based on a hierarchical code of statutes, regulations and administrative guidelines. However, there are numerous important distinctions, which you’ll need to know if you are looking to successfully protect and leverage intellectual property in the United States.

This highly practical and detailed work is divided into five main parts, covering the basics of US patent law, prosecution of US applications, US patent and post grant proceedings, procedural elements, and advanced topics.
The author, who is Europe-based herself, does not merely describe the framework of the US system and its manner of operation; she leads readers towards the US from the elements of the European system which she can rely on as being familiar to readers, or at least resonating with them. That is not to say that this book is of no value to non-Europeans, since its clear, concise and undramatic description and explanations will benefit anyone who wants an overview of the US law -- especially in its post America Invents Act phase -- and who can set aside a relatively modest amount of time to sit down and read it.  The text is nearly devoid of footnotes, but references to the patent statute (35 USC) are more than adequate for anyone who wants to measure the author's text against the primary legal source.  By the way, it's not a formal comparative analysis of US and European law; that would require a far longer book, one which would not match the author's self-declared target.  Nor is it, or does it seek to be, an infringement litigation manual.

The chapters on “Responding to Office Actions” and “What Is a Final Rejection and How to Respond” are particularly handy, as are the bits that tackle procedural rules and practice and all that nerdy detail of how time limits are calculated, how you can file by fax and post and how to pay fees by credit card.

Bibliographic data: hardback, xxviii + 215 pages. ISBN 9789041160447. Rupture factor: low. Book's web page here

You can also read Audrey Nemeth's blogpost introducing this book on the Kluwer Patent Blog here.


IP and Other Things: a Collection of Essays and Speeches, by Katfriend and judge-turned-academic Sir Robin Jacob, is evidently not the author's last word on the subject since the book's web page describes it as the "First Edition". Considering the vast number of occasions on which this popular and approachable personality has essayed and speeched, it may be expected that there are many further editions to come.  It's a handsome volume but one which will inevitably disappoint any of its readers who have had the opportunity of listening to Sir Robin in person. This because the medium of print cannot capture the wit, the spontaneity, the force and the sense of being utterly and unchallengeably right which have characterised so many of Sir Robin's finest performances over the years. It is hardly the fault of either the author or the publisher, but the evidence is there for all to see.  With all this attractions, this well-produced volume just sits on the desk and waits for something to happen.  It doesn't argue; it doesn't fight; it doesn't let slip the occasional word that you might prefer your aged and saintly grandmother not to hear.  It doesn't do anything unless you turn the pages -- and to enjoy it at its best you have to read the purple passages as Robin would have delivered them in the first place: with power and with passion.

According to the publishers (Bloomsbury, who also publish Harry Potter):
The Rt Hon Professor Sir Robin Jacob has been variously a leading member of the Intellectual Property Bar, a High Court judge and, as Lord Justice Jacob, a judge in the Court of Appeal of England and Wales [but don't let this put you off, says Merpel]. His primary area of expertise is intellectual property (IP) rights. He chose to leave the Court of Appeal in March 2011 to take up his current position as the Sir Hugh Laddie Chair in intellectual property at University College London. He still sits occasionally in the Court of Appeal and is a door tenant at 8 New Square. These essays, selected from his published and unpublished writings and lectures, illustrate the breadth of his learning in IP and other matters. They are written in typically straightforward and entertaining style and, in the case of the older essays, a commentary of what has happened since they were first published. They will be of interest to any lawyer, law student or scholar interested in the development of IP law in the past quarter century.
Definitely worth taking a peep!

Bibliographic data: x and 523pp, hardback. ISBN 9781849465953. Price £65. Rupture factor: medium [though there might be occasional grounds for apoplexy ...] Book's web page here.


Owning the World of Ideas: Intellectual Property and Global Network Capitalism by Matthew David (Durham University, UK) and Debora Halbert (University of Hawaii at Manoa, USA) is, as one might imagine from the title, a book that is addressed at the more radical end of the market.  The book's web-blurb explains:
Formally, ownership of ideas is legally impossible, and can never be globally secured. Yet, in very real and significant ways these limits have been undone. In principle, ideas cannot be owned, yet, undoing the distinction between ideas and tangible manifestations, the distinction which underpins the principle, allows the principle to hold even whilst its meaning is hollowed out.

Post-Cold War global network capitalism is premised upon regulatory structures designed to enforce deregulation in global markets and production, but at the same time to enforce global regulation of property and intellectual property in particular. However, this roll-out has not been without resistance and limitations. Globalization, the affordances of digital networks, and contradiction within capitalism itself - between private property and free markets - promote and undo global IP expansion [if you, like this Kat, have not previously encountered the word "affordance", it means "a relation between an object or an environment and an organism that, through a collection of stimuli, affords the opportunity for that organism to perform an action. For example, a knob affords twisting, and perhaps pushing, while a cord affords pulling"].

