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This week in IP: Valeant wants venue rehearing, EUIPO reveals most-pirated content, EPO staff call for strike
Managing IP rounds up the latest trademark, copyright and patent news, including some stories you might have missed
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Valeant rehearing request raises hopes for drug brands on Hatch-Waxman venue rules
Drug maker Valeant filed a petition for en banc rehearing at the Court of Appeals for the Federal Circuit
this week in a bid to reverse its defeat against Mylan on venue rules for
abbreviated new drug applications.
In November, the appellate court affirmed a decision from
the District Court for the District of New Jersey that the first-instance court
was not the proper venue for Mylan. It had departed from its own case law
and that of the District Court for the District of Delaware.
The lower court had previously ruled in Celgene v Hetero Labs that the Hatch-Waxman Act’s focus on future
patent infringement following approval of a generic drug made it appropriate to
include an alleged infringer’s future acts in a venue analysis.
But in this instance, the District of New Jersey decided
that in the context of ANDA venue analyses, acts of infringement only occurred
in districts where ANDA submission actions happened, not where generic
therapeutics were likely to be distributed once launched.
The Federal Circuit has yet to decide whether it will accept
the petition, but counsel for innovator drug companies undoubtedly hope that it
will so it can overturn the decision and reduce the likelihood of increased
risk and unpredictability in that space.
“The Valeant case confirms that generics companies will have
a good chance of litigating Hatch-Waxman matters in their choice of venue, and
create the real possibility of multiple parallel cases with potentially
conflicting results,” says Henry Hadad, senior vice president and deputy
general counsel at Bristol-Myers Squibb in New Jersey.
Other Managing IP stories published this week include:
·
How COVID has changed the lives of women in IP
· ‘Endurance test’: counsel react to EPO’s virtual exams
·
Delhi judge believes inefficiency weighs down the IP system
·
USPTO fees hike worries counsel but should cut bad behaviour
·
Apple escape and new order set stage for Texas venue clashes
· In-house want enforcement reform amid EU copyright divergence
EUIPO report: Marvel and DC Comics films are most pirated in EU
The EUIPO revealed in a report published last Friday, December 4, that Justice League, Wonder Woman, Thor Ragnarok and Spiderman Homecoming – produced by DC Comics and Marvel – were respectively the most pirated films in the EU for 2017.
The study,
called Online Copyright Infringement in the European Union, reported that
Dunkirk, Jumanji Welcome to the Jungle, It, The Circle, Cars 3 and Blade Runner
2049 also made it into the list of the top 10 most pirated films for that year.
The report, which was based on an analysis of the 30 most
frequently pirated creative works in each of the EU member states, also listed
the most pirated TV programmes and songs in 2017.
The top five most pirated TV programmes in the EU were The Walking Dead, Star Trek Discovery, Mr Robot, Vikings and the Grand
Tour. The top five musical artists were Ed Sheeran, Luis Fonsi, Ricky Martin, Charli
Puth and Bruno Mars.
Some of its key findings were that piracy mainly affects creative works recently produced and released, and that TV series were the most frequently pirated creative works.
EPO staff-representative bodies call for strike on December 15
The EPO’s Central Staff Committee and the Staff Union for
the EPO called for a strike to take place on Tuesday, December 15, during a
meeting of the Administrative Council this week.
In a letter sent to EPO staff on Thursday, December 10, the
staff committee encouraged personnel to join the strike and said staff work
packages had been consistently eroded.
“All the while, our president maintains that the staff he
meets are happy, that social dialogue is working at full speed and that all is
going well in EPO-land (our production has not suffered, even today),” the letter
read.
“This is in stark contrast to the emails, phone calls and
messages we keep receiving by many colleagues who are increasingly suffering
from the unabated production pressure and management by spreadsheet, topped up
by the social isolation due to the pandemic.”
SUEPO had already called for the strike in a letter
to its members last week. Both organisations cited social conflict at the EPO
as the main reason for proposing the strike.
The EPO has yet to publicly respond to the call.
Australia regulator to make Google and Facebook pay for news
The Australian government has tabled legislation in
parliament that would force Google and Facebook to negotiate fair payments with
news organisations for using their content in newsfeeds, it was announced this
week.
The new law, which was intended to safeguard independent
journalism in Australia by addressing the loss of advertising revenues in the
media industry, comes three years after the government asked the country’s competition
regulator to look into the state of competition in the media.
In its 18-month-long inquiry, the Australian Competition and Consumer Commission, which looked into the impact of Facebook and Google specifically,
found a bargaining power imbalance between news media organisations and the
large digital platforms.
It recommended that codes of conduct be negotiated to govern
their commercial deals.
The new law is separate to a recent deal Facebook made to
pay mainstream UK news outlets millions of pounds a year to license their
articles.
Such legislation has long been desired by newspaper
publishers, which have argued that users would find Google and Facebook much
less helpful if their news did not appear in those companies’ feeds or in their
search results.
Global trademark applications rise while Chinese patent filings fall
A report
published by WIPO on Monday, December 7, revealed that worldwide trademark and
industrial design-creation activity rose in 2019, while the number of global patent
applications fell slightly because of a drop in domestic Chinese filings.
WIPO's benchmark World Intellectual Property Indicators
(WIPI) report showed that trademark and industrial design filings increased by
5.9% and 1.3% respectively, and that global patent filings fell by 3% – for the
first time in a decade.
The report, which was constructed after WIPO collected and
analysed IP data from 150 national and regional offices, noted that if you
excluded China from the calculations, global patent filings rose by 2.3% in
2019.
In a press statement, WIPO director general Daren Tang said
WIPI's 2019 figures, which pre-dated the COVID-19 pandemic, underlined the
long-term growth in demand for the IP tools that incentivise an
increasingly global and digital-focused economy.
“The robust use of intellectual property tools shows high
levels of innovation and creativity at the end of 2019, just at the onset of
the COVID-19 pandemic,” he said.
“The pandemic has accelerated long-building trends by fostering the adoption of new technologies and accelerating the digitisation of everyday life. Because IP is so connected to technology, innovation and digitalisation, IP will become even more important to a greater number of countries in the post-COVID world.”
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