“Intellectual Property exclusions – who decides and how?”

After the coffee break, the conference took on a more traditional IP feel, with a session chaired by Dr Roman Cholij on “Intellectual Property exclusions – who decides and how?”

 Judge Arnold and Dr Factor

Judge Arnold and Dr Factor

The Hon. Mr Justice Richard Arnold, Judge of the High Court of England and Wales spoke on “Trade marks which are contrary to public policy or accepted principles of morality”.

After apologizing for referring to branding that some might find offensive, Judge Arnold referred to various marks that were considered offensive and others, such as Dick and Fanny for contraceptives, though crude, were considered acceptable. Of course, in a Catholic country, contraceptives might be considered as against ordre public. Old favorites, such as FCUK standing for French Connection United Kingdom were discussed. The final case mentioned was Fucking Hell, a brand of beer which was allowed since hell is German for pale and signified that this was a pale ale, and Fucking is a village in Austria where it is made.
(Interestingly, in the conference I organized back in 2011, my brother Aharon (ne Jeremy) spoke about similar Israel trademarks. One such Israel trademark to be refused was Jesus Boat. I trademark for a company offering cruises in the sea of Galilee. Is it offensive? I think not. Then again, I am not a Christian.

I have seen many of Judge Arnold’s IP rulings over the years, and recent Israeli decisions such as Waters of Eden and finding ISPs responsible for not patrolling the Internet for copyright infringement cite his rulings. His ruling re Mylan infringing Copaxone’s patent was favorably received in Israel, whereas his ruling re patent term extensions for Neurim was appealed, and Lord Robin Jacobs referred it to the European Court of Justice ECJ.  It was a pleasure meeting such an erudite member of the judiciary.

Dr Kathleen Liddell, Faculty of Law, University of Cambridge and Director, Centre for Law, Medicine and Life Sciences spoke on “Immorality and patents: the exclusion of inventions contrary to ordre public and morality”. I wondered if she was related to Alice Liddell, the daughter of Henry Liddell, Dean of Christ Church  and inspiration of the Wonderland stories, in what is referred to in Cambridge as ‘the other place’.

Professor Joshua D. Sarnoff, who was clearly a member of the Tribe, spoke on “Religious, Moral, and Philosophical Origins of the Exclusions from Patents for Science, Nature, and Abstract Ideas, How They Should Be Applied, and Why It Matters”. He covered a tremendous amount of history in a short time and gave the most convincing explanation of why the isolation of materials such as insulin or genes could be considered as inventing rather than discovery, and thus be patentable.

For lunch, I was given a tray with a Halla and a range of sealed packages of delicatessen style Kosher food. Oddly, there was both cream cheese and sliced turkey, with poultry being considered meat and thus not servable with milk products for about two millenia when the dissenting Rabbi Yossi the Galilean, buckled under.
I ate the sliced turkey with hummus and a packet of ginger biscuits. I later put the chopped herring and smoked salmon in the fridge and flew them back to Israel. I put the Halla to one side, expecting a second one for supper, two loaves, representing the double portion of manna, being required for Friday night’s meal. What struck me most about the conference, with its wide eclectic audience, was how very friendly everyone was.

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