Global IP Matrix issue 1 by Northon's Media PR & Marketing Ltd

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We are extremely delighted that you have picked up a copy of our new publication “The Global IP Matrix”. Thank You. We are confident that you will enjoy our first issue, as we are confident you will enjoy the issues that follow. Great care has been taken to not limit our topics to just one niche area of intellectual property, this ensures we have something interesting for everyone that works in the area of IP.

CONTENTS Page 6

Page 24

Page 9

Page 28

Page 12

Page 32

Transshipment of goods in Malaysia constitutes infringing use of a registered trademark. Clara C.F.Yip, of MarQonsult IP - Malysia The law on ‘grey’ market goods. Lisa Lovell, CEO of Brand Enforcement UK - South Shields UK It’s all in the mapping Gabriela Bobben, Partner at Eproint - Costa Rica

Page 16

Untangle domain name management Bart Mortelmans, general manager of bNamed.net Belgium

Page 21

Renewed patent litigation tips Irina Ozolina, Senior Partner at A.Zalesov & Partrners - Russia The art of patent busting Dean Parry, Technical Director at Patent Seekers Ltd – Wales, UK Patents in the up and coming technology world Doris Spielthenner, General Manager at Practice Insight – Munich, Germany

Page 38

Why you should make your IP registration with ARIPO Susan Mwiti, Documentations and communications officer at ARIPO, Zimbabwe

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Carlos Northon

CEO & Founder Northon’s Media PR & Marketing LTD carlos@northonsprmarketing.com

Elvin Hassan

Copywriter & Editor Global IP Matrix Info@northonsprmarketing.com

Craig Barber

Head of design Global IP Matrix info@northonsprmarketing.com

EDITORIAL BOARD OF DIRECTORS

Gabriela Bodden

Partner at Eproint Global IP Matrix editorial board director

Afamefuna Francis Nwokedi

Injunction questioned and waived Vladimir Biriulin, Partner at Gorodissky & Partners Russia

The Global IP Matrix magazine has a generic outlook on IP as a whole and gives you, the IP Lawyer and IP business owners a platform to educate the global IP community on the raw, uncut, undiluted, educational editorial content from ground level with expert local knowledge, by IP experts in this vast field internationally. Our publication is heavily overseen by some of the worlds most respected IP law firms, to give you, the reader confidence that we are producing the right content to keep you wanting more. If you are interested in keeping up to date with IP news from experts in this field (You the IP lawyers and IP business owners) then please be sure to join our mailing list, for the latest news and updates. Carlos Northon CEO & Founder Northon’s Media PR & Marketing Ltd

Principle counsel & Group head Stillwaters Global IP Matrix editorial board director

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The ECTA Conference will deal with the latest developments in Trade Mark, Copyright and Design law, and will oďŹ&#x20AC;er optimal networking opportunities with friends and colleagues. www.ecta.eu

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which a mark may be ‘used’ in the course of trade: 1) The mark is represented in print or visual form [in s.3(2)(a)TMA]

TRANSSHIPMENT OF GOODS IN MALAYSIA CONSTITUTES

INFRINGING USE OF A

REGISTERED MARK! ‘Clara C.F.Yip, MarQonsult IP’

discusses a recently reported case A recently reported case of Philip Morris Brand Sarl v Goodness for Import & Export & Ors [2018] 7 MLJ 350 (High Court, Kuala Lumpur) affirms the position that the owner of goods bearing an infringing trademark, which have never left a Free Trade Zone in Malaysia (i.e. the goods have never been put on the local market), may still be held liable for trademark infringement under Section 38(1)(a) of the Trade Marks Act 1976 (“TMA”). In this case, the 1st defendant shipped 12 containers of goods from Vietnam to Egypt with transshipment in Malaysia. While the goods were at Klang Port, the Royal Malaysian Customs Department (RMCD) seized 10 out of these 12 containers due to a false customs declaration that said containers contained ‘Omani Marble’ cigarettes when in fact these contained MALIMBO brand cigarettes. Following this seizure, the Plaintiff filed an action against the defendants for infringement of their MARLBORO trademarks on the basis of 13 of their 28 registrations in Class 34 in Malaysia, and for passing-off MALIMBO cigarettes as MARLBORO cigarettes.

Clara C.F.Yip, Founder of MarQonsult IP www.marqonsult.com The learned Judge referred to the case of Tohtonku Sdn Bhd v Superace (M) Sdn Bhd [1992] 2 MLJ 63 at p 65, in reiterating that for a Plaintiff to succeed in a trademark infringement action, the Plaintiff has to prove that all 5 elements of infringement under Section 38(1)(a) have been fulfilled, namely that: a) The defendant is neither the registered proprietor nor the registered user of the trademark; b) The defendant used a mark identical with or so nearly resembling the plaintiff ’s registered trademarks as is likely to deceive or cause confusion; c) The defendant was using the offending mark in the course of trade; d) The defendant was using the offending mark in relation to goods or services within the scope of the registration; and e) The defendant used the offending mark in such a manner as to render the use likely to be taken either as being used as a trademark or as importing a reference to the registered user or to their goods or services.

Confusingly similar trademarks On the question of whether the trademark MALIMBO and the 13 MALBORO trademarks are confusingly similar, the learned Judge had no difficulty deciding in the affirmative on account that the trademark MALIMBO had incorporated the essential features (namely, roof devices, roof line device and roof device variations) of the 13 MALBORO trademarks, and used the same red, white and black colors. In addition, both words are structurally identical with the same syllables of ‘MA’ and ‘O’ and both marks shared similar positioning of words, arrangement and get-up, thereby giving a similar overall impression.

Defendant argues goods were not imported into & sold in Malaysia A critical issue was whether the 1st defendant’s transshipment of 10 containers of MALIMBO cigarettes was tantamount to “use in Malaysia” and whether such use could be considered as use “in the course of trade”. The 1st defendant argued that this was not the case since the MALIMBO cigarettes were NOT imported into and sold in Malaysia, the goods having been kept in said containers and the containers having remained in a Free Trade Zone up until the time of seizure. To support their contention, the 1st defendant had relied on amongst others, other provisions in Part IVA of the TMA dealing exclusively with Border Measures which defined the meaning of ‘goods in transit’ and which exempted ‘goods in transit’ from seizure. The learned Judge disagreed and held that: firstly, the Border Measures provisions could not be used to interpret the word ‘use’ in Section 38(1) since those provisions apply only to Part IVA of the TMA. Instead ‘use’ had to be interpreted by reference to Sections 3(2)(a) and (b) of the TMA as in the case of Doretti Resources Sdn Bhd v Filters Marketing Sdn Bhd & Ors [2017] MLJU 836 wherein the Court had considered the following 4 ways in

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2) The mark is used ‘upon’ goods [s.3(2)(b) TMA] 3) The mark is used ‘in physical’ relation to goods [s.3(2)(b) TMA] 4) The mark is used in ‘other relation to’ goods [s.3(2)(b) TMA]

Based on aforesaid examples, the transshipment of the 10 containers of the MALIMBO cigarettes constituted a use in “the course of trade”. Additionally, the substantial quantity of the cigarettes indicated that the 1st defendant had intended to use the mark for the purpose of trade. As all the remaining elements have clearly been fulfilled, the transshipment was held to have infringed the 13 MARLBORO trademarks under Section 38(1)(a).

‘Passing-off ’

There was clearly ‘use’ of the trademark MALIMBO as it is represented in ‘print or visual form’ on the MALIMBO cigarettes within the meaning of Section 3(2)(a) and it is used ‘upon’ MALIMBO cigarettes in the 10 containers, per Section 3(2)(b).

With regard to passing-off, the 1st defendant was found to have passed off the MALIMBO cigarettes in the 10 containers as MARLBORO cigarettes based on the 3 tests of passing off laid down in the House of Lords decisions in Erven Warnink [1979] AC 731 and in Reckitt & Colman Products Ltd v Borden Inc & Ors [1990] 1 All ER 873, viz:

Secondly, the ‘use’ of the trademark MALIMBO ‘upon’ MALIMBO cigarettes in the 10 containers is in fact in Malaysian territory. In arriving at this conclusion, the learned Judge referred to and clarified Section 4 of the Free Zones Act 1990 (“FZA”) which provided that subject to the FZA and other prohibition by law, goods or services may, inter alia, be brought into or provided in a Free Zone without payment of any duty or tax. Drawing parallels from an earlier High Court decision in Philip Morris Products SA v Ong Kien Hoe & Ors [2009] 4 MLJ 727, however, the learned Judge held that Section 4 does not mean that the Free Zone is a law-less zone, nor that the 10 containers were not actually in Malaysian territory. The laws of Malaysia including the TMA and the tort of passing-off would still apply in the Free Zone and the Enforcement Agencies continue to hold jurisdiction over and in these zones.

(a) That the plaintiff is the owner of the goodwill and reputation in and to the MARLBORO get up and trade name; (b) That the 1st defendant has misrepresented to the public that the MALIMBO cigarettes were the plaintiff ’s cigarettes, and the misrepresentation was made in the course of trade (pursuant to aforesaid case-law definitions) to prospective or ultimate consumers of cigarettes supplied by the 1st defendant; and (c) That the plaintiff has proven that it has suffered or was likely to suffer damage by reason of the 1st defendant’s misrepresentation, amongst others due to the fact that MALIMBO cigarettes and MARLBORO cigarettes are in direct competition with one another. Hence, the Plaintiff ’s loss of sales will be more readily inferred.

