http://ipkitten.blogspot.com/2024/06/never-too-late-if-you-missed-ipkat-last_17.html
If you’ve been too busy to keep up with the IP news, here’s the summary of what you missed last week:
Patents and Designs
| Photo from MolnarSzabolcsErdely via Pixabay. |
Rose Hughes responded to an article in the CIPA Journal (May 2024) that proposed a new test for inventive step using AI. She argues that the proposed AI-derived measurement of semantic similarity between the claims and the prior art would constitute a vast oversimplification of patent law.
Rose Hughes commented on the decision from the USPTO Appeals Review Panel in Ex parte Chamberlain, which reaches a remarkable conclusion on written description for a broad functional antibody claim. The Panel found that claim language defining an antibody as means-plus-function, specifically “means for binding a target,” was neither indefinite or lacking in written description.
Trade Marks
Nedim Malovic expanded on his comments at the EUIPO Case Law Conference 2024. Based on the data published by the EUIPO from the past three years and the case law from the EUIPO Boards of Appeal, he concluded that non-conventional marks remain difficult to register, mainly due to the difficulties with demonstrating inherent distinctiveness.
Katfriend Patricia Trofin (Hogan Lovells) discussed the recent General Court decision (T‑181/23) on the relevant approach to be taken in cases involving bad faith, including the relevance of the proprietor’s knowledge of the bad faith applicant’s prior use. The decision confirms that mere use of a sign does not automatically imply that third parties were aware of its use – unequivocal evidence of awareness is required. Furthermore, knowledge of prior use by third parties is just one factor; it alone does not establish bad faith.
Copyright
Eleonora Rosati reflected on the ruling from the Paris Court of Appeal about the authorship of some pieces of contemporary art. The evidence showed that Daniel Druet materially realized the sculptures, while Maurizio Cattelan came up with the concept and was responsible for their staging. Druet was unsuccessful for procedural reasons, but the case prompted some thoughts on AI authorship.
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