IIC-INTERNATIONAL REVIEW OF INTELLECTUAL PROPERTY AND COMPETITION LAW最新文献

{"title":"“Ketofit”","authors":"","doi":"10.1007/s40319-021-01107-0","DOIUrl":"https://doi.org/10.1007/s40319-021-01107-0","url":null,"abstract":"","PeriodicalId":44949,"journal":{"name":"IIC-INTERNATIONAL REVIEW OF INTELLECTUAL PROPERTY AND COMPETITION LAW","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2021-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91396231","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Viability of the Unitary Patent Package After the UK’s Ratification of the Agreement on a Unified Patent Court","authors":"María Aránzazu Gandía Sellens","doi":"10.1007/s40319-017-0666-y","DOIUrl":"https://doi.org/10.1007/s40319-017-0666-y","url":null,"abstract":"","PeriodicalId":44949,"journal":{"name":"IIC-INTERNATIONAL REVIEW OF INTELLECTUAL PROPERTY AND COMPETITION LAW","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2018-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88959000","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reset and Go: The Unitary Patent System Post-Brexit","authors":"T. Jaeger","doi":"10.2139/ssrn.2884671","DOIUrl":"https://doi.org/10.2139/ssrn.2884671","url":null,"abstract":"Patent law in Europe is characterized by a historic rivalry between EU and non-EU patent systems. The EU for decades could not establish a working, attractive and balanced system of its own. After the failure of its well-tailored 2009 model, the Commission was determined to push ahead with the patent plans even at the cost of compromise that severely damaged the functionality of the patent system. The result was the 2012 Unitary Patent Package, which has since been cleared twice by the CJEU in spite of severe doubts concerning EU law compatibility. Just as the race seemed to near finish line, the June 2016 Brexit referendum put a spoke in the EU’s wheel. Against the backdrop of a brief review of the systemic rivalry, this paper recounts and assesses the CJEU’s recent case law on the legality of the UP Package, the implications of the Brexit vote and the prospects, if any, for the unitary patent post-Brexit.","PeriodicalId":44949,"journal":{"name":"IIC-INTERNATIONAL REVIEW OF INTELLECTUAL PROPERTY AND COMPETITION LAW","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2016-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.2884671","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68416842","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"From Abuse of Right to European Copyright Misuse: A New Doctrine for EU Copyright Law","authors":"C. Sganga, Silvia Scalzini","doi":"10.2139/ssrn.2826240","DOIUrl":"https://doi.org/10.2139/ssrn.2826240","url":null,"abstract":"The great expansion of EU copyright law has paved the way for several rightholders’ abusive or dysfunctional conducts, without providing adequate solutions to prevent or remedy them. The answer from EU sources is characterized by extreme fragmentation, with tools mostly borrowed from external bodies of law. Paradoxically, the doctrine of abuse of right has long been neglected as a potential solution, mainly due to its flaws – difficult evidence-taking and weak remedies – and its incompatibility with the discretionary nature of continental authors’ rights. Yet, the notion emerges between the lines of several ECJ decisions and finds its way from civil codes to copyright in a number of national courts’ precedents. Due to the paradigm shift towards a market-oriented and industry-based inspiration, EU copyright seems now to be open to admitting the possibility of misuse. Starting from these premises, this article argues that a unitary doctrine of copyright misuse may constitute an effective balancing tool for most of the dysfunctional conducts that copyright law and other bodies of law are still unable to resolve. In addition, it may also act as a regulatory paradigm to ensure greater certainty and transparency in the judicial development of key principles and rules of EU copyright law. To this end, this paper (a) proposes a four-prong test of abusiveness, incorporating criteria of proportionality and reasonableness inspired by the normative function(s) of exclusive rights; and (b) offers new perspectives on potential remedies and on the positive impact of the doctrine on the systematization of the current legislative framework.","PeriodicalId":44949,"journal":{"name":"IIC-INTERNATIONAL REVIEW OF INTELLECTUAL PROPERTY AND COMPETITION LAW","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2016-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.2826240","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68360024","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"“Iron & Smith”","authors":"Maurice Mauris","doi":"10.2307/20569381","DOIUrl":"https://doi.org/10.2307/20569381","url":null,"abstract":"Article 4(3) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that, if the reputation of an earlier Community mark is established in a substantial part of the territory of the European Union, which may, in some circumstances, coincide with the territory of a single Member State, which does not have to be the State in which the application for the later national mark was filed, it must be held that that mark has a reputation in the European Union. The criteria laid down by the case-law concerning the genuine use of the Community trade mark are not relevant, as such, in order to establish the existence of a ‘reputation’ within the meaning of Article 4(3) thereof. If the earlier Community trade mark has already acquired a reputation in a substantial part of the territory of the European Union, but not with the relevant public in the Member State in which registration of the later national mark concerned by the opposition has been applied for, the proprietor of the Community trade mark may benefit from the protection introduced by Article 4(3) of Directive 2008/95 where it is shown that a commercially significant part of that public is familiar with that mark, makes a connection between it and the later national mark, and that there is, taking account of all the relevant factors in the case, either actual and present injury to its mark, for the purposes of that provision or, failing that, a serious risk that such injury may occur in the future. Article 4(3) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that, if the reputation