Noteworthy Conclusion! It is noteworthy that the High Court did not need to consider Section 71(1) of the Act in interpreting the meaning of use “in the course of trade”. Pursuant to this provision, an application in Malaysia of a trademark for goods meant for export from Malaysia would constitute use of the trademark in Malaysia. However, in the case of Lim Yew Sing v Hummel International Sports & Leisure A/S [1996] 3 MLJ 7 the Court of Appeal held that for the purpose of determining confusion in the minds of the Malaysian public, such use of the trademark in Malaysia i.e. as an export brand could not be factually equated to the use of the trademark in the course of trade in Malaysia because the Malaysian consumers never saw these goods. The same principle could have applied in relation to transshipment of goods since these goods have not entered the course of trade. In applying the binding Federal Court decision in Mesuma Sports on the definition of “in the course of trade” the High Court has concurred that the term “in the course of trade” extends beyond the manufacture of goods in Malaysia, the import of goods into Malaysia, the offer to sell and the sale of goods in Malaysia, and the marketing, promotion or advertisement of goods in Malaysia.

Thirdly, on whether the trademark MALIMBO had been used “in the course of trade”, the TMA defines this phrase only in relation to the provision of services but not in relation to goods. The learned Judge thus provided the following examples where the mark is deemed to have been used in the course of trade, namely: (i) using the design for branding purposes irrespective of whether any manufacture or sale of goods has occurred [Mesuma Sports Sdn Bhd v Majlis Sukan Negara [2015] 2 MLJ 176 (Court of Appeal)]; (ii) using the mark in respect of a business conducted for profit, or a business of a specified nature, or a transaction with a person for a thing [Mesuma Sports [2015] 6 MLJ 465 (Federal Court)]; (iii) any dealing with the goods up to the time of the ultimate sale or delivery to consumers [Sony Corporation v Olivine Manufacturing Pte Ltd [1993] AIPR 186];

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Since Grey became

Black and White Lisa Lovell, CEO of Brand Enforcement UK www.brandenforcement.co.uk

Lisa Lovell, CEO of Brand Enforcement UK, delves into the law on ‘grey’ market goods. In August 2017, The Supreme Court ruled that it is a criminal offence to put ‘grey’ market goods on the market, just as it is for counterfeit goods. As most of us know, grey or ‘parallel’ goods, refer to the trade of a commodity through distribution channels that are legal, but which are unintended by the original manufacturer or trade mark owner. Before we look at the impact of the decision some eight months on from this key decision, along with our predictions, let’s remind ourselves of the facts of the case and the law which the Justices scrutinised.

The Law

A criminal offence is committed under s92(1) (b) if with a view to gain for himself or with intent to cause loss to another, and without the consent of the trade mark owner, he sells, offers or exposes for sale goods which bear, or the packaging of which bears, a sign identical to a registered trade mark. Section 92 is a remedy separate from those available for infringement of the monopoly civil rights that the trade mark owners have.

In a joint appeal from three criminal cases of R v M, R v C and R v T [2017] UKSC 58, the Court considered section 92 of the Trade Marks Act 1994.

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The Facts

The defendants were bulk importers and sellers of goods bearing top fashion brands’ marks, manufactured outside the EU. The goods were legitimately manufactured with the marks owners’ permission, but as is the typical definition of ‘grey’ imports or goods, these were in excess of the number permitted by the marks owners, or they were ‘seconds’ or rejects. The defendants asked the Court to distinguish grey goods from counterfeit goods. They also argued that the criminal sanction should only apply when a mark had been used in manufacture without the owner’s permission, unlike here, as all they had done was import and sell the goods without permission.

Evidence

Whatever kind of enforcement a brand owner is seeking to obtain, it all turns on the evidence. For any criminal or civil case to stand, the evidence must be collated correctly. Any physical evidence obtained must be presented to the court in the correct manner, along with the relevant continuity and expert witness statements. A well evidenced case will make the prosecution of any civil or criminal matter easier and will assist in convincing a defendant to plead guilty in criminal cases or settle in civil cases. With this in mind, ideally brand owners should also seek to show a pattern of behaviour which is more difficult for a defendant to “explain away”. In light of this Judgment trade mark owners should review the agreements they have in place with their authorised manufacturers to ensure that they deal with the issue of grey market” items by having strict controls over production and explicitly stating that such goods are not authorised, must not be sold by the factories and are to be returned to the brand owner or they should be de-branded and destroyed. *BEUK provide a Worldwide Test Purchase Service covering all evidential needs. See

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for further information.

The Decision

The Justices disagreed unanimously, rejecting those arguments, saying that it would be ‘strained and unnatural’ not to extend Section 92(1)(b) to dealing in grey goods. They took this view because s92(1)(b) concerns situations where goods, bearing a registered trade mark, are sold without the owner’s consent, not just where a registered trade mark is applied without their permission. This clarification to the law was of course good news to trade mark owners since they now have an additional tool for enforcing their legitimate rights.

The Impact

Since the decision in August 2017, we have seen that essentially; not much has changed, especially with regard to the powers of UK Border Force which the ruling does not apply to. Furthermore, since the ruling, albeit UK Trading Standards could in effect enforce grey imports in the same way as traditional counterfeits, the likelihood (and the reality) is that, without additional manpower or

resources, they are still as under-manned, under-resourced and have more pressing priorities than before.

- The brand may have to pay out before being refunded by Central Funds and if the case fails will be liable for the cost of the trial.

The most successful form of action for brand owners in such circumstances is civil enforcement, which is often more advantageous than criminal enforcement for a number of reasons;

Civil Enforcement

Criminal Enforcement

- It is unlikely the brand will obtain the assistance of UK law enforcement and therefore it will be unlikely a criminal prosecution will be brought on behalf of the brand owner; - In successful private criminal prosecutions, the infringers will receive a criminal conviction but it may be difficult for brand owners to know whether the conviction is being or should be enforced; - The standard of proof for a criminal action is higher than it is for civil (beyond all reasonable doubt v balance of probabilities);

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The Forecast

We forecast that brands will continue with their civil enforcement strategies largely the same as before. However, perhaps reference in the Cease and Desist letter that under current UK law the infringer is ‘committing a criminal offence’ may be a good point to note.

The Future

It’s too early to say what the longer term impact of the decision is, but our clients are pleased with the effect of the ruling and brand owners now have this additional weapon to apply some further leverage to dealers in their goods on the grey market. We anticipate that grey goods will be pursued just as vigorously, or even more than before. The message is simple; dealing in grey goods is now as illegal as dealing in counterfeit goods. It’s as clear as black and white.

The next question is; once the UK leaves the EU, will we revert to the law of International Exhaustion?

- Infringers will obtain an injunction against them which can be easily enforced by the brand; - The standard of proof for a civil action is lower than it is for criminal (beyond all reasonable doubt v balance of probabilities); - The Directors of the company can be sued as well as the company itself; - Costs and damages will be awarded to the brand which will reduce the brand owner’s financial liability; - Any funds received from civil enforcement can provide the monetary means for further action.

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IT´S ALL IN

THE MAPPING ‘Gabriela Bodden of Eproint explains the issues faced by IP Practitioners in the Caribbean’ The IP world faces challenges and the operation of IP infringers is perfected each day! Anti-counterfeiting is precisely one of the main obstacles IP rights owners and practitioners face in Latin America and the Caribbean.

Gabriela Bodden, Partner at Eproint www.eproint.com

What makes the challenges faced, different to other regions? Generally the Caribbean is classified as a ´developing region´ with a unique cultural diversity, idiosyncrasy and a magnificent geographical location. It is precisely the history of its people, in addition to the above factors, that make IP discussions such a sensitive matter within this region of the world. The challenges the Caribbean faces are very different from those faced by other regions around the world; however, the solution to

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this lies in the adoption of equal or similar remedies as those applicable in advanced nations. Consumers worldwide have become more sophisticated, demanding and are willing to pay a higher price for distinctive and specialised products and services. The Caribbean people have acquired a taste for excellence and this in turn provides an important market for international companies wishing to expand to the region. Over 70% of companies’ assets are intangible making IP rights holders focus on this shift and in the protection of their IP rights in the Caribbean.

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Legislation in the Caribbean Legislation is not uniform in the Caribbean, and the Caricom has not focused on creating such, therefore each country is slowly developing their legislation, in some, it is taking longer than anticipated, in others although modern, it is still not up to international standards. Sadly, the concept of ´modern IP legislation´ is inexistent in numerous Caribbean islands and therefore the difference in legislation is palpable from one jurisdiction to another. Islands like Jamaica, Trinidad, Dominican Republic, Cuba, Barbados and St. Lucia in the past years have enacted new trade mark legislation and this is definitely an attraction to foreign investment and in the promotion of the registration of trademark rights. In contrast, Guyana is today applying the United Kingdom Copyright Act of 1956 and since 2003 the Copyright Bill has not been enacted. Unfortunately in 2013 (thirteen years later)

Facing the odds

Proper protection of IP rights implies a difference between the failure and success of a company. IP has become such an important topic that rights holders are fully aware of the implications of not having proper legal representation and this in hand with the influx of the laws in the Caribbean demands proper care. Proper continuous training of the Registry personnel, who must deliver the service promised within the legislation, is also of importance. Sadly, there is still much needed training and this is where the hiring of knowledgeable professionals is vital (professionals with Masters Degrees in Intellectual Property, with years of expertise, directly in synch with the IP world and that are capable of understanding the IP process as such is vital).

