Never Too Late: If you missed the IPKat last week!

http://ipkitten.blogspot.com/2024/04/never-too-late-if-you-missed-ipkat-last.html

If the long weekend left you short on time to read the IP news, don’t worry, here’s the summary of the stories you missed last week.

Patents

Photo by TootSweetCarole via Pixabay
Rose Hughes commented on a recent case about the validity of a patent for the second medical use of a known drug for treating type II diabetes (empagliflozin, or Jardiance™) in a subpopulation of patients. The therapeutic efficiency of the drug was known to be affected by impaired kidney function. The patent claimed use of the drug in treating a patient subgroup having moderate renal impairment, which was challenged based on prior art in summaries and press releases about the success of earlier Phase III clinical trials in the broader population. The Board of Appeal held that the claimed invention was novel and involved an inventive step.

Trade Marks

Alessandro Cerri reported on the highly anticipated judgment of the England & Wales Court of Appeal in Lidl v Tesco, which upheld the High Court’s findings on bad faith, infringement, and passing off, including the findings in respect of the ‘price-matching’ allegation. Additionally, the Mark enjoyed a narrow scope of copyright protection, and since Tesco had not copied several of the original elements of the work, the Court held that Tesco had not infringed copyright.

Marcel Pemsel discussed the decisions on the validity of the trade mark applications, filed in 2015, that include the geographical name ‘COMPTON’. Whilst this Kat would have assumed that the name of the city was widely known ever since N.W.A.’s 1998 album, ‘Straight Outta Compton’, the General Court found the people who were aware of the city would amount to only a few percentage points of the overall population, a group too small to invalidate two trade marks for ‘Compton’ as geographical names. Marcel wonders whether the Court should have considered whether it could reasonably be assumed that ‘Compton’ may be perceived as a geographical name in the future, given the subsequent release of the film ‘Straight Outta Compton’ (2015).

Copyright and Designs

Katfriend Henning Hartwig analysed the German Federal Supreme Court’s recent referral to the CJEU for clarification about assessing the originality of works of applied art for copyright purposes, as well as the differences between design and copyright protection. The German courts have been referring to ‘artistic freedom,’ rather than following the terminology from the CJEU case law, which refers to the distinct concept of ‘creative freedom.’ However, the framing of the referred questions does not directly address this issue. We will await the judgment from the CJEU.

Antonios Baris discussed the CJEU judgment that the legislation of a Member State that completely prohibits independent management entities established in another Member State from offering their copyright management services within the former is incompatible with Article 56 TFEU read alongside Directive 2014/26 on collective management of copyright. Whilst the outcome was not surprising, Antonios suggests that the CJEU missed an opportunity to correct the flaws in previous case law, and also highlights concerns about the limits of Member States’ discretion when transposing and interpreting EU law.

Intellectual Property

Anna Maria Stein outlined the findings from a report on ‘Emerging public perceptions of intellectual property in UK media,’  released by the UKIPO last month. The report, authored by Hayleigh Bosher, highlighted the emerging trend in the use of social media to generate strategic “backlash” against enforcement of IP rights, as well as harnessing the so-called ‘David vs. Goliath’ narrative in commentary on IP disputes. 

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