Apparently a glass and a half of whole milk in every half pound of chocolate is no longer politically correct. I mean who measured milk in glasses? From now on, Cadbury’s will advertise their Dairy Milk bar as containing the equivalent of 426ml of fresh liquid milk in every 227g of milk chocolate. Much clearer isn’t it? Catchy too.
1 Comment | 
trademarks | 
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Posted by Dr Michael Factor
In the February 2010 issue of this newsletter, an article entitled, “Israel to be Downgraded to US Special 301 Watch List” discussed the fact that Israel was to be downgraded from the US Special 301 Report blacklist of countries that fail to protect copyright adequately, and would appear only on the watch list. This change was the result of an agreement reached during talks in Washington, where the Israel delegation was headed by the Israel Ministry of Industry, Trade Director General Sharon Kedmi.
The proposed amendments to the Israel Patent Law have now published for public comment. Essentially, if the amendment passes into Law, it will be possible to apply for an extension of up to five years for major pharmaceutical patents prior to the patent issuing in Israel. It will, however, be required for patent extensions to have issued in two countries: the US and a main European country (Italy, UK, Germany, Spain or France).
The Proposed Amendment is Number 803-10-2010-000073.
Comments
This proposal is an attempt to amend an amendment of an amendment. In 2006, Israel re-amended a poorly written amendment to the Patent Law from 2004 providing patent term extensions that allow local generic manufacturers to manufacture and export as soon as the main patent has expired in at least one of the other countries having patent term extensions.
The list of countries on the basis of which one could request a patent term extension in Israel if one received a patent there, is largely scaled back. The original list included Austria, Holland, Ireland, Denmark, Belgium, Greece, Finland, Sweden and Portugal. It seems that the patent has to issue in the US and a European country, instead of one or the other. The proposed amendment may undergo further revisions before passing into law.
The present amendment appears designed to require that at least two countries of those providing patent term extensions have given regulatory approval for the drug before Israel can step in. This discriminates against Israeli manufacturers and does not appear to have any basis in anything other than protectionism of the US pharmaceutical industry.
What is very clear is that Israel is not being held to task for not fulfilling obligations defined in a multinational patent treaty managed by WIPO. Nor is the problem that Israel industries flaunt Israel Patent Law.
Rather, it seems that Israel generic manufacturers such as Teva, Unipharm, Perrigo and Rafa, are too effective at manufacturing generic pharmaceuticals and supplying global markets. This development strong arm tactics on the part of the US.
The section of the Law covering patent term extensions is highly contentious, due in large part to the lobbying powers of the pharmaceutical industry.
The original amendment to the Israel Patent Law was poorly written and then Deputy Commissioner of Patents Israel Axelrod interpreted the amendment to allow the applicant for the patent term extension to choose which country to base their application for extension on. I believe that the preamble to the proposed amendment makes his interpretation untenable.
The second amendment was designed to clarify the Knesset’s intent. Axelrod was transferred to the Beersheva district court instead of becoming the Commissioner of Patents. This position that was empty for quite a while until the incumbent, Dr. Meir Noam, assumed the reins.
The current amendment appears to be designed to require that at least two countries of those providing patent term extensions, allow manufacturing of the drug before Israel can step in. This discriminates against Israeli manufacturers and does not appear to have any basis other than protectionism of the US pharmaceutical industry.
Arguably there is nothing wrong with the US using their political and financial muscle to prevent other countries from encroaching on their markets. The trouble is that the Special 301 Report does not merely indicate which countries have manufacturing capability that challenges US preeminence. Rather, the report takes the moral high ground and lists countries as not fulfilling their international duties.
The GATT round of the WTO was designed to remove artificial trade barriers. Patent term extensions per se may be considered artificial trade barriers since they are technology specific. Nevertheless the type of amendment under consideration due to US pressure seems to be an artificial trade barrier. It remains to be seen whether the Knesset will have the courage to stand up against US pressure, or will give in to US industrial interests.
1 Comment | Intellectual Property, Israel Patent, pharmaceuticals, pharmaceuticals and Biotechnology | Permalink
Posted by Dr Michael Factor
A jury has ruled that Camtek’s semiconductor wafer inspection system infringes August’s patent rights. See http://www.patentlyo.com/patent/2010/09/stays-pending-appeal.html?