Enforcement of laws & training for Customs officials The enforcement of laws is a major issue, as Customs personnel require adequate training. Training is suggested within Government but also on the part of IP rights holders in order to grant customs officials the knowledge to empower them in the recognition and differentiation of counterfeit goods from their original and authentic counterparts. It is also important to note that parallel imports are not illegal in most islands; therefore, exclusive distributors are faced with a problematic situation out of which they find it difficult to recover. This is where IP rights holders must focus and visit Customs in different islands and train them as to what their original goods must look like, sharpening their knowledge of the products and keeping a watchful eye against counterfeiting.

S N I A

M O

D the 2003 Copyright Bill is still not enacted and by the time it is, it will also be outdated. This goes hand in hand with adequate trademark protection as many trademarks are also protected via copyright. The Cayman Islands for instance has recently enacted brand new trademark legislation and no longer provides for the filing of trademarks based on registrations successfully completed in the United Kingdom. This too is the case of Antigua and BVI. Although modern laws are not the norm in the Caribbean it is clear that more and more islands are recognising the importance of affording adequate protection to IP rights and eventually promoting the enacting of similar legislation in other islands.

In tandem, with proper training of the IPO personnel, adequate and updated IP legislation, proper Customs Authorities border protection (aimed to prevent the importation of counterfeit goods) and the possibility of Customs trademark proprietor database registrations (that will enable Customs to ascertain the contact details of trademark rights holders or representatives in a particular territory), I also strongly suggest the creation of a specialised Intellectual Property Tribunal in major jurisdictions where the volume of cases justifies it. Such a judicial body would in theory directly resolve on IP related matters.

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Planned Mapping as a solution Most IP rights holders certainly know the countries of origin of counterfeit goods. Planned mapping (as to the origin of such goods) can be made in advance if coordinated with Customs authorities in the country of origin in a way that the goods are ´´tracked´ throughout their entire route and finally intercepted upon arrival to the destination country. Such actions should also motivate legislators to enact modern laws with severe penal and monetary consequences for infringers, because counterfeiting is a crime that originates in the mapping route of counterfeited goods.

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gTLD’s as an alternative

Untangle domain

name management As you are probably already aware, simply registering your trademark is not enough to protect it online. Bart Mortelmans (general manager of bNamed. net) discussed with us the importance of domain name registrations to protect your online intellectual property. He also tells us about what can be done to get the maximum out of this. He has a clear vision on this: “We have seen domain names become more and more important over the last decades, turning into an unignorable part of the protection of Intellectual Property. Our mission is to provide the level of support you would be accustomed to regarding IP-protection, but at domain name level pricing.”

Bart Mortelmans, General Manager of Bnamed www.bnamed.net One of the problems you will certainly be confronted with while protecting your IP online is to decide where to protect and where not. Bart: “A couple of years ago, many of our clients requested their trademark to be registered under every single domain name extension. At that time, that meant all country code extensions and just a few generic extensions like .com, .net and .org. Since the launch of the so called ‘new gTLD’s’, that is no longer feasible.”

Country Code extensions

It is not always necessary to register all country code extensions; however, country code extensions still play a very important role. People can be chauvinistic regarding domain names. The Singaporese assume a domain name will end in .sg, the Germans assume .de and the Portugese .pt. In practice, when

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someone doesn’t know the exact address of a website, they will first try to find the website under their own country code. It is therefore important to target your customers and take into account your main market and the country code extension. So the first thing to do is to protect your brand under the extensions of the countries you’re doing business with, or to which you expect to expand in the future. If you’re active on the British, Spanish and German market, register your brand as a .co.uk, .es and .de domain name. But if your only focus is the Japanese and Taiwanese market, then those European country codes will not be relevant for you and you should first of all make sure you have your primary market covered. For example; are you considering expanding your business to South America? Then do make sure to already register your brand under the most important South American extensions.

So country codes remain important but the so called ‘new gTLD’s’ can offer a nice alternative. These ‘new gTLD’s’ such as .shop, .hosting, .computer, .london, .paris, .berlin, .bank, .insurance,... were launched a few years ago and most have been completely enrolled. Bart: “We must also be honest that most gTLD’s have only limited popularity. As said a .de works best for Germany, but if you are headquartered in Berlin a domain name under .berlin can be a nice added extra. The same goes for .london, .paris, .brussels, .nyc,... Other new gTLDs have found their way to the general public. The .shop domain is a good example of this. The next, possibly popular gTLD that is being launched is .app. There is already a healthy amount of interest for this, but of course it always remains to be seen. According to Bart the ‘new gTLD’s’ can also be a way to show your core business. If you’re a bank or insurance company a .bank or .insurance domain name is a nice extra. It’s immediately clear what services you’re offering. Moreover before you can register your name under .bank or .insurance, you need to run through a whole registration process so if you register your name under those extensions, it also shows you’re trustworthy. Obviously bNamed can help and assist you every step of the way.”

Protect yourself, are you sure you are secure?

Protecting your IP online is important but are you sure your protection itself is secure? This can be done via centralising your domain names with an independent registrar. The relationship with a web designer can sometimes blur or you may receive a better offer from another webhoster. If your domain names are managed by an independent party you can switch quickly and you can even combine different providers for different services, like webhosting and e-mail. You’ll never have to worry that your precious intellectual property (for that’s what domain names are) is taken hostage because of a dispute regarding an invoice for that web design that never got off the ground.

Centralising domain names

Name Server diversification

Another way to protect yourself and make sure your domain names keep functioning is name server diversification. Bart: “The name servers are the basis of your domain name. If they don’t function, nothing does. In the past some major internet companies, such as Twitter and Spotify, went offline for a couple of hours because their very trustworthy name server provider was attacked by a so called DDoS. The attack wasn’t aimed directly against Twitter or Spotify but they were ‘collateral damage’.” The conclusion is clear: there’s only one way to make sure you don’t get hurt if your onlineneighbour is attacked and that’s by combining different name server services. Bart: “We for example offer you the possibility by one simple click to combine our name servers with the cloud name servers of Google. If you wish you can also add special anti-DDoS name servers.

In many companies domain names are currently registered here and there. This easily causes things to go wrong. If you miss a renewal deadline, your domain name can go offline or can even be lost completely. In many cases it’s also not clear who has control over the domain name and who has the correct login information when an update is needed. As seen, way too often, names are even registered in the name of a branch, a local reseller who now no longer exists or even an ex-employee. The centralisation of the domain names solves those problems and is also financially interesting, because grouping more names, of course, also means a bigger discount.

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An SSL certificate for your website needs to come from your marketing budget!

Nowadays security is key. Your clients want to know both you and your website are trustworthy. Therefore an SSL certificate has become a bare necessity, especially when your clients are able to instantly place an order on your website. bNamed.net has done some extra research for SSL certificates and discovered such certificates also bring along a hidden extra added value; the publicity and customer trust you’ll gain by using such a certificate. Although this might seem surprising, this is exactly why an SSL certificate is also a great marketing tool.

For instance, the extra publicity you’ll get via Google. A while ago Google confirmed they’ll give a higher ranking in the search results to a website which is secured with SSL than to the exact same website without a certificate. Obviously you don’t automatically end up at the top of the page but it does give your site a little extra push in the right direction. A higher ranking means more visibility, thus a higher click through ratio, which means more people will end up on your site. All those people are potential clients, so the more the better.

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Extra sense of security

Equally important is the extra sense of security and confidence such a certificate generates, especially if you’re using an Extended Validation (EV) certificate. Bart: This certificate makes the address bar of your browser turn green and is an indication your website can be trusted. It costs a little more but it’s definitely worth its price given the extra trust you’ll gain. The perception of extra security boosts the confidence of your visitors and stimulates your clients to actually buy something on your website. In comparison with a few years ago, it’s now also easier to obtain an EV certificate while the validation is still completely accurate.”

Quick registration & easy domain name portfolio management .com.ar .sg .sk .co.nz .ro .bike .it and many more... .si .lv .com.au .ch .dk .hosting .us .brussels .fi .pt .jp .es .gr . e u .se .cz .de .be .net .fr .nl .li .com k .lt .lu .u .ru .cr .pl .ie .com.br .no .company .bank .hr .ae .fi .shop

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info@bNamed.net www.gipmatrix.com

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“Herbicide

goes bananas” Vladimir Biriulin, Partner at Gorodissky & Partners www.gorodissky.com

‘Vladimir Biriulin, Partner at Gorodissky & Partners’ discusses a complicated & lengthy case

PATENTS

Injunction questioned and waived

From the very start, this case of infringement followed a very ordinary route: a patent for a herbicide was infringed while the infringer retaliated by trying to cancel the patent because it allegedly did not comply with patentability criteria. Simultaneously, the patent owner fell out with one of his former colleagues who had sued him and sought injunction for the patent. The injunction was granted and in turn it became a major obstacle in examining the patent cancellation case. The case went to IP court during which it was explained that an injunction should not come in the way of examination of the patentability of a patent. As a result, a number of claims were excluded from the patent and the infringement was not proved. This was a multifaceted case involving several persons and several courts dragging on from 2015. The conflict started after the court action which was initiated by JSC August, owner of patent No 2488999 for infringement of its patent for a herbicidal composition (Status Grand) and a method of fighting weeds (Case No A40-189533/2014). The court suit was filed to the Moscow Commercial Court against Zemlyakoff Ltd and sought to forbid the respondent to produce and market the herbicide and also stop the procedure of state registration of that herbicide.

