The High Court has now granted that order. Virgin Media, Sky, Everything Everywhere, O2 and TalkTalk have been ordered by the High Court to put measures in place that prevent their respective users accessing The Pirate Bay. ISPs have criticised the move as a part-solution only to the increasing problem of copyright infringement.

Paul Gershlick, a Partner and Head of Pharmaceuticals and Life Sciences at Matthew Arnold & Baldwin LLP, comments: “These are the dramatic effects being felt in just one drug falling out of patent during the so-called patent cliff.  The patent cliff is the period between 2011 and 2016 when many of big pharma’s blockbuster drugs fall out of patent without sufficient replacements in the pipeline to make up the revenue shortfall. This period is going to re-shape the whole pharmaceutical industry. It is a time of threat to big pharma companies but also a time of opportunity for new business models.”

Meanwhile, AZ’s chief executive, David Brennan, is retiring on 1 June  as the big pharma company battles to maintain revenues after losing out to generics competitors. Brennan said that the pharma sector was “experiencing pressures none of which I’ve witnessed in my 36 years in the industry”. Like many big pharma companies, AZ is feeling the effects of the patent cliff, which is the falling out of patent of many of their blockbuster drugs between 2011 and 2016 without sufficient replacements coming through.

Lipitor is one of the first drugs to come off patent in what is coined the “patent cliff”. The patent cliff refers to the falling out of patent of a large number of blockbuster drugs between 2011 and 2016 without sufficient replacements coming through in the pipeline. 

Paul Gershlick, a Partner and Head of Pharmaceuticals and Life Sciences at Matthew Arnold & Baldwin LLP, comments: “Many experts see the patent cliff as heralding a new era in the pharmaceutical sector as big pharma companies will struggle to cope with the massive loss of revenues that they will suffer. How they and others in the sector adapt to the new position will determine who will survive, who will thrive and who will not make it.”

GSK said that the system for approving new drugs had to change.  It said: “ ”The failure to recognise and adopt innovative new medicines continues to be a systemic problem in the UK … The UK is a world leader in the research, development and manufacture of medicines, but is one of the slowest to enable patients to have access to innovative new treatments. This is a situation that must be addressed.”

In response, NICE has said that it had to recognise how new products added to the existing care already available, and if they cost a lot and did not add much in terms of improvement, that would affect whether they would be promoted. NICE had consulted with patients and doctors and concluded that the cost did not justify the relative improvements made compared to current standard care available.

In this instance, Wintersteiger, an Austrian business, accused its German competitor, Products 4U, of registering the adword “Wintersteiger” so that, when a consumer searched for “Wintersteiger” on google.de, the Product 4U website came up. Wintersteiger issued proceedings for trade mark infringement in the Austrian courts, as it had registered the word mark “Wintersteiger” in Austria. The Austrian courts had initially rejected the application on the grounds that it did not have jurisdiction as the issue related to google.de and not google.at.

Advocate General Cruz Villalón, an advisor to the ECJ, had advised that proceedings could be brought (i) in the country where the infringed trade mark was registered (in this case, Austria), or (ii) in the country corresponding to the country code in the relevant search engine’s top level domain name (in this case Germany).

However, the Advocate General’s views are not binding, and the ECJ ruled in a slightly more restrictive way in relation to (ii) above; that such claims can only be brought in that member state if the alleged infringing advertiser has an “establishment” there. It is not clear what “establishment” means, and whether it means anything different from “domiciled”, as the ECJ didn’t give an opinion on that specific point; future cases on this will hopefully clarify that issue.

The Court of Appeal has now ruled on the terms of an injunction to ensure that no further infringement takes place, and has rejected Asda’s application for permission to appeal the decision to the Supreme Court. Specsavers and Asda had agreed that the injunction should prevent Asda from using the straplines “be a real spec saver at Asda” and “spec saving at Asda” as well as the logo comprising two adjacent ellipses, which were the subject of the successful claim by Specsavers under article 9(1)(c). However, Specsavers wanted the injunction to cover similar uses of the straplines and logo as well, whereas Asda said that more general wording was not needed as it had stopped using the straplines and the logo in any case.

The Court of Appeal ruled that, because:

(i)           Specsavers and Asda were still competitors and Asda’s original campaign specifically targeted Specsavers’ customers; and

(ii)          Asda had not given any undertaking as to its future conduct;

a general form of injunction, as applied for by Specsavers, was appropriate. This was to ensure, for example, that Asda did not use straplines that were merely a slight variation from those that the Court of Appeal’s had originally ruled infringed Specsavers’ trade marks.

