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The state of play (Market intelligence)
No one ever said that managing an IP portfolio was easy. But just how sophisticated an operation it has now become is not always appreciated by those who are not intimately involved in the job.
A brief perspective on IP valuation (Market intelligence)
Tremendous headway has been made in IP valuation in the past 10 years. This is due partly to changes in the accounting regulations, but more importantly to the recognition of the importance of intellectual property to individual businesses and the overall economy.
NYSE Euronext’s IP ambitions (Market intelligence)
Across the NYSE Euronext community, business leaders and decision makers are turning their attention to the ever-increasing value of intellectual property. From chief executive officers (CEOs) of listed companies to board directors, buy-side or sell-side participants and exchange operators such as our own organisation, capturing value from innovation is crucial to keeping and growing market share in a highly competitive landscape. Intangible assets, whether patents, copyrights, trademarks even corporate reputations and brands are core business assets with broad strategic value. Each can contribute directly to an organisation’s competitiveness and bottom line.
Creatively found elsewhere: strategies to succeed at open innovation (Market intelligence)
At the beginning of the last century, companies began to create research and development (R&D) groups to advance the commercial application of science. This enabled them to have complete control over the new product development process, rather than having to wait for the scientific community or other companies to start producing the components required in their products. By doing everything themselves, companies had the advantage of owning the rights to inventions that they patented and had less need to acquire rights from others.
EuropeLiability for internet host providers in the European Union: time for a reform? (Market intelligence)
While drafting the EU E-commerce Directive (2000/31/EC), the European Commission considered that one of the key elements for developing electronic commerce in Europe was the issue of service provider liability. For this reason the commission considered that the liability regime should be harmonised throughout the European Union. Therefore, Article 14(1) of this directive created a ‘safe haven’ regime under which providers of hosting, caching and mere conduit services cannot be held liable under certain conditions. Further, the directive clearly states that the providers of these services cannot be subject to any general monitoring obligation.
EuropeThe importance of Community designs for EU IP rights (Market intelligence)
Consumer goods are often distinguishable from other products as a result of their appearance or the appearance of their packaging, including shape, pattern, colour or any combination of these. This makes it possible for consumers to make a well-founded choice without having to compare the actual goods themselves.
EuropeIP rights enforcement through border measures (Market intelligence)
The customs authorities play an essential role in protecting the EU market from counterfeit goods. This chapter first considers the applicable EU rights protection framework, and then looks at how IP rights can be protected across the European Union through border measures.
EuropeWill the European Patent Court ever become reality? (Market intelligence)
Europe has a long and chequered history when it comes to patent law. Efforts to establish a single EU patent and a European Patent Court system have been ongoing for years. However, more recently, discussions have gained momentum and have even led to the adoption of a draft agreement on a European Patent Court by the Council of the European Union (March 2009), and some rather promising conclusions adopted by the council in December 2009. These are the results of years of intensive discussions among the (now 27) EU member states. However, a recent opinion of the advocates general takes the position that this system does not accord with the EU Treaty. This has seriously jeopardised the chances of creating a single EU patent and a uniform European Patent Court, since it is likely that the Court of Justice of the European Union (ECJ) will follow it.
EuropeEnforcing legal claims over manufacturing processes (Market intelligence)
A patent allows a patentee to prohibit others from commercially exploiting its invention, as defined by the patent claims. When a patentee wishes to exercise this right, it must first establish that the alleged infringer is in fact commercially exploiting a product or process that falls within the scope of protection. This may sound straightforward, but what if the alleged infringer is using an apparatus or a process in secret? In that case, the patentee can prove that a process is being used only by (illegally) acquiring access to the alleged infringer’s premises or by violating its trade secrets. Given this, what options are available for patentees to safeguard their rights?
EuropeDouble patenting at the European Double patenting at the European (Market intelligence)
Until recently, double patenting was considered so irrelevant and rare that neither the 1973 nor the 2000 version of the European Patent Convention (EPC) included any explicit provision on the matter. While double patenting has increased in relevance, case law on the subject from the European Patent Office (EPO) remains contradictory, with decisions diverging on fundamental principles. However, growing interest in the subject may soon lead to a referral to the EPO’s Enlarged Board of Appeal (EBA). This chapter offers some preliminary considerations on aspects that might require clarification by the EBA.
InternationalPatent pools and standards (Market intelligence)
Cooperation between patent holders with regard to the joint exploitation of their rights creates several problems and gives rise to a number of issues which are of great practical importance not only for the patentees, but even more so for third parties that wish to benefit from such cooperation, and for the public in general.