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Chamber of Patent Disputes examines appeal! As it often happens, the respondent retaliated by filing an appeal to the patent office seeking to cancel the patent because it did not comply with the patentability requirement ‘inventive level’. In its statement of defense the patent owner, fearing that his patent would be cancelled submitted an amended set of claims; drastically narrowing the scope of the claims. According to the appellant (Zemlyakoff), the amended claims halted grounds from under the infringement claims, which should have led to renunciation of the court claims against Zemlyakoff, the alleged infringer. Coincidentally and unrelated to the above, before the appeal was examined

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by the Chamber of Patent Disputes, the representative (physical person) of the patent owner (JSC August) sued him for non payment of remuneration for rendered services in a district court far away from Moscow where the infringement case was pending. Within the framework of that remuneration court case a certain amount of money was claimed, as well as a preliminary injunction forbidding the patent office to take any action in respect of the patent; this was granted on July 20, 2016. The parties in the conflict also had earlier signed a security agreement in respect of the patent. However the owner of the patent did not register the agreement so it did not come into effect. The respondent in the infringement case (Zemlyakoff) appealed the ruling of the district court regarding injunctive relief in the appeal court and managed to obtain a ruling overriding the ruling of the district court. The appellant (Zemlyakoff) asked the patent office to resume consideration of the appeal concerning cancellation of the patent. However this did not save the situation, the patent office did not start examination of the appeal all the same because neither the law nor regulations limit the time span during which the appeals should be examined by the Chamber of Patent Disputes.

Plaintiff argues that case wasn’t examined for long enough!

As a result of that, the patent office suspended examination of the patent cancellation case and of amendments to the patent claims. Furthermore, the respondent in the infringement case (Zemlyakoff) sued the patent office (the Chamber of Patent Disputes is subordinate to it) in the IP court for its reluctance to consider the patent cancellation case. Zemlyakoff (the plaintiff in this case) argued that the patent office did not examine the patent cancellation case for a long enough time (about two years) and thus violated his rights and lawful interests. The patent office pointed out in its statement of defense that the ruling on injunction had been issued by court and it forbade the patent office to take any action in respect of the patent including examine cancellation of same. It also ignored the ruling of the appeal court cancelling the injunction. The representative of the patent owner who had previously rendered services to the patent owner wanted to be engaged in the IP court procedure as a third person, however the IP court turned down the petition, explaining that the conflict concerned observance by the patent office of the administrative procedure which relates to the examination of appeals and was not a case related to the cancellation of the patent.

The IP Courts take time limit into consideration

The IP court pointed out during the hearing that indeed, the hearing had been scheduled for October 2015 and since then was put off multiple times, some of these times on request

of the patent owner. The IP court recognized that in accordance with the provisions of the Code of Procedure, interested persons might apply to court and demand cancellation of unlawful decisions and actions taken by the patent office. The IP court referred to the legal position of the Constitutional Court (No 448-0 of March 10, 2016) according to which excessive or indefinite terms of examination of conflicts lead to instability of legal relations and can create uncertainty. The court rightfully noted that the absence of time limits set by law in the administrative proceedings may endow the patent office with unlimited powers to decide when a dispute will be considered, which is inadmissible by virtue of Article 46 of the Russian Constitution and the Convention on Human Rights. The Constitutional Court pointed out in its ruling that other courts had already pointed out on a number of occasions that legal regulation was not adequate in that respect and that performance of functions of the patent office were not satisfactory. Following on from that, the time limit was taken into consideration; consideration of an administrative case should be determined even before an appropriate regulation is adopted. Non-consideration of the dispute within reasonable time signifies unlawful failure of the patent office to act. The reasonable term of consideration of a case should be evaluated in each particular case from the point of view of the workload of the patent office and other objective circumstances. At the time, the appeal in question had been considered for two years already. The patent office did not refer to its workload but stated that an injunction had been imposed on the patent forbidding the patent office to take any action in respect of the patent, including examination of the appeal an taking a decision on the appeal.

“Injunction construed too broadly” says the IP Court

The IP court confirmed that there was an injunction imposed on the patent but Zemlyakoff Ltd appealed the injunction in the appeal court and the injunction was cancelled. As has been mentioned above the injunction was imposed at the request of the representative of the patent owner who did not pay her and with whom there was a signed (but not registered) security interest agreement in respect of the patent. The appeal court noted that the court action, initiated by the representative of the patent owner was of proprietary nature (non-payment of remuneration) and that application of injunctive relief could not guarantee fulfilment of monetary obligation by the patent owner. Besides, the ban to take any action with regard to the patent violates the rights of Zemlyakoff Ltd. In fact, the ban to examine the appeal against the patent is an additional injunctive measure and it does not match the purpose of application of injunctive measures. Hence, the court came to the conclusion

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that the patent office construed the injunction too broadly. As a result, the IP court obliged the patent office to examine the appeal against the grant of the patent within a reasonable time period and herewith, the court set the term of three months to examine the appeal and report to the court.

Appellant tries to kill the patent completely!

In pursuance of the IP court judgment, the patent office (the Chamber of Patent Disputes) examined the appeal in October 2017. It stated that there were eight claims in the patent. Inventive level was questioned by the appellant. The appellant provided 32 sources of information (patents, publications in magazines, catalogues, even the USSR inventor’s certificates) to prove that the invention lacks inventive level. The Chamber of Patent Disputes stated that the invention according to Claim 1 may be considered as evident on the basis of combination of information from a number of sources. Similar conclusions were made in respect of some of the other claims. All in all, there were more than twenty pages of detailed analysis of the patent claims and anticipating documents; this led to the Chamber of Patent Disputes also concluding that some of the claims of the invention lacked novelty. The patent owner tried to acquit himself but failed. He was compelled to submit amended version of claims, which satisfied patentability criteria. The appellant submitted additions to the appeal trying to kill the patent completely, however the Chamber of Patent Disputes preserved the patent with the amended claims. So, the patent was recognized invalid in part and a new patent was issued. The appellant was satisfied because the new claims ruled out recognition of infringement on his part.

Finally this very long conflict was brought to an end!

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RUSSIA: renewed patent litigation tips Irina Ozolina, Senior Partner at A.Zalesov & Partrners www.azalesov.com

Irina Ozolina, Senior Partner at A.Zalesov & Partrners, talks about renewed patent litigation tips in Russia and outlines why you should choose Russian Courts.

Still, judges hear reasonable references to prior art, file prosecution, history argumentation and position of parties in invalidation procedure. Second - bad faith behaviour of a patent owner is put on the judges’ table when judges consider patent infringement cases; although courts have never been known to refuse in patent suits just because patent owners behaved improperly, recent court decisions highlight this issue more often as an additional consideration to other motives of refusal.

Why choose Russian courts & what to consider

Third - courts’ requirements to a claim’s wording are more formal. Common practice is now to refuse in a claim aiming to destroy infringing goods, if there is no evidence, which goods should be destroyed, where they are and who is the owner.

Multinational companies more and more often choose Russian courts to resolve IP disputes. Here are some statistics: in 2017 the IP Court as a cassation instance considered 840 infringement cases, 160 of them - with participation of foreigners; 45 of all the infringement cases were patent infringement disputes. Patent litigation in Russian is fast, comparatively inexpensive and quite effective. But there are important particulars to know before starting a patent litigation in Russia. First - bifurcated system: infringement and invalidation grounds are considered separately.

Fourth – nobody tried non-infringement suits to come to the Intellectual Property Court, but in the first instance they are normally refused. Last but not the least - compulsory license claims are intensively discussed, however they have not come into practice yet. The first case dates back to 2012 (case No А40-83104/11), now at least one claim for compulsory license is pending, but stable court practice is to be waited for. Other tips also should not be omitted in patent strategy.

s p i T

n igatio t i L t n Pate

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Obligatory warning letter

In July 2017 an obligatory pretrial procedure was finally set up in case: - both parties are legal entities or individual entrepreneurs; - the dispute is under jurisdiction of arbitration courts; - patent owner claims for monetary compensation or damages. If the counterparty refused to satisfy claims amicably or did not respond within 30 days after the letter was sent out, the patent owner could go to court.

Practice differs, what exactly should such a letter comprise

Ruling of the Intellectual Property Court (as of July 10th, 2017, А41-63873/2016) agreed with courts of previous instances, that a suit should strictly stay within the amount initially indicated in a warning letter. In

another Ruling, (as of August 30th, 2017, A364979/2017), the court said that there is no good reason to require from a plaintiff to exactly know the amount of the claim in advance. The warning letter should point out an infringement; comprise reference to possibility of compensation, suggestion to settle the case and warning that otherwise the sender is going to court.