In addition, the Court of Appeal rejected Asda’s application for leave to appeal to the Supreme Court. Asda’s argument was that the injunction was not justified by the infringement that had taken place, but the Court of Appeal rejected that argument.

The Prime Minister has said: “The UK boasts a world-leading life sciences sector which is changing at an incredible pace.  And I’m absolutely committed to helping it widen its significant foothold in the global market”.

More information on how to apply can be found here: http://www.innovateuk.org/content/competition/biomedical-catalyst.ashx.

Facebook has made the move after Yahoo!’s recent issuing of proceedings against Facebook for the infringement of 10 patents including those involving messaging, news feed generation, display of advertising, and click fraud and privacy controls.

The report found copyright licensing problems, such as complex processes and difficulties in working out copyright owners, in the education sector and in the publishing, audiovisual and music industries. A second phase of the report will be an industry consultation as to how to solve these problems.

Paul Gershlick, a Partner and head of Pharmaecuticals and Life Sciences at Matthew Arnold & Baldwin LLP, comments: “The pharma sector is aware of the patent cliff – the falling out of patent of many major blockbuster drugs between 2011 and 2016 without adequate replacements in the pipeline.  These figures confirm that phenomenon. The pipeline has dried up, and other factors remain in place that make the bringing to market of new drugs a difficult task.”

• What should the objective of IP policy be?
• How well is IP policy functioning across Government departments and could this be improved?
• How successful have the attempts to update IP policy been in light of changes brought about by the digital environment?
• How effective is the Intellectual Property Office and what should its priorities be?
• How should the UK government co-ordinate IP policy at an international level and what should be done to promote economic growth?
• Protecting and enforcing IP is in different departments to those that develop IP policy – what impact does this have and how can it be improved?

The Group hopes to hold public question and answer sessions on these issues between Easter and the end of May. Details of the sessions will be on the APPG website at http://www.allpartyipgroup.org.uk/.

Force India fell behind in payments and, unbeknown to Force India, Aerolab, with its parent company Fondmetal Technologies (Fontech), began working for Lotus (operated by the two Malaysia Racing Team companies), a competitor of Force India in F1. In doing so, Aerolab put all the CAD files it had created for Force India onto a hard drive and kept it at its own premises with a model Force India F1 car, blocking Force India’s access to its servers. Aerolab and Fondtech then issued proceedings in Italy to recover the amounts owed by Force India, and began using Force India’s CAD files as a starting point for the work for Lotus.

Aerolab then took some photos of the Lotus F1 model it was working on, but, as the model was incomplete, used some of Force India’s wheel rims and tyres to make the model look complete. Whilst the photographs were intended for internal use only, they were actually made public, and Force India issued proceedings for:

1)    breach of the confidentiality and exclusivity clauses of its agreement with Aerolab and its parent company Fondtech;

2)    equitable breach of confidence against Lotus and Michael Gascoyne (who was previously Chief Technical Officer at Force India but then moved to Aerolab); and

3)    copyright infringement against Lotus.

Aerolab counterclaimed for the money owed to it by Force India.

The High Court ruled in favour of Force India as follows:

1)    Breach of agreement and confidence by Aerolab and Fondtech

Force India had committed a repudiatory breach of the agreement with Aerolab by not paying the fees due under that agreement. Aerolab had accepted that breach and had not breached the exclusivity provisions in the agreement by working for Lotus as it had only started work after the repudiatory breach. However, the confidentiality provisions were ruled to have survived termination.

The High Court pointed out that employees moving from Force India to Lotus could use information that was part of general skill, knowledge and experience in their new role, and that some of Force India’s pleadings were not as specific as to what amounted to confidential information as they could have been. It was agreed between the parties that some of the CAD files had been used as a starting point by Aerolab, misusing Force India’s confidential information, but the High Court ruled that this was not the same thing as using the confidential information to create the Lotus designs. Given the huge differences between the resultant F1 cars that had been produced by Force India and Lotus, the High Court decided that misuse could only be proved in relation to the use of the CAD files as starting points. However, the CAD files still had a high value within the F1 industry, and awarded Force India equitable compensation for that misuse by estimating what fee Force India would have received for giving consent to Lotus to use the CAD files as a starting point. The High Court awarded €25,000 in compensation to Force India, but Force India owed nearly €850,000 in unpaid fees to Aerolab and Fondtech, so that compensation was set off against the much larger amount owed.

