The US 'safe harbour' for research--some loose ends tightened

In a unanimous decision the US Supreme Court has held that theFederal Circuit Court construed the ‘safe harbour’exemption in 35 USC 271(e)(1) too narrowly in holding that Merck'sresearch activities did not qualify for protection.     

Dilution in the US, Europe, and beyond: international obligations and basic definitions

Legal context. The efficacy of trade mark dilution as a causeof action has been cast into doubt by the Supreme Court's actualdilution standard. However, Congress is currently consideringthe Trademark Dilution Revision Act 2005, removing the actualdilution standard and resolving other difficulties under thepresent Lanham Act 43(c). This should breathe new life intoblurring and tarnishment. It should also be recalled that theEU already has strong laws against dilution and unfair advantage. Key points. This article identifies international dilution obligationsin order to determine (in Part II) whether the US and EU arecompliant. It identifies problems under the present US dilutionlaw and the solutions offered by the Revision Act. It comparesthe US proposals with EU dilution protection to determiningwhat the two jurisdictions have to learn from each other. Thistheme will be continued in the next part of this article, whichfocuses specifically on blurring/detriment to distinctive character. Practical significance. The introduction of new US legislationwill make successful dilution claims easier and will increasethe frequency of actions under 43(c). It is vital that trademark lawyers are familiar with the changes. At the same time,it should be remembered that many of the same outcomes can beachieved under the current European legislative provisions.To the extent that the jurisdictions do not live up to theirinternational dilution obligations, there is scope for proprietorsto lobby for even stronger protection.     

Philip Grubb

Dr Philip Grubb, the distinguished patent specialist and authorfound time to answer questions put to him by JIPLP. How did you first become interested in IP? In 1971, I was working as a research scientist at the CorporateResearch Laboratory of ICI in Runcorn, looking for alternativesto a lifetime career in research. A job in the small patentdepartment there was advertised internally. I considered thisbut thought ‘patentssounds difficult, you have to study     

Compromising the Authority of International Criminal Justice: How Vojislav Seselj Runs His Trial

eelj's conduct continues to cause major problems to the InternationalCriminal Tribunal for the former Yugoslavia. The approach ofboth the Trial Chamber and the Appeals Chamber to the accused'shunger strike is a matter of serious concern. Especially theAppeals Chamber's decision leaves one with the impression thateelj is running his own trial. This note offers a critical analysisof the Trial Chamber's and Appeals Chamber's responses to theaccused's hunger strike and their damaging implications.     

Duress, International Criminal Law and Literature

This paper uses parallels between Sophocles’ Theban Playsand the House of Lords decision in Dudley and Stephens, to questionthe decision in the Erdemovi case before the International CriminalTribunal for the former Yugoslavia. One should distinguish betweencausal, moral and criminal responsibility. If a man who commitsa crime, not by the action of his free will, is to be foundguilty, we are essentially equating causal responsibility withcriminal guilt. This logic clearly does not correspond withthat of the rest of international criminal law. The storiesof Erdemovi, Oedipus, Dudley and Stephens are tragedies. Eachof the victims/perpetrators felt an overwhelming sense of remorse.Whether they should be considered morally guilty of murder isa matter of individual conscience. The International CriminalTribunal for the Former Yugoslavia majority erred in using anabsolute moral position in Erdemovi. The majority's moral condemnationof the killing of innocents was confused with the question ofwhether Erdemovi should have been criminally punished. The contentof the majority opinion is largely of an irreproachably moralisticnature, though shrouded and mystified by the discussion of precedent.More generally, the decision to try Erdemovi at the InternationalCriminal Tribunal for the Former Yugoslavia was itself self-defeating.Erdemovi should never have stood trial at The Hague. The internationalcommunity should not aid in self-flagellation. While his actionscannot be approved of, they should not be punished internationally.He could have been helped, supported and reintegrated with fargreater benefit to all.         ‘Heroesare hard to find in an atmosphere of total terror.’¹     

The Future of Consumer Web Data: A European/US Perspective

The article considers the subject of clickstream data from aEuropean/US perspective, taking into account the Data ProtectionFramework (Data Protection Directive 95/46/EC; Directive onPrivacy and Electronic Communications 2002/58/EC) and the USlegal framework and in particular, the Wiretap Act U.S.C. 2701(2004) and related statutes. It examines the extent to whichclickstream data is considered "personal data" within the DataProtection Directive and the implications to consumers and businesses.     

Liberal Values in International Criminal Law: A Critique of Erdemovic

Using the Erdemovi decision as its starting point, the articleexamines the philosophical foundations of international criminallaw. It asserts that international criminal law, properly understood,represents a liberal legal system, emphasizing the rights ofthe accused over the interests of the prosecution or the goalsof international peace and security. Using the work of RonaldDworkin, it argues that international jurists should apply principlesthat invoke a respect for human rights and individual autonomyover ‘policy’. Thus, it argues that the reasoningof the Appeals Chamber of the International Criminal Tribunalfor the former Yugoslavia was flawed when it determined thatduress did not constitute a complete defence in Erdemovi.     

Does the Threat of the Death Penalty Affect Plea Bargaining in Murder Cases? Evidence from New York's 1995 Reinstatement of Capital Punishment

This article investigates whether the death penalty encouragesdefendants charged with potentially capital crimes to pleadguilty in exchange for lesser sentences. I exploit a naturalexperiment in New York State: the 1995 reinstatement of capitalpunishment, coupled with the public refusal of some prosecutorsto pursue death sentences (N.Y. Penal Law 125.25 [McKinney1975]). Using individual-level data on all felony arrests inthe state between 1985 and 1998, I find the death penalty leadsdefendants to accept plea bargains with harsher terms, but doesnot increase defendants’ overall propensity to plead guilty.A differences-in-differences analysis of a national cross-sectionof homicide defendants confirms these results.     