Collecting evidence to keep the balance

Russia does not have any disclosure. It is not an omission, it is a principal position: no data should be easily provided to a competitor unless required by courts. How to prepare a case then? Collecting evidence needs ultimate creativity. Documents and information may be requested by an advocate. In the Russian legal system till now (although it’s going to change in the near future) any person can represent others before the courts, with some exceptions. Still, only advocates have some privileges, and the privilege to request evidence and information is one of them. To compensate for lack of disclosure, the courts are open to demand evidence from third parties. Till recently courts demanded evidence mostly from customs, but hesitated to demand evidence from other governmental bodies. In 2016 courts started demanding documents from the registration dossier in the Ministry of Health (cases А41-22640/2016, А4112918/16, А40-197005/16). When demanding evidence from third parties, courts have to keep the balance between data protection rules and patent owner rights. Due to clause 6 article 10 of the Law «On Commercial Secret», commercial secret regime cannot be used against protection of other parties’ rights. Additionally, procedural law contains enough mechanisms to ensure, that sensitive information of defendants is not disclosed: a party can file a motion for closing hearings, as it is done by the defendant in the case А40197005/16. Such attitude relies on position of the Constitutional Court as of March 27, 1996 No 8-П, as of November 11, 2002 No 293-O, and Plenum of Supreme Arbitration Court as of October 8, 2012 No 61.

Preliminary injunctions are they real?

Theoretically preliminary injunctions are available due to part 2 article 1252 of the Civil Code and article 90 of the Arbitration Procedural Code, in case of failure to impose them, it can result in significant losses to the patent owner or irreparable harm or in the case of not applying such measures, this can make the future final court act unenforceable. To prevent causing irreparable harm to the plaintiff, the Plenum of the former Supreme Arbitration Court (Ruling as of October 12, 2006 No 55) says, PI should be targeted to keep status quo between the parties. Specific PI should be proportional to the claims and should ensure the claims. Due to these

requirements preliminary injunctions in patent cases are in fact not applied by courts. Here are a number of illustrative cases, when courts refused to suspend supplies of presumably infringing pharmaceuticals under governmental contracts: cases N А41-1841/11 Novartis vs. F-Synthez, А40-30124/15 Pfizer vs. Pharmasynthez, А40-114689/12-5-1062 Novartis vs. F-Synthez. Such suspension, due to the courts, doesn’t help to keep status quo between the parties, since the patent owner may always require reinstatement of damages, if it appears that the patent was infringed. At the same time not fulfilling the obligations under the contract can put the business reputation of the defendant under threat and this is much more difficult to restore.

A threat of infringement?

Article 1252 of the Civil Code says that a claim can be filed against actions creating a threat of infringement. This rule was not applied for a long time, because basically the Russian law does not know civil liability for preparations to infringements. A couple of years ago the concept of a suit against the threat of infringement was renewed for professional discussion due to the revival of the concept of the so called «preventive suits», initially dating back to eighties. In 2012, the Federal Programme «Development of the court system» suggested to develop the concept of preventive suits and gave rise to a discussion; whether a claim against actions creating a threat of infringement can be considered as a preventive suit? Since preparations to patent infringements can be easily traced in the pharma field; where information about marketing authorisation and price registration is publicly available, the concept was tried recently in some pharma cases: for example, cases А41-46966/15, А41-85807/2016, and А40-170151/17. It is interesting that the court accepted such construction of claims (to prohibit actions creating a threat of infringement) and satisfied them only in the second case, though in the last case another court in similar circumstances considered this construction as unacceptable and refused the claims. By the time this article is published the last two cases should come through the Intellectual Property Court as a cassation instance, which should say its respective opinion, whether this concept is going to survive or not.

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In-court patent examination - a «queen of evidence» Due to the procedural law all evidence has the same force. Still, in practice an in-court examination became a «queen of evidence» in patent disputes. Particular feature of patent disputes in Russia: parties can provide opinions of different experts, but they are not treated as «expert opinion» in a procedural sense. A truly expert opinion is one which is made by an expert nominated by the court. The parties suggest different candidates, list their credentials, suggest questions, put money to the deposit of the court, and after that a judge decides which expert should be nominated and which questions should be asked. An expert should be independent from any of the parties, so his opinion is paid for by the court for money previously paid on the deposit, and it should be very carefully observed, that the expert used has never provided any payable services to any of the parties or their representatives. Judges, who really want to go into case particulars, nominate a commission of experts: normally one from each party. Actually, this is the best way to ensure impartiality and compliance to adversarial principle, which are the basics of the Russian procedural law in economical disputes.

Monetary compensation

The patentee can claim for damages (and prove their exact amount) or monetary compensation (without proving exact amount). Monetary compensation can be a lump sum (from EURO 140 to EURO 70 000) or a double reasonable royalty rate. In practice the courts are not too generous to satisfy monetary claims in large scales. Ultimately, there are many other tips and factors to take into consideration when starting a patent litigation case in Russia; a short overview cannot cover them all. What is important is that Russia is a huge market with a large capacity; therefore it is very lucrative for both patentees and their competitors. At the same time patent litigation in this jurisdiction has in recent years become very professional and therefore much more predictable and is now a proper and balanced tool in the competition struggle.

2018 AIPPI World Congress – Cancun September 23 - 26, 2018 Cancun has so much to offer, from its incredible local cuisine to the natural beauty of its beaches. It boasts well-preserved archeological history and world-class infrastructure, along with five-star accommodation and amenities. AIPPI offers you the chance to experience all this and more at the World Congress from September 23 to 26, 2018. Take advantage of the Early Bird rate by June 12 to secure a reduced registration rate. We look forward to joining you where sky meets earth!

The programme boasts a vast range of topics covering the entire field of intellectual property: PANEL SESSIONS

Trademarks/copyright

Pharma Day

• Personality rights – it’s all about me ©™®

• Access to medicines – what’s fair? • The endgame: patent term extensions and SCPs

Trademarks

• Biosimilar litigation – dissimilar considerations?

• Use it or lose it – genuine use of trademarks

• Big Data and Big Pharma

• Surveying the field – a gold standard for survey evidence

General

LUNCH SESSIONS

• Free Trade Agreements – drivers of IP policy?

Lunch Session 1

• Briefing: hot topics in IP

• Trademarks, morality and “The Band Who Must Not Be Named”

• Artificial Intelligence – the real IP issues

Lunch Session 2

• Alternatives for enforcement: criminal and administrative proceedings

• Briefing: recent developments in IP5 cooperation Lunch Session 3

Patent

• Blockchain and cryptocurrencies – all you need to know

• Standard essential patents – maximising value before enforcement • A means to an end – the doctrine of equivalents

PLENARY SESSIONS

• Harvesting innovation in agriculture – patents and more

• Conflicting patent applications

• Out of term – provisional and post term enforcement

• Partial designs • Registrability of 3D trademarks

• Joint liability for IP infringement

• A balancing act – copyright versus other rights • Linking into the digital era

More information on www.aippi.org

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The Art of

Patent Busting

Specialist global search services for patent attorneys, universities, technology companies and SME’s

Dean Parry (Technical Director) Patent Seekers Ltd www.patentseekers.com

“Thousands of patents get granted every year, but this doesn’t mean that they all should have been.” Mr Dean Parry – Technical Director at Patent Seekers Ltd for the last 14 years, having been involved in more than 14,000 searches, for international patent attorneys both in private practice, in-house and for major blue chip companies, discusses the best approach for breaking patents:

So, what is all this patent business about?

Well, a patent in simple terms is an agreement between governments and inventors (or their employer). Governments agree to allow an inventor a monopoly over an invention (for up to 20 years) in exchange for the full disclosure of the invention in the form of a patent application. The scale of the monopoly is defined by the claims of the patent. If the patent is given the all clear (granted) by patent offices, then its owner can licence the invention or prevent others from manufacturing and selling it in the countries concerned.

at least reduce its monopoly (if this will allow the infringement action to be dropped).

Not all patents are valid

“Thousands of patents get granted every year, but this doesn’t mean that they all should have been.” There are many reasons for this: 1) For a patent to be granted, the invention defined in the claims must be new and not be obvious to a person skilled in the technical field. This assessment is made on a “worldwide” basis. It’s impossible to check all published data to ascertain this. 2) Patent examiners may have expertise and excellent search tools to search worldwide patent and non-patent sources, but they often have heavy workloads, given the increasing number of patent applications each year, and so may have a very limited time to carry out their searches. 3) Patent examiners primarily tend to search patents, topping up their searching with non-patent information. This can leave a gap in the coverage, as there may be a lot of potentially relevant information in technical papers, competitor advertising, video demos, etc.

Patents can be wrongly classified, meaning that although the patent examiner is searching in the correct patent classes there may still be relevant patents that are missed. 5) Poorly translated patent information can easily be overlooked. 6) The quality of searching can vary from one patent examiner to the next and from one patent office to the next. Search experts will consider the above in determining the most effective strategy to use to attempt to break a patent. The approach should always be to avoid re-running previous searches carried out during the prosecution of the patent (and possibly its family members), and instead carry out a more focussed search and/or look in more depth and consider where better results may be classified.

Patentability/Novelty Search Infringement/FTO/Clearance Invalidity/Patent Busting State of the Art Patent Mapping/Landscapes Patent Monitoring Patent Status Competitor Analysis

Where to start when checking?

The best place to start is to identify if the patent we are trying to break (known as the “patent in suit”) has been attacked before and see why the action failed. This may provide information on the “new and inventive” element that needs to be found to break the patent in suit. If the

To prevent third parties form manufacturing and selling an invention a patent infringement action can be brought about. These are often seen in the press where one company is challenging another through the courts, for example the ongoing legal fight between Apple and Samsung over patent infringement relating to their smart phone technologies. This kind of action can result in damages of millions of dollars.