2)    Claims against Mr Gascoyne and Lotus

Force India claimed that Mr Gascoyne, and therefore his new employer Lotus, had induced Aerolab’s breach of the agreement. The High Court ruled that, on the evidence, Mr Gascoyne, and therefore Lotus, had no liability. As such, this claim was dismissed.

3)    Claim for copyright infringement

The High Court decided that each CAD file was a literary and artistic work, and, when they were created for Lotus, they reproduced substantial parts of Force India’s works. This reproduction happened in Italy, outside of the jurisdiction of the English courts. However, Lotus then made further copies of the Lotus CAD files in the UK, which amounted to copyright infringement, but only in relation to a few of the F1 car parts about which infringement was pleaded by Force India. 

Force India therefore succeeded in the claims that it brought to the High Court, but was still left with a huge award against it for the fees it had left unpaid under the agreement with Aerolab.

The process of compiling the fixture list for a season involves many complicated steps. This involves some golden rules such as the number of home or away matches a club may have near other home or away matches or at certain times of the week. In addition to the golden rules, the leagues try to take account of the many requests from clubs as to avoiding home games when certain other teams are playing. There is human input into preparing a fixture list to comply with the golden rules and seek to accommodate the other requests, as well as discussing the position with the police. The process involves some random input but also some human effort.

Following a referral from the Court of Appeal, the European Court of Justice has confirmed that not only is there no database right in the fixture lists, there is also no copyright either. For copyright to apply to databases in the EU under the Directive which sought to harmonise the position across all EU countries, there must be the author’s intellectual creation in the selection or arrangement of the database contents. This intellectual creation in the structure of the database is not the same as the intellectual creation or effort that goes into the creation of the data itself (which is what the human effort done by Dataco involves).

Crucially, the ECJ said that significant skill and labour on building a database is irrelevant to database copyright under EU law now, unless it involves originality in the selection or arrangement of the data.

The ruling also means that databases assembled by automated means rather than creative originality will not qualify for copyright protection.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and Head of Pharmaceuticals and Life Sciences, comments: “Big pharma companies are currently struggling to maintain profits in the face of the patent cliff and other challenges they are facing.  Working hand-in-hand with agile innovative start-ups with huge potential may be one way in which they can re-shape their business models in a changing environment.”

The cost of providing a relaxing time for guests has just become more stressful for hotels!

GSK’s new plant will be located in Cumbria.  It will not be up and running until 2020 as it will take some time to build.  But it is a massive shot in the arm for the UK’s life sciences industry against a backdrop over concerns for the industry amidst the patent cliff and other challenges facing the industry.  Last year, Pfizer announced the closure of its research and development facility in Kent with a loss of over 1,000 skilled jobs.  AstraZeneca recently announced that it was cutting over 10% of its global staff. 

Eisai announced a few days ago that it will be building new jobs at its Hatfield base with a centre of excellence for its highly skilled European Union workers – the European Knowledge Centre.

Paul Gershlick, Partner and Head of Pharmaceuticals and Life Sciences at Matthew Arnold & Baldwin LLP says, “Hopefully, GSK and Eisai’s recent announcements will set a new trend that will see the UK’s pharma and life sciences sector fight back against its recent challenges and re-invigorate the country’s involvement in this industry.”

The High Court’s ruling is a direct application of the ruling of the European Court of Justice, ruling that:

-       national legislation that restricts the sale or use of foreign decoder cards is in breach of Article 56 of the Treaty on the Functioning of the European Union and it infringes the freedom to provide services; and

-       exclusive licence agreements that restrict the supply of decoder cards to TV viewers who want to watch those broadcasts outside of the Member State for which the licence is granted are in breach of Article 101 of the Treaty, which prohibits agreements that have as their object or effect the distortion of trade between Member States.

Together with the recent ruling of the High Court in the case of the FA Premier League v QC Leisure, which dealt specifically with copyright issues, it certainly gives the FA Premier League food for thought as to how it will license rights to show matches in future, rather than on the exclusive territorial basis that the High Court has ruled is incompatible with European Union law.

In this particular case, Emirates managed to persuade the Nominet expert that Toth’s registration of emirates.co.uk was abusive. Toth successfully appealed to the Patents County Court, which overturned the Nominet decision. Nominet has now won in its appeal to the High Court that the courts should not have interfered with the expert’s decision except on the usual grounds on which experts’ decisions can be set aside – which are few.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “Brand owners will heave a huge sigh of relief with this decision. The purpose of the domain name resolution process is to offer them a cheap and quick way to getting domain names that should be theirs. If the High Court would have followed the Patents County Court here, it would have ruined that process as cases could have ended up being dragged through the courts.”