The case: Technology Corp. v. Camtek (Fed. Cir. 2010) (non-precedential order).
Along with its appeal on the merits, Camtek filed an emergency motion to stay the injunctive relief until the appeal is resolved. Writing for the panel, Judge Lourie denied the stay — writing only that Camtek had not “met its burden.”
Camtek is an Israel firm that is involved with contentous litigation with a second Israel firm, Orbotech, and also with Rudolf , a German inspection system manufacturer. See http://blog.ipfactor.co.il/2010/06/03/camtek-sued-by-rudolf-again/
Leave a Comment » | infringement, Intellectual Property, Patents | Permalink
Posted by Dr Michael Factor
BackWeb Technologies Ltd., an Israel based Internet software company, has announced filing lawsuits in the United States District Court in San Francisco, California against IBM and HP. Backweb alleges patent infringement and is seeking damages, an injunction and a declaration by the Court that the IBM and HP software update technologies infringe BackWeb’s patents.
The company alleges that IBM’s Tivoli Provisioning Manager for Software product and IBM’s recently acquired BigFix products infringe four U.S. patents owned by BackWeb covering methods for transmitting information between a remote network and a local computer and distributed client-based data caching systems.
BackWeb also alleges that HP’s Client Automation product infringes three U.S. patents owned by BackWeb covering methods for transmitting information between a remote network and a local computer.
Back in June, Backweb settled out of court with Microsoft.
See Backweb Announces Resolution of Litigation with Microsoft
Leave a Comment » | Intellectual Property, Internet, Patents | Permalink
Posted by Dr Michael Factor
Teva Pharmaceuticals has filed a complaint against Mylan, a generic drug maker this week, alleging infringement of four patents covering Copaxone, Teva’s ethical drug for treating multiple sclerosis. Teva filed suit in the U.S. District Court for the Southern District of New York.
This is not the first time that Teva has sued Mylan over Copaxone. Teva previously filed a separate lawsuit against Mylan in October 2009 for infringement of multiple patents, including all seven “Orange Book” patents, covering the chemical composition of Copaxone, pharmaceutical compositions containing it, methods of using it and processes for making it. Those patents expire in May 2014 and September 2015. No trial date is scheduled.
We note that earlier this month, Teva managed to block generic Copaxone manufactured by Sandoz and Momenta Pharmaceuticals by obtaining a district court injunction.
Leave a Comment » | drugs, infringement, Intellectual Property, Israel Patent, pharmaceuticals, pharmaceuticals and Biotechnology, Teva | Permalink
Posted by Dr Michael Factor
The German State of Bavaria won a copyright battle last week when Prague’s municipal court issued a verdict against the publisher, KMa, for copyright infringement, ordering them to withdraw and destroy copies of Hitler’s ‘Mein Kampf.
The notorious book, published in 1925, expresses Hitler’s desire to exterminate Jews and occupy territory in Eastern Europe. Bavaria holds the copyright to the book.
COMMENT
Copyright in the UK tradition, from the Statute of Anne onwards, was about allowing publishers to have a monopoly on their work for a limited period to make it worth their while publishing. The Continental tradition was more about rewarding the author with the fruits of his labour.
I sympathise with attempts to prevent further publication and dissemination of this hate work, but I am not sure that copyright is the correct tool to use. I am no fan of lex specialis, but if the issue is to prevent publication of a rabid antisemitic book that can be mis-used by right-wing extremists, then maybe a special law is required. At least in such circumstances it would be clear that the issue is censorship and not copyright.
My copy of Mein Kampf was published in English in the thirties in Britain, in serial form as a series of weekly instalments, royalties to the British Red Cross. Like a number of booklets and pamphlets I’ve collected over the years, I find the views expressed abhorrent and the writing style awful. It is, however, an important document that should generally be available to historians and scholars.
It is not just copyright that is being (mis)used to prevent historical analysis. Apparently, Valentin Ceausescu the son of former Romanian communist leader Nicolae Ceausescu is suing the Odeon theatre in Bucharest for performing a play about his parents called “The Last Hours of Ceausescu”, claiming infringement of the trade mark “Ceausescu” which apparently he owns. See Dispute over “Ceausescu” trade mark on the IPKAT.