of an earlier Community mark is established in a substantial part of the territory of the European Union, which may, in some circumstances, coincide with the territory of a single Member State, which does not have to be the State in which the application for the later national mark was filed, it must be held that that mark has a reputation in the European Union. The criteria laid down by the case-law concerning the genuine use of the Community trade mark are not relevant, as such, in order to establish the existence of a ‘reputation’ within the meaning of Article 4(3) thereof. If the earlier Community trade mark has already acquired a reputation in a substantial part of the territory of the European Union, but not with the relevant public in the Member State in which registration of the later national mark concerned by the opposition has been applied for, the proprietor of the Community trade mark may benefit from the protection introduced by Article 4(3) of Directive 2008/95 where it is shown that a commercially significant part of that public is familiar with that mark, makes a connection between it and the later national mark, and that there is, ta","PeriodicalId":44949,"journal":{"name":"IIC-INTERNATIONAL REVIEW OF INTELLECTUAL PROPERTY AND COMPETITION LAW","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2016-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/20569381","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68304539","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"“Darjeeling”","authors":"Art. 10bis TRIPS Agreement Art. 22.1 Council Regulation The Tea Board v. Placement Direct Paris Convention","doi":"10.1007/s40319-015-0398-9","DOIUrl":"https://doi.org/10.1007/s40319-015-0398-9","url":null,"abstract":"","PeriodicalId":44949,"journal":{"name":"IIC-INTERNATIONAL REVIEW OF INTELLECTUAL PROPERTY AND COMPETITION LAW","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2015-10-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80211969","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"“Eli Lilly and Company”","authors":"R. Bruner, Casey Opitz","doi":"10.1108/case.darden.2016.000103","DOIUrl":"https://doi.org/10.1108/case.darden.2016.000103","url":null,"abstract":"Article 3(a) of Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products must be interpreted as meaning that, in order for an active ingredient to be regarded as ‘protected by a basic patent in force’ within the meaning of that provision, it is not necessary for the active ingredient to be identified in the claims of the patent by a structural formula. Where the active ingredient is covered by a functional formula in the claims of a patent issued by the European Patents Office, Article 3(a) of that regulation does not, in principle, preclude the grant of a supplementary protection certificate for that active ingredient, on condition that it is possible to reach the conclusion on the basis of those claims, interpreted inter alia in the light of the description of the invention, as required by Article 69 of the Convention on the Grant of European Patents and the Protocol on the interpretation of that provision, that the claims relate, implicitly but necessarily and specifically, to the active ingredient in question, which is a matter to be determined by the referring court. Article 3(a) of Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products must be interpreted as meaning that, in order for an active ingredient to be regarded as ‘protected by a basic patent in force’ within the meaning of that provision, it is not necessary for the active ingredient to be identified in the claims of the patent by a structural formula. Where the active ingredient is covered by a functional formula in the claims of a patent issued by the European Patents Office, Article 3(a) of that regulation does not, in principle, preclude the grant of a supplementary protection certificate for that active ingredient, on condition that it is possible to reach the conclusion on the basis of those claims, interpreted inter alia in the light of the description of the invention, as required by Article 69 of the Convention on the Grant of European Patents and the Protocol on the interpretation of that provision, that the claims relate, implicitly but necessarily and specifically, to the active ingredient in question, which is a matter to be determined by the referring court.","PeriodicalId":44949,"journal":{"name":"IIC-INTERNATIONAL REVIEW OF INTELLECTUAL PROPERTY AND COMPETITION LAW","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2014-06-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1108/case.darden.2016.000103","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"62046863","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"“Unitary Patent”","authors":"Massimo Barbieri","doi":"10.2139/ssrn.3257664","DOIUrl":"https://doi.org/10.2139/ssrn.3257664","url":null,"abstract":"In the context of the establishment and functioning of the internal market, the first paragraph of Art. 118 TFEU confers the competence to create European intellectual property rights and to set up, as regards those rights, centralized, Union-wide authorization, coordination and supervision arrangements. The competence, conferred by the second paragraph of Art. 118 TFEU, to establish language arrangements for those rights is closely bound up with the introduction of the latter and of the centralized arrangements referred to in the first paragraph of that Article. As a result, that competence too falls within the ambit of the functioning of the internal market. The expression “relevant provisions of the Treaties” in Art. 26(1) TFEU makes it clear that competences falling within the sphere of the internal market are not confined to those conferred by Arts. 114 and 115 TFEU relating to the adoption of harmonization measures but cover also any competence attaching to the objectives set out in Art. 26 TFEU, such as the competences conferred on the Union by Art. 118 TFEU. Although it is true that rules on intellectual property are essential in order to maintain competition undistorted on the internal market, they do not constitute “competition rules” for the purpose of Art. 3(1)(b) TFEU. The scope of, and arrangements for, exercising the Union’s competences in the area of “competition rules necessary for the functioning of the internal market” are determined in