Comment on Forni's "Using Stationarity Tests in Antitrust Market Definition"

Economic analyses of prospective mergers must typically be undertakenwith limited data. Often prices are the only available data,so it is tempting to use their time series alone. Certainly,simple and robust measures of the extent of the market basedon limited data would aid merger analysis immensely. However,a couple of examples show how Forni's suggested methodologycan lead one astray. Consider a differentiated products market with demand systemln D_i(p_i, p_j) = 1 – ln p_i + ln p_j, i, j = 1, 2, i j,with associated constant marginal costs c₁ = _t c, c₂     

IP: It's also about trust and French chefs

There is a principle in the law known as ‘admission againstinterest’. Here is my own admission. While we are delightedto bring together this collection of quality articles aboutthe multifaceted world of IP licensing and technology transfer,something is missing: we need to broaden our coverage aboutthe diverse ways that IP rights are licensed and transferred. To judge from the professional literature, licensing and technologytransfer primarily address the exploitation of patents, copyright,and trade marks. Each of these rights is based upon disclosureand     

In Person

Shane Smyth is a popular and well-known personality in internationaltrade mark circles, where his friendly face and amicable demeanourprovide the frontage for a mordant     

In Person

An Associate Professor in the Law Department of the prestigiousEDHEC Business School, Nice, Cedric Manara is one of the liveliestand most influential intellectual property educators and opinion-makersto emerge from France in recent     

Is it really just a game? Copyright and online role-playing games

Legal context. Massively multiplayer online role-playing games(MMORPGs) are a craze that has swept the globe. Online gamershave been reported to spend 22 hours per week online playingtheir favourite games while there have been reports of playersspending up to 55 hours at a time playing. Not all gamers arehobby gamers, nor are they just teenagers having fun. A markethas grown around MMORPGs and a lucrative online market has emergedoutside the games for the sale of game characters and items.The value of this market has been estimated at US$880 million.At the heart of disputes concerning the sale of game charactersand items is the question of copyright ownership. Game providersclaim that the End User Licence Agreements (EULAs) give themintellectual property ownership and rights over any dealingswith the game characters and items. Many gamers on the otherhand are abhorrent at the assertion that they have no claimto characters and items that they have spent many hours developing. Key points. The first issue that needs to be considered is whethercopyright subsists at all in the game characters and items.The next question to be considered is who owns the copyrightin in-game characters and items. To answer the question, onemust look to the EULAs, but the EULAs do not provide all theanswers because issues such as moral rights cannot be governedby EULAs. Further, the practice of farming by companies runningdigital sweatshops complicates the relationship between gamersand game providers. Practical significance. There have been numerous disputes concerningthe game characters and items between game developers, gamers,and farming companies. This article examines the key copyrightissues at stake.     

William Patry

The author of what must be the longest and weightiest book oncopyright law, William Patry is an enthusiastic copyright specialist.His professional responsibility as Senior Copyright Counselto Google Inc brings him into contact with the most immediateleading-edge tech-meets-copyright issues; he is     

The Problem of Self-Representation at International Criminal Tribunals: Striking a Balance between Fairness and Effectiveness

The principle that the right to self-representation is not absolute,as established by international criminal tribunals, raises difficultquestions of application that are still being worked out inthe jurisprudence. There has been a recent shift in focus, fromestablishing the modalities for the exercise of the right inthe early stages of the Miloevi trial to establishing the circumstancesin which the right may be qualified. This article examines recentdevelopments and considers where the threshold for revokingor qualifying the right to self-representation lies, how thevarious modes of court imposed representation may be synthesizedand what the standard is for counsel who is representing anuncooperative accused.     

In Person

This month JIPLP interviews Gonzalo Ulloa y Suelves, a well-knownpersonality not only with the Spanish and European intellectualproperty professions, but also internationally. Gonzalo graduatedwith a Master of Law degree from the Universidad de Madrid     

Some Considerations on Faces of Justice by a 'Non-Specialist'

The author examines the well-known book by Mirjan Damaka aswell as other more recent books and writings of the distinguishedauthor against the specific background of the Italian experiencein reforming its system of criminal procedure with a view tocommenting upon sensitive issues in current international criminalproceedings. Three key factors in assessing the ‘real’nature of a procedural system are examined: (i) the role ofjudges in the proceedings; (ii) the rules on evidence and (iii)the duty to render reasoned decisions. Subsequently, the authortackles the issue of self-representation in international criminaljustice, in light of Damaka's categories (conflict-solving v.policy-implementing) and of the difficulties in transposingthem to the international level. Finally, the author warns thatthe analysis of international criminal justice should not beconfined in over-rigid models. The overriding concern must beto harmonize the ‘fair trial’ model with sensitivityto certain objectives of justice that cannot be possible objectsof compromise (as they may be where judicial authority operatespurely as arbiter of a dispute).     

In Person

Clare, a partner in London solicitors Collyer Bristow, specializesin IP litigation. Much of her work involves trade mark/passingoff litigation, although copyright and design orientated mattersalso constitute important areas of practice for her,     

In Person

Ellen has more than 20 years of experience practising trademark and IP law. Formerly a partner and the head of the trademark department with one of the largest intellectual propertyfirms in Israel, she specializes in global branding, trade markand trade     

Slawomira Piotrowska

Polish patent attorney Slawomira Piotrowska is a well-knownand popular figure on the international IP circuit. After astint with the Polish Patent Office, Slawomira joined PATPOLin 1992 and has remained in private practice ever since then,currently leading the firm's trade marks department. A