It is reported that Mr Ceausescu is suing for nominal damages of 0.25 Euro only as this was a matter of “principle” for him, that no one should be allowed to use the name Ceausescu without consent.
I am aware that my comments re Bavaria stopping Mein Kampf publishing may be offensive to some, as the issue is emotionally loaded, particularly for the high proportion of my readers that are Jewish. Should the son of a deceased political figure have the rights to choose what can be said about his father because a trademark was registered? Surely his rights should be limited to being able to sue for libel if facts are misinterpreted?
Please note: I am not suggesting moral equivalence between Hitler and Ceausescu. Nor am I suggesting legal equivalence between copyright and trademarks. I am fully aware of the differences. Those, nevertheless, wishing to take me to task, are invited to comment.
2 Comments | Copyright | Permalink
Posted by Dr Michael Factor
Lego, the Danish toy maker that is Europe’s biggest toy manufacturer have failed to overturn the OHIM decision to revoke trademark rights for its plastic building blocks.
After losing in the OHIM and again in 2008 in the general court, Lego appealed to the European Union Court of Justice (ECJ).
The ECJ has now ruled that “the Lego brick is not registerable as a Community trade mark. It is a sign consisting exclusively of the shape of goods necessary to obtain a technical result”.
The court went on to rule that “Undertakings may not use trade mark law in order to perpetuate, indefinitely, exclusive rights relating to technical solutions”.
Lego had argued that the bricks were eligible for trademark rights as the studs on the top of the bricks made them highly distinctive. Megablocks and various Chinese companies make similar blocks, that are compatible with Lego bricks.
We note that the Israel Supreme Court came to a similar ruling in Interlego, where the toy maker tried to get copyright protection for the brick. See 513/89 Interlego S/N vs. exin-lines bros (1994) 48(4) 133
It seems reasonable that such objects should be protected for up to 20 years as patents, or for 15 -28 years as designs, but not indefinately as trademarks, or for 50-90 years as copyright.
Leave a Comment » | Copyright, design, trademarks | Permalink
Posted by Dr Michael Factor
Shmuel Rachmani, the sports photographer who captured Tal Brody, captain of Maccabi Tel Aviv, holding the European Basketball cup has been awarded NIS 55,000 damages + costs by the Tel Aviv Magistrate’s Court, against the Israel Basketball Superleague who enlarged the image and used it in an exhibition celebrating 60 years of Israel Basketball, and reproduced the photograph in the exhibition catalogue.
The award is for both copyright infringement and for trampling Rachmani’s moral rights by not acknowledging him as the photographer.
The picture, found here: http://en.wikipedia.org/wiki/Tal_Brody, is an iconic image of one of Israel’s finest sporting moments, when Tal Brody famously said, that Israel is now on the map. In the match, held in Belgrade against the Soviet Union, there were various undercurrents since the Soviet Union had broken off diplomatic relations with Israel and were supporting the Arabs militarily. Furthermore, Russian Jews, refuseniks, were not allowed to emigrate, so the match was seen as something of a David and Goliath battle of epic proportions.
Leave a Comment » | Copyright, Israel Copyright, Israel Court Ruling | Permalink
Posted by Dr Michael Factor
Varicom Communications LTD, an Israel company, http://www.varicom.co.il/ filed a patent application (number IL 135684) in Israel. The claimed invention was quite nifty. It allowed mobile phone owners to know who had tried calling them and when. Back in April 2000 when the application was filed, the idea was less obvious than it seems today.
Over the course of the year, the idea was developed somewhat, and a PCT application claiming priority from the Israel application but with added material, was duly filed.
A national phase entry into the US, number USSN 08/569,209, eventually issued as US 6,754,316, and the applicant requested allowance on the basis of the corresponding equivalent US Patent, conformed the claims and specification of the Israel application to that of US 6,754,316, and the patent was granted and published for opposition purposes.
Herein lies the problem. The additional material which is necessary to support the allowed claims is only entitled to the date when it was added, sometime in 2005, way after the PCT application published. Thus the PCT application became prior art to the invention and torpedoed the patent.