Part Three, Title VII, Chapter 1 of the TFEU, in particular in Arts. 101 to 109 TFEU. To regard Art. 118 TFEU as forming part of that area would therefore be contrary to Art. 2(6) TFEU and the result would be to extend unduly the scope of Art. 3(1)(b) TFEU. As such the competences conferred by Art. 118 TFEU fall within an area of shared competences for the purpose of Art. 4(2) TFEU and are, in consequence, non-exclusive for the purpose of the first paragraph of Art. 20(1) TEU. A measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence to have been taken solely, or at the very least chiefly, for ends other than those for which the power in question was conferred or with the aim of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case. Nothing in Art. 20 TEU or in Arts. 326 to 334 TFEU forbids the Member States to establish between themselves enhanced cooperation within the ambit of those competences that must, according to the Treaties, be exercised unanimously. On the contrary, it follows from Art. 333(1) TFEU that, when the conditions laid down in Art. 20 TEU and in Arts. 326 to 334 TFEU have been satisfied, those powers may be used in enhanced cooperation and that, in that case, provided that the Council has not decided to act by qualified majority, it is the votes of only those Member States taking part that constitute unanimity. In addition, Art. 20 TEU and Arts. 326 to 334 TFEU ","PeriodicalId":44949,"journal":{"name":"IIC-INTERNATIONAL REVIEW OF INTELLECTUAL PROPERTY AND COMPETITION LAW","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2014-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68579124","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Principles for Intellectual Property Provisions in Bilateral and Regional Agreements","authors":"Henning Grosse Ruse-Khan, Josef Drexl, Reto M. Hilty, Annette Kur, Mor Bakhoum, T. Jaeger, Kaya Köklü, M. Lamping, Souheir Nadde-Phlix, J. Beer, C. Correa, Graeme Dinwoodie, S. Frankel, S. Flynn, H. Hestermeyer, B. Mercurio, P. Roffe, Xavier Seuba, Peter K. Yu","doi":"10.2139/SSRN.2342677","DOIUrl":"https://doi.org/10.2139/SSRN.2342677","url":null,"abstract":"For several years, research at the Max Planck Institute for Intellectual Property and Competition Law (MPI) − in collaboration with experts from all over the world − has examined the trend of bilateral and regional agreements that include provisions on the protection and enforcement of intellectual property (IP) rights. By building on this research, the following principles –express core concerns regarding the use of IP provisions as a bargaining chip in international trade negotiations, the increasing comprehensiveness of international IP rules and the lack of transparency and inclusiveness in the negotiating process; and–recommend international rules and procedures that can achieve a better, mutually advantageous and balanced regulation of international IP.These principles emanate from several consultations within the MPI and especially from a workshop that was held with external experts in October 2012 in Munich, Germany. They represent the views of those first signatories and are open to signature by scholars who share the objectives of the Principles.","PeriodicalId":44949,"journal":{"name":"IIC-INTERNATIONAL REVIEW OF INTELLECTUAL PROPERTY AND COMPETITION LAW","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2013-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68123488","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"“Pirate Bay”","authors":"Jessica L. Beyer","doi":"10.1093/ACPROF:OSO/9780199330751.003.0003","DOIUrl":"https://doi.org/10.1093/ACPROF:OSO/9780199330751.003.0003","url":null,"abstract":"Article 10 of the European Convention on Human Rights applies not only to the content of the information but also to the means of transmission or reception since any restriction of such means interferes with the right to receive and impart information. The freedom of expression of Art. 10 is granted to everyone, irrespective of whether the aim pursued is profit-making or not. Interference with the right to freedom of expression is justified when such is “prescribed by law”, pursues a legitimate aim and is “necessary in a democratic society” to attain such aims. When determining whether an interference is “necessary”, the nature of the competing interests involved as well as the degree to which those interests require protection must be taken into account. In casu, the interest in sharing information must be weighed against the interest in protecting the rights of copyright-holders. The State enjoys a wide margin of appreciation in regard to the test of “necessity in a democratic society” and the balance of competing interests. The nature and severity of penalties imposed are factors to be taken into account when assessing the proportionality of interference with the freedom of expression guaranteed. Article 10 of the European Convention on Human Rights applies not only to the content of the information but also to the means of transmission or reception since any restriction of such means interferes with the right to receive and impart information. The freedom of expression of Art. 10 is granted to everyone, irrespective of whether the aim pursued is profit-making or not. Interference with the right to freedom of expression is justified when such is “prescribed by law”, pursues a legitimate aim and is “necessary in a democratic society” to attain such aims. When determining whether an interference is “necessary”, the nature of the competing interests involved as well as the degree to which those interests require protection must be taken into account. In casu, the interest in sharing information must be weighed against the interest in protecting the rights of copyright-holders. The State enjoys a wide margin of appreciation in regard to the test of “necessity in a democratic society” and the balance of competing interests. The nature and severity of penalties imposed are factors to be taken into account when assessing the proportionality of interference with the freedom of expression guaranteed.","PeriodicalId":44949,"journal":{"name":"IIC-INTERNATIONAL REVIEW OF INTELLECTUAL PROPERTY AND COMPETITION LAW","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2013-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60649563","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}