BT and TalkTalk had some trouble in getting the appeal heard by the Court of Appeal, and it seems that they may now push to have the appeal heard by the Supreme Court.

In the event, they both lost out. The Patents County Court ruled that, since (on the facts) there was no oral or written agreement between them, they were both joint copyright owners. Wimmer was effectively the producer and Slater the director. Under the Copyright Designs and Patents Act, they were both entitled to copyright in the footage, and so owned that jointly. Since each had used the footage without the other’s consent, they were both infringing copyright.

The case was reported here: http://www.bailii.org/ew/cases/EWPCC/2012/7.html.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “This case turned on the question of who owned copyright and what had been agreed between the parties. The court ruled that nothing had been agreed and so both parties owned the copyright jointly, which left a messy situation, particularly as the parties had fallen out. This shows the need to have a clear written agreement at the outset to document who owns copyright.”

A number of record companies, represented by the BPI and PPL (Phonographic Performance Ltd) applied to the High Court for an order for ISPs to block, or at least impede, access to The Pirate Bay. As with the Newzbin2 case, the application came under section 97A of the Copyright, Designs and Patents Act 1988 (CDPA) which provides that an injunction may be obtained against an ISP that has “actual knowledge” of another person using their service to infringe copyright. The parties had agreed to a trial of two preliminary issues – whether (i) the operators and (ii) the users of the website infringed the copyright of the BPI and PPL members.

The High Court ruled that both the operators and users of The Pirate Bay had infringed copyright under the European Union’s Copyright Directive and the CDPA. The High Court will now go on to consider whether to grant the order against the ISPs to block The Pirate Bay in the same way that Newzbin2 has been blocked, but the outcome seems to be beyond doubt – the High Court stated that the copyright infringement in this case was the same, if not greater, than that involved in Newzbin2.

The ruling in the Newzbin2 case was considered to be a landmark in the fight against copyright infringement, and copyright owners were celebrating a victory. This was particularly following the slow progress in making the blocking provisions of the controversial Digital Economy Act 2010 active. The High Court seems to have upheld the decision in Newzbin2, or at least has got half way there – this will be a huge encouragement to copyright owners to continue in their pursuit of the protection of their copyright by using section 97A of the CDPA.

The Raspberry Pi is a credit-card sized, low-cost computer that is designed to help teach children (and adults) to program. The £22 computer is sold uncased and without a keyboard or monitor, and has been created by volunteers drawn mainly from academia and the UK technology industry.

The computer went on sale this week and its launch is timely given that the Department for Education has just announced that it is considering making changes to the way computing is taught in schools, with the aim of placing greater emphasis on skills such as programming.

In his recent speech outlining the aforementioned changes, the Secretary of State for Education praised the Raspberry Pi, saying “Initiatives like the Raspberry Pi scheme will give children the opportunity to learn the fundamentals of programming… This is a great example of the cutting edge of education technology happening right here in the UK.”

As well as the Government, the Raspberry Pi has naturally created a lot of interest amongst the general public and its launch has been covered by the BBC and the national press. The demand to purchase the new computer has been so overwhelming that The Guardian newspaper even reported that as soon as it went on sale it sold out, crashing the websites selling it in the process! Distributors Premier Farnell reported that its website received half a million hits in 15 minutes, and RS Components said that it was the greatest level of demand it had ever received for a product at any one time.

For those who have been unable to purchase one, don’t worry – more will become available soon, and an even cheaper £16 version will go on sale later in the year.

Ted Mercer, The Partner who did the work, comments, “It has been very exciting to work on the OEM, commercialisation and distribution contract to enable the Raspberry Pi to go on sale and we wish it every success in inspiring a new generation of schoolchildren to learn to program.”

●  delivering value for money for the NHS, with secure provision of safe and effective medicines at reasonable prices, and encouraging efficient development nad competitive supply of medicines.

●  promoting a profitable pharma industry that invests in R&D to encourage future developments for the benefit of patients and industry in the UK and elsewhere.

●  promoting take-up of new clinically proven and cost-effective medicines in the NHS in a sustainable manner.

●  ensuring that the NHS and industry develop sustainable financial and investment strategies through a stable and predictable market.

