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5-a-day: Fake fashion, Raising the Bar and Chubby Checker

James Nurton

In today’s IP round up from the web: the BMS case raises pharma patent concerns; a survey reveals consumers’ fake buying; Raising the Bar lives on in Australia; Apple suffers iPhone defeat in Brazil; and Chubby Checker is upset

More concerns for pharma patents

BaracludeForbes reports this week that a court defeat for Bristol-Myers Squibb may create uncertainty over composition of matter patents. The pharmaceutical company suffered a surprising setback when a district court in Delaware invalidated its patent on its Baraclude treatment for hepatitis B. Judge Christopher Burke said the patent did not pass the obviousness test, paving the way for defendant Teva to produce a generic version. We posted yesterday about obviousness concerns for second medical use patents in Europe. If upheld and followed in other cases, the Baraclude decision raises similar problems for patents on products with minor modifications in the US. More predictability in pharmaceutical research is good for drug development, but does it pose a dilemma for patent validity?

Have you bought fake fashion?

More than one in five UK adults have knowingly bought counterfeit fashion items (including bags, sunglasses and watches), according to a survey reported on and the Huffington Post. That’s about 10 million people – is that more or less than you would expect? It sort of rings true, though I would hesitate to read too much into the survey (conducted by fashion reseller Vestiaire Collective and polling site YouGov). If anything, the more surprising finding was that 34% of respondents were confident they had never purchased a fake: how can they be sure?

Raising the Bar returns

Remember Alison Brimelow? She seemed to spend most of her three-year term as EPO president explaining what she did and didn’t mean by Raising the Bar. Well, her legacy lives on – in Australia. In two months time, the Raising the Bar Act will come into effect introducing higher patentability requirements. Patent applicants are advised to take actions such as requesting examination or filing divisionals before the changeover, due to “some uncertainty in relation to interpretation of the new provisions”, says Greg Gurr of Spruson & Ferguson.

Don’t call it an iPhone in Ipanema

iPhoneThe BBC reported this week that Apple has been denied a trade mark for iPhone for handsets in Brazil, due to an existing registration for the mark G Gradiente iphone dating back to 2008. Apple filed its applications in 2006, and the rejections were issued on Wednesday. The computer company is already appealing, of course, but with decisions taking up to eight years, a settlement looks more likely (exhibit 1: Apple’s $60 million deal with Proview in China over the iPad mark). Whatever the facts of this case, there can be few more lucrative gambles than successfully guessing the name of Apple's next product.

Cheeky Chubby app checked

Chubby CheckerHere’s one that HP should have seen coming: 71-year-old singer Chubby Checker (represented by lawyer Willie Gary) is suing the company, and its subsidiary Palm, in Florida for using his trade marked name (US registration 2152510, filed 1997) on an app that claims to estimate penis size. The app has been downloaded 84 times and Checker is claiming $500 million (yes, you read that right) for blurring and tarnishment. Too much has already been written on this diverting news (see The Register, the Guardian and for example) and we only have one question to add: will it stand up in court?

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