Also on the blog in the past week were:
Read the highlights from the AIPPI World Congress
Pondering four years of PTAB proceedings
Supporting IP education in Africa
We’ve also posted the following articles in the
past week (log in via subscription or free trial):
Interview: Chief Judge David Ruschke leads the PTAB into new
Juries award damages against Apple, LG in Eastern District of
Reactions to EU copyright proposals
Colour combinations: getting back to WYSIWYG
PTAB 4 Years In: Biotech/pharma’s share of AIA
PTAB 4 Years In: Federal Circuit appeal statistics and
PTAB Bar Association launches
How the EPO is tackling its backlog
European copyright reform coming - slowly
Food companies have a taste for 3D trademarks
Judges weigh in on expert evidence around the world
Keep calm and be prepared for Brexit
Meet AIPPI’s first Chinese President
WIPO's Gurry outlines five challenges
From OHIM to EUIPO
BMI handed fractional licensing
Judge Louis Stanton of the Southern
District of New York has
issued an order rejecting the US Department of
Justice’s (DOJ) recent interpretation of the BMI
consent decree, and concluded that BMI is free to engage in the
fractional licensing of musical works.
The decision immediately followed oral arguments from both
parties. Judge Stanton’s ruling is now the
controlling interpretation of the BMI consent decree. "The
consent decree neither bars fractional licensing nor requires
full-work licensing," said Judge Stanton.
As the Wall Street Journal explains: "BMI and Ascap have
argued that fractional licensing is a longstanding industry
practice, and proposed that the decrees be modified to
explicitly allow it."
The Journal continued: "The Justice Department said in
August that the
consent decrees required 'full-work’
licenses, and said fractional licensing 'would
undermine the traditional role of the Ascap and BMI licenses in
providing protection from unintended copyright infringement
liability’ and would create difficulties for music
users required to 'meticulously’ track ownership.
Friday’s decision has no impact on Ascap, whose
cases are overseen by a different federal judge."
BMI President and CEO
Mike O’Neill commented: "As we have said from
the very beginning, we believed our consent decree allowed for
the decades-long practice of fractional licensing and today we
are gratified that Judge Stanton confirmed that belief. Our
mission has always been to protect the interests of our
songwriters, composers and publishers, and we feel we have done
just that. Today’s decision is a victory for the
entire music community."
Will SCOTUS hear Redskins/Slants?
With the Supreme Court’s new term starting in
October, attention is turning to what IP cases may be taken
a good overview of potential cases that may be granted
cert, in addition to the four cases for which oral arguments
are already scheduled. These include the Dancing Baby copyright
case and Novartis’s attempt to launch a biosimilar
of Amgen’s Neupogen cancer drug.
However, with the court currently a justice down, it may be
cautious about the cases it takes on. Reuters quoted law
professor Mark Lemley as saying: "I do think the court will be
looking for cases that don't break along traditional partisan
lines. IP cases fit that bill."
The most-closely-watched issue that has been petitioned to
the Supreme Court is disparaging trade marks, with both the
Redskins and The Slants cases up for consideration.
Foley Hoag’s Trademark and Copyright Law blog
ran a helpful overview of those two cases for those in need
of a refresher.
Anthony Rufo wrote: "Both the Tam
[The Slants] and Blackhorse [Redskins] petitions are ripe for a
decision. The Supreme Court does not have to accept either
case, but it could choose to hear Tam alone or both Tam and
Blackhorse together. Although they deal with the same
controversial issue (stereotypes of minority groups) in regard
to the same provision of law, there is a compelling reason to
hear both cases together instead of just one."
He said the Tam court found Section 2(a) to be
unconstitutional in light of arguments in favour of
registration made by members of the minority group in question,
while the Blackhorse court reached the opposite conclusion and
upheld Section 2(a), but also did so in favor of the arguments
made by members of the minority group at issue, this time in
opposition to registration.
"By taking up these two cases at the same time, the Supreme
Court will have the opportunity to determine what, if any,
weight should be given to the identities of the parties in such
cases, and to confront head on what appears may be an
irreconcilable dichotomy," Rufo said.
Judge Newman: The Great Dissenter
Law.com ran an interesting
profile of Federal Circuit Judge Pauline Newman, who at 89
maintains a full caseload.
While Newman has only issued two
precedential majority opinions this year, she has issued 10
dissents in patent cases.
No other judge has issued more than two.
The article’s author Scott Graham noted: "Over
the past five years, as the Federal Circuit has absorbed a new
generation of judges and the court has wrestled the America
Invents Act, Newman’s dissent rate has climbed
ever higher. She has authored 64 dissents just in patent cases
since 2012, including 14 dissents from denial of en banc
GIPC slams UN medicines report
The US Chamber of Commerce has condemned a UN report
The United Nations High-Level Panel on Access to Medicines
called on governments to restrict patentability of medical
innovations; make use of compulsory licenses to override
patents; reduce the private sector role in the research and
development of new cures; and, put the United Nations itself
above national governments in oversight of intellectual
"The UN High-Level Panel on Access to Medicines has issued a
report that was never intended to address the true barriers of
access to medicines; it was designed to drive a narrow and
extreme agenda," said
Mark Elliot, executive vice president of the Global
Intellectual Property Center. "The Panel’s
predetermined conclusions ignored decades of data and the input
of key countries in asserting that intellectual property is the
problem with access to medicines.
"In doing so, the Panel ignored the real culprits that stand
between patients and care: excessive tariffs and taxes on
imported medicines, and weak healthcare infrastructures that
hinder the effective distribution of medicines. And the
UN’s own data shows that intellectual property
does not restrict access to medicines: 95% of essential
medicines are no longer under patent.
"The irony is that by singling-out patents, this report has
attacked the innovative systems that have actually produced
thousands of cures and saved millions of lives."
The Panel’s report came one day after USPTO
Director Michelle Lee testified at a US House of
Representatives Judiciary Committee hearing, reaffirming "
serious concerns" with its "narrow focus and the biased
mandate." In February, the Chamber joined the U.S. Government
and other countries and organizations in objecting to the
Panel's "fundamentally flawed" premise that there is a
"misalignment between the rights of inventors, international
human rights law, trade rules and public health."
Copyright "not a divine right"
The High Court of Delhi has authorised Delhi University to
issue photocopies of textbooks, in a case brought by Oxford
University Press, Cambridge University Press and Taylor &
reports The Hindu.
The court said that students could get books copied from the
university’s library or its authorised photocopy
shop under Section 52 of the Copyright Act, which exempts
education from copyright infringement. "Copyright,
especially in literary works, is thus not an inevitable,
divine, or natural right that confers on authors the absolute
ownership of their creations. It is designed rather to
stimulate activity and progress in the arts for the
intellectual enrichment of the public," The Hindu quotes
Justice Rajiv Sahai Endlaw as saying.