Comverse LTD http://www.comverse.com/, an International company with a large Israel presence, filed an opposition also claimed that prior art mentioned in the International Search Report of the PCT was not placed on record by the applicant during the Israel examination, contrary to Section 18 of the Law (duty of disclosure). They also claimed that a product of theirs – Trilogue INfinity Platform anticipated the application in its entirety, using affidavits to support their claims that the product was sold to clients before the priority date. The applicant did not respond to the opposition procedure so the historic truth of these allegations was not examined on their merits. This leaves the validity of Varicom’s corresponding US patent somewhat unclear.
The morals of the story:
Leave a Comment » | infringement, Intellectual Property, Internet, Israel, Israel IP, Israel Patent, Israel Patent Office, Israel Patent Office Rulings, Patents, Uncategorized | Permalink
Posted by Dr Michael Factor
David Ascalon, an Israeli-born sculptor living in New Jersey whose grandparents were murdered in the Holocaust, was commissioned to create a Holocaust memorial in 1993 by the Jewish Federation of Greater Harrisburg.
His design consists of a stainless-steel Star of David base in which a series of stainless-steel poles are mounted. These are bound up by a dark, rusty-looking metal “spiral serpent” that resembles barbed wire.
The 15-foot-tall sculpture was placed in a park, and Ascalon was paid $35,000 for the work.
Apparently, the stainless steel core represents the Jewish people because stainless steel has an eternal look. The decayed serpentine rusting shape on the other hand, symbolizes the Nazis.
However, Within 10 years, the Holocaust sculpture needed repairs, because the barbed-wire serpent had become overly rusted. Mr. Ascalon volunteered to do the restoration, asking only to be reimbursed for the costs.
In 2006, the Parks and Recreation Department of Harrisburg chose a restorer who replaced the original barbed-wire motif with a shining stainless steel replica and scratched out Mr. Ascalon’s name from the memorial’s base, replacing it with his own. It now says “Restored by David Grindle 2006” and lists the names of the “Restoration Advisors.”
What’s more, a lawyer for the Jewish Federation demanded that Mr. Ascalon stop claiming to be the memorial’s artist.
In July, Mr. Ascalon filed a lawsuit in U.S. District Court against the parks department, the Jewish Federation and the restorer for violating his moral rights.
According to the Statement of Claim
“The modification of the sculpture has changed it so that now the same shiny stainless steel that represents the enduring Jewish people is also used to depict the Nazi regime and atrocities of the Holocaust. This alteration is abhorrent, and runs completely contrary to the core vision of the Memorial, which was based on the notion of creating a striking and stark visual contrast between the Jewish people and their Nazi oppressors. The sculpture as modified now creates a visual equivalency between good and evil, which is a mutilation and bastardization of the artwork and its purpose.”
The case is an interesting one. The choice of materials, including the rusting barbed wire, was done intentionally. Changing these arguably compromises the artists moral rights. On the other hand, shouldn’t the purchaser of a piece of art be able to make improvements, like stopping it disintegrating away?
The restorer may have the moral right to be accredited, but surely the original artist has rights as well?
Once the sculpture is changed and the name of the original artist is no longer mentioned, arguably his moral rights are no longer compromised.
According to Visual Artists Rights Act 1990 (VARA), incorporated into the Copyright Act as § 106A(a)(2) of the Visual Arts , the author of a work of visual art “shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation.”
If the adapting of the original art is done concurrently with removing the name of the artist, arguably his moral rights are not compromised.
I think the original artist deserves credit for his creation, but the purchaser should have the right to make such alterations as are required for practical reasons, and perhaps for aesthetic ones as well, but these should be clearly documented on site. Thus attributing the restorer with details of his restoration is legitimate but this should flag the fact that the integrity of the original creation was compromised and that the work on display has been modified.
Such a solution may not be acceptable to all parties. The sculpture is large and imposing. Any documentation on site will, of necessity, be less so.
I suppose if those that daub graffiti on holocaust memorials, such as that in Hyde Park London, would have the integrity to identify themselves for prosecution purposes, that would be a good thing as well.
It is a shame that such cases are not settled amicably.
1 Comment | Copyright, design, US | Permalink
Posted by Dr Michael Factor
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