Tel: +44 (0)1633 816601 Email: mail@patentseekers.com www.patentseekers.com

This brings us on nicely to the world of patent busting and why it is needed. When a company is threatened with patent infringement, the first course of action should be to question the validity of the patent being used against them, to see if the patent can be broken (revoked) or

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patent hasn’t been attacked before then check if there are family members which have been, (patents tend to be in families covering more than one country). Also check any correspondence between patent examiners and the applicant issued during the examination of the patent in suit from application to grant. This can give valuable insight into the patent examiner’s view on what made the invention new and sufficiently inventive for a patent to be granted in the first place, and which would need to be found to break the patent. In some instances, it is also possible to look at the search carried out by patent examiners to see if there is anything obvious that was missed, e.g. potentially relevant patent classes that were not covered for some reason. Another important check would be to find out if the patent in suit is entitled to its priority date as there can be instances where the priority date is not valid, in which case the filing date would be the date from which the patent was valid. Next consider which of the claims of the patent in suit appear to relate to the product you are manufacturing and/or selling, as these will be the ones that you most likely need to break. Once the above checks have been made the next step is to put together a search strategy.

Developing a search strategy Patent searching:

A patent search strategy is based around trying to put together keywords and patent classes which would most likely find earlier patents and published patent applications (or “prior art”) disclosing information that can be used to challenge the novelty and/or inventiveness of the patent in suit. Keywords and patent classes can be identified by looking at the wording and classes for the patent in suit and by checking these on its

forward and backward citations (patent in suit cited against other patents and patents cited against the patent in suit, respectively). It’s important to use keywords across various languages, in particular English, French and German. There are various free and commercial patent databases available to carry out the search. Many commercial databases now include machine translations (some good, some bad) for prior art that was originally published in Chinese, Japanese, etc.

Non-Patent searching: There should always be consideration for non-patent prior art. This may take the form of searching scientific papers/journals and looking for products on sale, video demos etc, depending on the invention covered by the patent in suit. The big factors to consider for non-patent prior art is that it must be what is known as “enabling disclosure” – there must be enough information to carry out the invention – and you must be able to determine the “date of publication”, as it must be proven to have been published before the effective filing date of the patent in suit, otherwise it may be unusable.

Bringing it all together Once the search is finished, if you have found new prior art that discloses all the technical features of the patent in suit, i.e. it is “novelty destroying”, there is a good chance of breaking the patent, or at least limiting its claims. However, even without novelty destroying prior art, the patent in suit may still be vulnerable to an attack on the basis that is not sufficiently inventive. When challenging inventiveness, it is possible to combine two or more prior art documents together if they are in the same or neighbouring technical fields. The argument is normally that it would have been obvious to the skilled person to combine the documents to arrive at the invention in the patent in-suit without any inventive activity.

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It’s important to check all family members of patents cited on the patent in suit, in case they can be combined with the results of the search to form inventive step arguments. Likewise, check the citations on any good results found during the search as these can lead to even better results. Also, check the assignee and inventors on any good results found to see if they have filed any other patents that may be closer. Novelty destroying prior art will always be the strongest attack because it is seen as absolute (either the invention was new, or it wasn’t). On the other hand, inventive step arguments can be subjective (was it obvious to combine prior inventions or not…?)

To conclude;

Companies need to be aware of the power of patent busting because not only can it be used to effectively defend against an infringement action, it can also be used to end a monopoly that prevents a company from entering a market or even to help to determine the strength/value of your own patents. When considering carrying out a patent busting search, it’s important to use a specialist to check prior prosecutions and statutory searches and examinations to determine the scope of the search, the appropriate sources to search and the best strategy to maximise the chances of finding key prior art. This process is improved by maintaining good communication between the searcher and the attorney, with input from the end client to agree the best way forward.

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Immersion Corp’s Patents

Haptic Feedback –

making digital more physical Ms Doris Spielthenner, General Manager, Practice Insight www.practiceinsight.io

Ms Doris Spielthenner, General Manager of Practice Insight talks about patents in the up and coming technology world.

Haptic feedback, explained…

Last month, Immersion Corp, a US based Technology Company that develops touch feedback technology for mobile, virtual reality, wearable and gaming applications entered into a multi-year license agreement with Robert Bosch GmbH. The license agreement provides Bosch with access to its patented haptic and touch feedback technology for automotive

applications. Anyone who follows Bosch’s R&D would understand their interest in haptic interfaces, i.e. interfaces with a haptic (pressure or touch) feedback for touch screens. In the last few years, Bosch has used this technology in their product ‘neoSense’. They have also showcased their new developments at various trade events stating that this is their vision of how touch screen interfaces should be in cars. They are also stating how important it is to make the touch screen experience as unobtrusive for drivers as possible. A few years back, there were many different visions for how the automobile of the future would be. Slowly but steadily, these visions seem to be converging to autonomous and electric, with some variations in electric such as hybrid, fuel cell, still being pursued. Overall it seems that the common agreement is that

Coming back to the licensing agreement between Immersion Corp and Bosch, the origins of their licensing deal can be seen through the citation connections between Bosch’s and Immersion Corp’s patents. Using Citation Eagle, in 2015-16 we can see three patent applications from Bosch citing four patents assigned to Immersion Corp. These three patent applications were for ‘Control and Regulation Device’, ‘Layer Arrangement and Input / Output Device’, and ‘Touch screen with a haptic detectable orientation element and the method of manufacturing the same’. i - Citation connections between Immersion Corp and Bosch. Source: Citation Eagle

appears, though, that Bosch is not the only automotive player interested in Immersion Corp’s technology. The citation connections between Immersion Corp’s patents and patents from other automotive players sheds light on which other automotive players are interested in Immersion Corp’s patents. ii - Forward Citations for Immersion Corp’s patents for past 3 years. Source: Citation Eagle These automotive companies include Audi, Honda Motor, Harman International and Continental Automotive, all of whom have patents citing Immersion Corp’s patents. Harman International though, have the highest amount of citation connections that cover all Haptic related technologies e.g Haptic notification systems, Haptic audio delivery mechanism etc.

Given that the technology can be used in so many other areas – ideally any application with a touch interface – the citing companies for Immersion Corp’s patents are also varied in terms of industries. 1.

2. 3. 4. 5. 6.

Smartphone & Mobile Devices – Apple, Microsoft, Sony, Koninklijke Philips, Samsung, Motorola, Panasonic, and LG Electronics Medical and Healthcare Devices – Ethicon, Alliqua Biomedical, and Intuitive Surgical Operations Appliances – BOE Technology and Electrolux Virtual Reality and Gaming (Display & Audio) – Oculus, SonicSensory, and SubPac Semiconductors – Intel Retail – Walmart Stores

I t

the cars of the future will be autonomous. One other vision that has quickly become visible in many cars now is a digital control system interface. Cars have already begun to be built with control interfaces similar to tablets and smartphones rather than an interface of analog controls. However, a shortcoming of the traditional touch screens is the lack of touch confirmation that humans are used to. For example, with an analog control, your fingers get a sensory confirmation of a button being pressed or a dial being turned, whereas with traditional touch screens work quite differently. However, Haptic touch screens have been built to give the user a physical confirmation of an action being performed on the touch screen. This is a feature that Bosch has been focussing on for sometime. i - Citation connections between Immersion Corp and Bosch. Source: Citation Eagle

ii - Forward Citations for Immersion Corp’s patents for past 3 years. Source: Citation Eagle

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With Immersion Corp’s many citations and the interest from other companies, you can be sure that the company is actively filing and monetizing patents (Immersion Corp has been in the news for quite a few times because of their infringement lawsuits against Apple, Fitbit, and others). Immersion Corp is a great example of a company that a law firm would want to work with due to their patent activities. Given the application potential of their innovation and its future demand, this should bring with it the opportunity to upsell licensing deals and increase the monetization of their patents.

PAT EN T S | T R A D EM A R K S | CO P Y R I G H T S | T R A D E S EC R E T S

Their US representation is comparatively much more competitive with three firms fighting for the top spot, while their Korean representation shows than more than 96% of their work is handled by a single law firm. Filing Analytics shows that ‘Law Firm B’ handles the most of Immersion Corp’s EP work. When we drill down to see the US case flow exchange ‘Law Firm B’, we see that there are three US Law firms working mostly with ‘Law Firm B’.

From these three US law firms, ‘Law Firm 2’ and ‘Law Firm 3’ are the top two law firms that are representing Immersion Corp in the US. It is quite probable that Law Firm B is the end clients ‘Immersion Corp‘, preferred choice for their EP representation. This as an example shows that a detailed analysis of the case flow exchange, such dependencies and preferences can be clearly seen when doing a thorough competitive analysis for a company like Immersion Corp.

How to target a company like Immersion Corp

To target a company like Immersion Corp, it is important to know which law firms you would be competing against and where you might have lesser competition.

46th Annual Meeting

As a first step, it’s interesting to see how the case flows for a company which is being handled. You can also see in which jurisdictions a company is more likely to work with new law firms, and in which jurisdictions a specific law firm is doing the majority of their patent work. For example in Filing Analytics, we can see that the EP representation for Immersion Corp is mostly done by a German law firm, but that they also use a few other law firms.