In this book David and Halbert map the rise of global IP protectionism, debunk the key justifications given for IPRs [or at least make an effort to do so: not every reader of this weblog may agree], dismiss the arguments put forward for global extension and harmonization; and suggest that roll-back, suspension, and even simply the bi-passing of IP in practice offer better solutions for promoting innovation and meeting human needs.
This book is a must-read for anyone who thinks that there is a meeting of minds in the great debates over the justification and functional utility of intellectual property rights.  Read the text, look at the premises, run your eyes over the extensive bibliography and you will soon see that those who love IP rights and those who see them as a threat are arguing about a different IP and a different reality.

Bibliographic data: xv + 118 pp. Hardback. ISBN 9781473915763. Price £45. Rupture factor: minimal. Book's web page here. Oh, and if you're wondering, the book does have a copyright notice ...


MindWealth, by William A. Jones, is a book written by a true and dedicated IP enthusiast. Again, the title tells you as much about the writer as it does about his subject, since it bears the small-print subtitle "Building Personal Wealth from Intellectual Property Rights".
Intellectual property rights (IPR) are a force for good. People could harness their power more. The book describes the UK and global environment in which people can build personal wealth from IP. At its core is the statistic that approximately 70 per cent of a firm’s value is in its IP, which is generated by people. Changing the environment would help more people build personal wealth from IPR. That includes a better industrialization environment that delivers national competitive advantage through IPR. Author William Jones describes the ecosystem within which people generate and exploit IPR, using many examples, snapshots, and observations, as well as structured disciplines. The book takes a look at this ecosystem through the lens of the individual and IPR – and more specifically, the underpinning idea is that people can build their wealth by ensuring that IP works for them. It highlights factors that can influence an individual’s ability to be successful. It suggests new ideas to provide a better platform for building personal wealth. 
The book doesn’t fall neatly into any genre of, for example, investment, economics, law, or politics [you can say that again, says Merpel! It is a text with many strands: there's legal and commercial advice, war stories, personal reflections and the wisdom that can only be distilled from years of experience in the field]. Rather, it integrates or synthesizes a different position and new genre which exists above or to one side of these.
If you love, or merely like, IP, and if you want a comforting read that will reinforce most of your cherished opinions and beliefs rather than threaten them -- and if you want a tome that will last you right through the quiet end-of-year period, this book, published by AuthorHouse, could be the book for you.

Bibliographic data: xxxv + 576 pp. ISBN 978 1 5049 4120 4. Paperback. Rupture factor: considering that this is a paperback, not inconsiderable. Book's web page here.

YouTube to defend clear examples of fair use, even in court

Nedim Malovic
YouTube to litigate copyright infringement/fair use actions on behalf of users harassed by subject to inappropriate DMCA takedown requests?

This is apparently what is going to happen soon, as IP enthusiast Nedim Malovic (Stockholm University) explains.

Here’s what Nedim writes:

“Over the past few days there have been interesting copyright-related developments taking place in the YouTube world. In particular, Google Director of Copyright, Fred von Lohmann, wrote a post published on the Google Public Policy Blog, in which he announced that YouTube will now take action to defend (in court if necessary) what he called “some of the best examples of fair use on YouTube”.

Developed via case law, the fair use doctrine is enshrined in §107 of the US Copyright Act, and provides that:

“the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
Fred von Lohmann
(1) the purpose and character of the use [with a relevant consideration being whether the use at hand is transformative], including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

Besides the possibilities offered by joining the ContentID programme developed by YouTube itself, similarly to other Google products relevant rightholders can seek removal of content from YouTube on copyright grounds by submitting a DMCA takedown request [if one takes a look at the Google Transparency Report, the numbers are impressive: overall Google appears to receive approximately 1,500 takedown requests each and every minute].

According to Mr von Lohmann, in some instances DMCA takedown requests have been
YouTube feline sensation
submitted in relation to videos that made use of existing content in new and transformative ways, and amounted for instance to a parody or critique. In other words, these requests related to videos that were protected as fair use under §107.

Google’s announcement that it will defend content uploaded onto YouTube by users/creators is rooted within the idea that “creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it ... In addition to protecting the individual creator, this program could, over time, create a “demo reel” that will help the YouTube community and copyright owners alike better understand what fair use looks like online and develop best practices as a community.”

In any case, the territorial scope of Google’s initiative will be limited to the US. It will be interesting to see when – and perhaps even more relevant: how frequently – Google takes action to defend its user’s rights under §107.” 

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