InternationalHow best to utilise the Madrid Protocol (Market intelligence)
International enterprises are often confronted with the question of how to obtain international protection for trademarks while keeping work and costs reasonable. In general, applying for single national trademarks in various countries is not the best way to proceed, as the time and effort spent over administration and the costs involved are disproportionately high. In most cases, an international registration is by far the most attractive option. This chapter discusses the system for international registrations, as well as the advantages and limitations of this system.
United StatesBusiness methods patents survive for now (Market intelligence)
On June 28 2010 the Supreme Court issued its longawaited Bilski v Kappos opinion on the patentability of business methods. In a broad, rambling opinion, the court seemed able to agree only that the Bilski claims at issue for hedging by commodities buyers and sellers against the risk of price changes in the energy market were unpatentable subject matter. It did so narrowly by finding that the claims were attempts to patent abstract ideas and not by using the ‘machine or transformation’ test espoused by the Federal Circuit in the same case in 2009. Notably, the court seemed in unanimous agreement that the machine or transformation test is not the sole test for patent eligibility under Section 101; in fact, the majority expressly stated that a process need not be tied to a machine or transformation. Along the way, the court permitted business methods in general to survive but it was a close call.
United StatesIP risk management to maximise value and success in strategic deal-making (Market intelligence)
On concluding a corporate IP-related transaction, have you ever second-guessed the deal structure and whether you really optimised value and company success? Enterprise management which is focused on achieving the goals of increasing revenue and optimising profit margins, must involve a keen sense of IP impact to avoid such second-guessing. Recent statistics confirm a global increase in IP litigation due to trends such as ‘false marking’ lawsuits, directed at commercial products mislabelled with improper patent numbers. The trend towards increased IP litigation illustrates the need for a solid injection of IP savvy into corporate transactions to minimise risk and value a deal accurately.
United StatesThe new world of post-verdict damages: the evolution of the patentee’s right to exclude (Market intelligence)
In eBay v MercExchange, LLC (547 US 388 (2006)) the Supreme Court changed the landscape of available remedies awarded in patent infringement cases by overturning the longstanding rule endorsed by the Federal Circuit of routinely issuing permanent injunctions following a finding of patent infringement. Prevailing patentees must now also establish entitlement to an injunction; otherwise, no injunctions will be entered as part of a final judgment.
United StatesCounterfeiting in an online world (Market intelligence)
The statistics are staggering. Sales of counterfeit goods continue to hit new highs each year. According to various media reports, trademark holders are losing hundreds of billions of dollars due to counterfeiting. Not only do brand owners lose sales revenue, but governments lose tax revenue and employees lose jobs. Some compare the ‘war on counterfeits’ to the ‘war on drugs’, but it is not the same. Far fewer law enforcement resources are allocated to stopping the sale of counterfeit goods and far less significant penalties, if any, are slapped on those who ensure that pirated goods find their way into the stream of commerce.
United StatesWhen to choose trade secret protection over a patent (Market intelligence)
It may be surprising to some that when a company comes up with a new idea or development that it wishes to use in its business, there are likely to be a number of ways to protect it. In many instances, either patent protection or trade secret protection; can be obtained. The nature of the idea or development determines which is the better way to secure protection.
United StatesCan you see yourself in the mirror? Patent litigation costs can drain the lifeblood from a business (Market intelligence)
Patent litigation is often regarded as an excessively expensive process. The costs of discovery, experts and lengthy trial preparation accumulate very quickly. Nonetheless, a number of actions may be employed to try to prevent costs from skyrocketing. Importantly, controlling costs need not result in sacrificing any of the potential of the case in order to succeed in litigation. This chapter outlines some points that could help to develop a strategy for controlling costs in patent litigation that is in sync with the overall litigation strategy.
United StatesThe whys and hows of patent landscaping (Market intelligence)
In an increasingly competitive and global marketplace, it is more important than ever to capture the full benefits of innovation by making IP considerations a core part of a company’s strategic planning. Too often, intellectual property is a legal afterthought. The typical approach is to form a strategic plan, invest in research and development, produce and launch products and only then consider IP issues such as patentability and freedom to operate. To be effective, strategic planners and business managers must identify and secure the opportunities afforded by intellectual property much earlier in the innovation cycle, and then formulate and implement business strategies to handle potential IP risks before those risks are realised.
CaribbeanFiling trademarks in the Caribbean: what to expect (Market intelligence)
Caribbean countries are working to ensure that their IP regimes encourage innovation and are internationally competitive. However, this is a challenge, as the legislation in some countries is very outdated.
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