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iv - International exchange for ‘Law Firm B’ (EP-US). Source: Filing Analytics

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iii- EP patent application representation for Immersion Corp. Source: Filing Analytics

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The firm was founded by Joseph Antoine Onambele, 30 years ago, he was later joined by Mary Concilia Anchang. As Founding and managing partners they have through their dedication and hard work built an international bilingual and bi-jurial Full service law firm, based in Yaoundé Cameroon. OAA law is proud to be the first Bilingual Law firm in the Country practicing in both, Civil Law and Common Law jurisdictions. A full-service corporate law firm, OAA law serves clients in a diverse range of industries, and has over the years grown to include coverage of the CEMAC region and globally. Due to her broad based corporate capabilities, she represents and assists clients in matters that include intellectual property filings and litigation, mergers and acquisitions, telecommunication, mining, real estate, finance, corporate Law, project finance and joint ventures in infrastructure. OAA Law delivers high quality and highly efficient services to its clients. OAA Law is a pioneer Law firm in Intellectual Property, Corporate Law and Mining Law in the Region The firms practice over the years has grown to include coverage of the CEMAC region and globally. Senior partner Joseph Antoine Onambele is the past president of the Cameroon National committee of The International Chamber of Commerce.(ICC) Mary Concilia Anchang is the pioneer IP lawyer in the OAPI region. She is also the pioneer t African female court member of the International Court of Arbitration, ICC Paris. She represented her country, Cameroon in this capacity from 2006-2010. She is the current founding chair of the African Chamber of Trade & Commerce. (ACC) OAA Law offers experienced and well travelled attorneys. Their maturity in legal services has been achieved through innovation, resilience, research and hard work for clients across the globe. Address: Opposite United States & Saudie Arabia Embassies Rosa Park Avenue-Golf Ntougnou P.O Box 662 Yaounde-Cameroon. Tel: +237 222 209 776 / +237 677 581 551 Email: oaalawpartners2@gmail.com / info@oaalaw.cm website. : www.oaalaw.cm, Our Partners

The African Chamber of Trade & Commerce (ACC) is an African based initiative, headquartered in Yaounde-Cameroon, created to facilitate trade between Africa and her partners around the globe. ACC provides a platform to visionaries, institutions and investors within the continent and the Diaspora to better utilize and exploit Africa’s unqualified socio-cultural and economic potential for Africa's development and emergence. Our goal is to meet the challenges exposed to the world by globalization. Today doing business requires bringing together people from different backgrounds for a more diversified and dynamic business culture and environment. « ACC is an innovative private sector business vector, working through a Federated Network of activities, wherein ; stakeholders, businesses and institutions trading and investing across Africa are able to make conscious business decisions based on where, how and when to undertake competitive business opportunities around the world, relying on unequivocal information » ACC works with Commissions : Intellectual Property (IPR & Business partnerships, Diapora and ICT, Finance and Investment, International Trade, Commerce, Energy and Environment, Maritime Security and Trade, Communication, Culture and Ecotourisme, Education and Welfare, Agriculture, The ACC platform seeks to consolidate existing and new businesses through reliable and federated networks to promote inclusive investment opportunities and competiveness for startups and SME’s to guarantee that, the UN Sustainable Development Goals (SDGs) for Africa are met, considering that Structural adjustment economic and financial reforms remain a threat to the region’s economic emergence. ACC works with financial institutions to enhance efforts to seek funding and build sustainable platforms for financial integration and autonomy of SME businesses, faced with credit and funding difficulties. ACC proposes an experience sharing encounter with major local players and financial international financial institutions other partners capable of funding businesses. The purpose is to encourage starts-ups and others on how to be resistant and resilient in their business endeavors, irrespective of inherent difficulties. ACC believes good governance practices oblige and lead to good results in all fields, in the spirit of strengthening public-private partnerships and facilitating the success of North-South entrepreneurship for increase productivity and competiveness for SME’s. ACC’s partners and members: Chambers of Commerce, Businesses, Law firms, NGO’s, Institutions… Adress : The African Chamber of Trade & Commerce (ACC) P.O Box 35040, Bastos Yaounde-Cameroon. Tel: +237 695 228 348 / +237 677 581 551 / + 242 640 074. International contact : Washington DC Telephone. : +202 460 074 Website : www.africanchamber-abo.org, Email : africanchambernetwork@gmail.com, info@africanchamber-abo.org facebook. : africanchambernetwork

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ARIPO

African Regional Intellectual Property Organization

ARIPO

explains WHY?

Susan Mwiti, Documentations and Communications Officer at ARIPO www.aripo.org

‘Susan Mwiti, Documentations and Communications Officer’ at ARIPO explains why you should make your IP registration with them.

Why you should make your Trademark application with ARIPO

Throughout the world, an efficient and equitable Intellectual Property system is a powerful tool for economic development and social and cultural wellbeing as it rewards creativity and human endeavour by providing an environment for creativity and invention to flourish, to the benefit of national economies and individuals alike. At the African Regional Intellectual Property Organization (ARIPO), awareness creation on IP in Africa has been one of its key activities in line with its Value and Growth Transformation Strategic Plan running from 2016 to 2020. According to the ARIPO Director General, Mr.

Fernando dos Santos, ARIPO’s current vision is to be pan-African and the leading IP hub in Africa. He says, Having grown from humble beginnings from its birth in 1976, ARIPO has matured into an IP giant today. “ARIPO adopted the current vision to foster creativity and innovation for economic growth and development on the continent.”Membership to ARIPO is open to all African states who are members of the African Union or the United Nations Economic Commission for Africa (ECA). Currently, ARIPO has 19 Member States being; Botswana, The Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Namibia, Rwanda, São Tomé and Príncipe, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe.

The firm was founded by Joseph Antoine Onambele, The founded Joseph 30 firm yearswas ago, he wasby later joinedAntoine by MaryOnambele, Concilia 30Anchang. years ago, was laterand joined by Mary Concilia Ashe Founding managing Anchang. Founding and managing partnersAs they have through their dedication and partners they have through their dedication and hard work built an international bilingual and bi-jurial hard work built an international bilingual and bi-jurial Full service law firm, based in Yaoundé Cameroon. Full service law firm, based in Yaoundé Cameroon. OAA law is proud to be the first Bilingual Law firm in the OAA law ispracticing proud toinbeboth, the Civil first Bilingual Law firm in thejuCountry Law and Common Law Country practicing in both, Civil Law and Common Law law risdictions. A full-service corporate law firm, OAA juA full-service corporate law firm, OAA law risdictions. serves clients in a diverse range of industries, and has serves clients a diverse range coverage of industries, has over the yearsin grown to include of theand CEMAC over the and years grown Due to include of the CEMAC region globally. to her coverage broad based corporate caregion and globally. Due to her broad based corporate capabilities, she represents and assists clients in matters that pabilities, she represents and assists in matters that include intellectual property filings clients and litigation, mergers include intellectual property filings and litigation, mergers and acquisitions, telecommunication, mining, real estate, and acquisitions, telecommunication, mining, real ventures estate, corporate Law, project finance and joint finance, corporate OAA Law, Law project finance and joint ventures finance, in infrastructure. delivers high quality and highly inefficient infrastructure. OAA Law delivers high quality and highly services to its clients. OAA Law is a pioneer Law efficient services to its clients. OAA Law is a pioneer Law firm in Intellectual Property, Corporate Law and Mining Law firm in Intellectual in the Region Property, Corporate Law and Mining Law inThe the firms Region practice over the years has grown to include coThe firms practice over the yearsand hasglobally. grown toSenior include coverage of the CEMAC region partner verage ofAntoine the CEMAC regionisand Seniorofpartner the CaJoseph Onambele the globally. past president of the CaJoseph Antoine Onambele is the past president meroon National committee of The International Chamber meroon National committee of The International Chamber of Commerce.(ICC) ofMary Commerce.(ICC) Concilia Anchang is the pioneer IP lawyer in the Mary Concilia Anchang thepioneer pioneer IP lawyer in court the OAPI region. She is alsoisthe t African female OAPI region. SheInternational is also the pioneer female member of the Court oft African Arbitration, ICCcourt Paris. member of the International Court of Arbitration, ICC Paris. She represented her country, Cameroon in this capacity She represented country, Cameroon in thischair capacity from 2006-2010.her She is the current founding of the from 2006-2010. is the &current founding chair of the (ACC) African ChamberShe of Trade Commerce. (ACC) attorneys. African Chamber Trade & Commerce. OAA Law offers of experienced and well travelled OAA Law offers inexperienced andhas wellbeen travelled attorneys. Their maturity legal services achieved through Their maturity in legal services has been achieved through innovation, resilience, research and hard work for clients innovation, across theresilience, globe. research and hard work for clients across the globe. Address: Opposite United States & Saudie Arabia Embassies Rosa Address: Opposite United States & Saudie Arabia Embassies Rosa Park Avenue-Golf Ntougnou Park Avenue-Golf Ntougnou P.O Box 662 Yaounde-Cameroon. P.O Box 662222 Yaounde-Cameroon. Tel: +237 209 776 / +237 677 581 551 Tel: +237 222 209 776 / +237 677 581 551 Email: oaalawpartners2@gmail.com / info@oaalaw.cm Email: oaalawpartners2@gmail.com / info@oaalaw.cm website. : www.oaalaw.cm, website. : www.oaalaw.cm, Our Partners Our Partners

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The African Chamber of Trade & Commerce (ACC) is an African The African Chamber of Trade & inCommerce (ACC) is ancreated Africanto based initiative, headquartered Yaounde-Cameroon, based initiative, Yaounde-Cameroon, to facilitate trade headquartered between Africainand her partners aroundcreated the globe. facilitate trade between Africa and her partners around the globe. ACC provides a platform to visionaries, institutions and investors ACC provides a platform visionaries, and and investors within the continent andtothe Diaspora institutions to better utilize exploit within the continent and the Diaspora to better utilize and exploitfor Africa’s unqualified socio-cultural and economic potential for Africa’s andOur economic Africa'sunqualified developmentsocio-cultural and emergence. goal is topotential meet the chalAfrica's development and emergence. Our goal is to meet the challenges exposed to the world by globalization. Today doing business lenges exposed to the world by globalization. Todaybackgrounds doing business requires bringing together people from different for a requires bringing together peoplebusiness from different for a more diversified and dynamic culturebackgrounds and environment. more diversified and dynamic business culture and environment. « ACC is an innovative private sector business vector, working « through ACC is an innovativeNetwork privateofsector business vector, working a Federated activities, wherein ; stakeholders, through a Federated Network of activities, wherein ; stakeholders, businesses and institutions trading and investing across Africa are businesses andconscious institutionsbusiness trading and investing across Africa are able to make decisions based on where, how able to make conscious business decisions based on where, how and when to undertake competitive business opportunities around and to relying undertake competitive business opportunities around thewhen world, on unequivocal information » theACC world, relying on unequivocal information » works with Commissions : Intellectual Property (IPR & BusiACC works with Commissions : Intellectual Property (IPR & Busi-Inness partnerships, Diapora and ICT, Finance and Investment, ness partnerships, Diapora and ICT, Finance and Investment, International Trade, Commerce, Energy and Environment, Maritime Environment, Maritime ternational Commerce, Energy andCulture Security Trade, and Trade, Communication, and Ecotourisme, Security and Trade, Communication, Culture and Ecotourisme, Education and Welfare, Agriculture, Education Welfare, Agriculture, The ACCand platform seeks to consolidate existing and new busiThe ACC through platformreliable seeks and to consolidate existing to and new businesses federated networks promote inclunesses through reliable and federated networks to promote inclusive investment opportunities and competiveness for startups and sive investment opportunities and competiveness for startups and SME’s to guarantee that, the UN Sustainable Development Goals SME’s to guarantee that,met, the considering UN Sustainable Goals that Development Structural adjustment (SDGs) for Africa are considering that Structural (SDGs) for Africa are met,reforms economic and financial remain a threat to theadjustment region’s economic and financial reforms remain a threat to the region’s economic emergence. economic emergence. ACC works with financial institutions to enhance efforts to seek ACC works financial institutions to for enhance efforts to seek funding andwith build sustainable platforms financial integration and funding and build sustainable platforms for financial integration and autonomy of SME businesses, faced with credit and funding diffiautonomy culties. of SME businesses, faced with credit and funding difficulties. ACC proposes an experience sharing encounter with major local ACC proposes an experience sharing encounter with major international financial institutions otherlocal partplayers and financial financial international financial institutions other partplayers and ners capable of funding businesses. The purpose is to encourage ners capableand of funding purpose to encourage starts-ups others businesses. on how to beThe resistant andis resilient in their starts-ups and others on how to be resistant and resilient in their business endeavors, irrespective of inherent difficulties. ACC bebusiness endeavors, irrespective of inherent difficulties. ACC believes good governance practices oblige and lead to good results lieves practices oblige public-private and lead to good results in allgood fields,governance in the spirit of strengthening partnerships in and all fields, in the the spiritsuccess of strengthening public-private partnerships of North-South entrepreneurship for facilitating the success of North-South entrepreneurship for and facilitating increase productivity and competiveness for SME’s. increase productivity and competiveness for SME’s. ACC’s partners and members: Chambers of Commerce, ACC’s partnersLaw andfirms, members: Chambers of Commerce, Businesses, NGO’s, Institutions… Businesses, Law firms, NGO’s, Institutions… Adress : The African Chamber of Trade & Commerce (ACC) Adress : The African Chamber of Trade & Commerce (ACC) P.O Box 35040, Bastos Yaounde-Cameroon. P.OTel: Box 35040, +237 695 Bastos 228 348Yaounde-Cameroon. / +237 677 581 551 / + 242 640 074. Tel: +237 695 228 348 / +237 677 581 DC 551Telephone. / + 242 640: 074. +202 460 074 International contact : Washington International contact : Washington DC Telephone. : +202 460 074 Website : www.africanchamber-abo.org, Website www.africanchamber-abo.org, Email : africanchambernetwork@gmail.com, info@africanchamber-abo.org Email : africanchambernetwork@gmail.com, info@africanchamber-abo.org facebook. : africanchambernetwork facebook. : africanchambernetwork

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Creating incentives to solve problems innovatively

ARIPO has been key to protecting Africa’s intellectual property rights through patents, trademarks, utility models, industrial designs, traditional knowledge and expressions of folklore and is endeavoring to protect copyrights, plant varieties and geographical indications in the same manner as well as contributing towards the shaping of the African and global intellectual property landscape. In fact, when you apply for registration/grant of a trademark, patent, utility model or industrial design with ARIPO you have a choice of all or some contracting states to a protocol in a single registration.

Fingers on the pulse of global IP

According to the ARIPO Director General, Fernando dos Santos, “The IP system creates incentives for people who come out with innovative ideas to solve problems facing society.” It does so by protecting their rights so that they are not robbed of the products of their minds. Thus, efficient IP systems have become even more critical today, as “the world has shifted to the knowledge economy of which IP is the main driving force,” says Mr. Dos Santos.

Filing trademarks with ARIPO The Banjul Protocol, adopted in 1993, entrusts ARIPO with the function of registration of marks and administration of such registered marks on behalf of the contracting states in accordance with the provisions of this protocol. Ten states are currently party to the protocol and these are Botswana, Lesotho, Liberia, Malawi, Namibia, São Tomé and Príncipe, Swaziland, Tanzania, Uganda and Zimbabwe. In addition, strong intentions by two member states to be party to the system have been shown recently.

The ARIPO route for the registration of marks is very easy!

It has become even smoother with the use of new technology especially the availability of the ARIPO e-services of online filing. The online services allow applicants, attorneys, agents and other users to conduct their ARIPO business electronically in a secure state of the art environment. This facility allows for online filing of IP files, online payment of fees, sending and receiving notifications and general tracking of filed applications. Currently on average, 60% of the applications are now being filed online. By filing online, one also gets a 20% discount on the application fee. It is also easier to process the applications internally. Since December 2015 ARIPO has made its published Trademarks information available on the TMView platform and in April 2018, ARIPO was integrated to the TMClass that offers users the opportunity to search and translate goods and services to and from many languages available.

ARIPO has developed a pilot database with more than 350,000 Trademarks from ARIPO and its member states which include; Botswana, Gambia, Ghana, Kenya, Malawi, Mozambique, Namibia, Rwanda, Tanzania, Uganda, Zambia and Zimbabwe. The objective is to create a centralized database for its published IP titles and those of its Member States.

The office also conducts several search services for the public (in most instances for free to citizens of the member states). Some of these are; state-of-the-art searches, novelty searches, validity searches, bibliographic searches, infringement (Freedom to Operate) searches, patent family searches, copy searches, as well as trademark searches.

Enforceability of ARIPO Registrations

Supporting training & helping to build the future

As to the enforceability of ARIPO registrations, it is important to note that, many of the Contracting States are adopting new legislations on Trademarks and, importantly, they are formally domesticating the Banjul Protocol on marks in the framework of ARIPO. The most recent is Malawi that dedicated a schedule in its new Act on the procedures applicable to ARIPO registrations. There are also other contracting States that do not even need to formally domesticate the Banjul Protocol or any other international treaty they ratify or accede to simply because of their legal tradition that recognizes any international treaty duly ratified as part of the legal arsenal. This is the case for Namibia and São Tomé and Príncipe. There are also countries that, though not yet contracting parties to the Banjul Protocol, have already enacted provisions in their domestic laws that pave way to the immediate implementation of the Banjul Protocol if these countries became party. This is the case of Kenya and Mozambique.

Additional services

ARIPO also offers other services to promote the use of the IP system by its Member States and Africa as a whole. ARIPO carries out substantive examination of patent applications, grants patents, registers trademarks, industrial designs and utility models and administers the same on behalf of the Member States.

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As part of its mandate, ARIPO also trains staff of industrial property offices from its member states in proper administration and processing of intellectual property under the ARIPO treaties. The Organization also assists member states nationals and institutions to acquire and utilise foreign appropriate technologies and encouraging indigenous inventors to utilise available patent information and technologies to start their small business enterprises. ARIPO has also been creating a critical mass of IP experts on the continent, in partnership with the World Intellectual Property Organisation (WIPO) and the Africa University in Mutare, Zimbabwe. Together with these partners, ARIPO has supported a Masters in Intellectual Property (MIP) programme at the Africa University, which has so far produced 252 graduates drawn from over 25 African countries. In furtherance of the programme, ARIPO, in partnership with the Kwame Nkrumah University of Science and Technology (KNUST) in Kumasi, Ghana, and the Intellectual Property Office of Ghana, enrolled the first intake of MIP students at the KNUST in February 2018. Another programme targeting East Africa is in the pipeline, to be hosted by the University of Dar es Salaam in Tanzania.

• Interviews & featured articles • Independent columnists • Q&A's • Law firm profiles • Movers and shakers • 15,000 database of IP Professionals + much more For more information contact us at: info@gipmatrix.com

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