The Report highlights the Government’s commitment to the pharma sector, which has annual sales of £32 billion.  UK’s exports in 2009 were £20bn compared to imports of £13bn. The UK remains one of the world’s leading locations for pharma R&D, for example with £4.3bn invested in 2008.  The Government wishes to ensure that the UK remains a leading location for life sciences investment. The Prime Minister’s launch of “Strategy for UK Life Sciences” in December 2011 shows how the Government will encourage closer collaboration between the NHS, industry and universities. The Government’s strategy for the next 10-15 years includes promoting new links between researchers, clinicians and business; improving the UK’s performance on clinical R&D; ensuring the UK is supplying high-skilled people for the industry; getting research and treatments to patients more quickly and safely; and backing new scientific advances.

The Report also shows that as against other leading western developed countries, the UK had the cheapest medicines in 2009 and 2010.  This remains a big concern for the pharma industry – how will it receive a fair price for its products? With the US’s prices being nearly three times as expensive as the UK’s in 2010, it shows the challenges of pharma companies who wish to supply in the UK compared to the US.

The Report can be found here.

The ECJ had ruled that the transmission of PL copyrighted works by television in pubs was a communication to the public under article 3(1) of the Copyright Directive, and the High Court ruled that that article was effectively transposed into English law by section 20 of the Copyright, Designs and Patents Act 1988 (CDPA). The Copyright Directive requires member states to provide authors with the exclusive right to authorise or prohibit any communication of their works to the public by wire or wireless means, including the making available of their works to the public in such a way that members of the public may access them from a place and at a time individually chosen by them. Article 3(1) states that a communication to the public of a copyright work is an act restricted by the copyright in a literary, dramatic, musical or artistic work, a sound recording or film, and includes transmission by electronic means. Therefore, the publicans were technically breaching section 20 CPDA when they screened PL games through a decoder card.

However, the High Court ruled that section 72(1)(c) CPDA sets out a defence – that the showing or playing in public of a broadcast, to an audience who have not paid for it, does not infringe any copyright in the broadcast or any film included in it. The High Court ruled that it was clearly the intention of section 72 CPDA to allow films included in broadcasts to be seen and heard in pubs without the consent of the copyright owners, and that any infringement was limited to the PL anthem and graphics.

The High Court also ruled that obligations in exclusive licence agreements to prevent the supply of decoder cards outside the licensed territory breached article 101(1) of the Treaty of the Functioning of the European Union as they restricted competition, so were void to the extent that they restricted the Greek licensee in question from supplying the cards for use in the UK.

As with the decision of the ECJ, both sides can find reasons to be happy with the High Court’s ruling. The PL has some aspects of copyright that it can enforce, but the publicans have received the High Court’s support that the PL’s actions were anti-competitive. It remains to be seen how publicans can deal with the copyright infringement of the PL anthem and graphics – the anthem can simply be turned off and the publicans have made undertakings to do so; however, the graphics may prove to be more difficult to deal with.

The EPO found in accordance with the Enlarged Board of Appeal ruling that as the patent was primarily related to dialysis treatment it was to fall within the definition of a method of surgical treatment and therefore should be excluded from patentability under Article 53 (c) of the European Patent Convention. The EPO agreed that the patent could not fall outside from Article 53 (c) or under any exclusion as the invention was not designed to be used in a non-medical, commercial environment and dialysis could not be classed as a minor intervention and/or treatment on an uncritical part of the body.

For the full decision of the EPO please go to http://www.epo.org/law-practice/case-law-appeals/recent/t071695eu1.html

Apple recently wrote to the European Telecommunications Standards Institute (ETSI), which is approved by the European Commission to impose the standards, stating that all firms involved in the technology industry should sign up to them. The letter was not sent as a public communication, but was later leaked to the Wall Street Journal. Microsoft has followed suit, stating that the Internet only works because of patents being licensed between competitors; and Cisco Systems, a networking equipment manufacturer, has also indicated its support.

The European Commission announced recently that it was investigating Samsung, which signed up to the essential standards imposed by ETSI in 1998, for pursuing an injunction against the use by competitors of standard patents that it owned and for not licensing the patents on fair, reasonable and non-discriminatory terms.

Richard O’Dwyer closed the website in 2010 after he was visited by the police and US officials. However, US authorities alleged that the website contributed towards “criminal activity” in the US despite O’Dwyer never having been to the US, and despite the fact that no action is being taken against him in the UK. They also claimed that the website generated $230,000 in advertising revenue before it was shut down. O’Dwyer should be extradited to face charges of “authorising copyright infringement” as providing the links to the pirated content is a serious offence in the US and would justify extradition under the UK-US extradition agreement.

O’Dywer’s lawyers had argued that the website was merely a search engine for content, and that he should only face charges in the UK. He could face up to ten years in a US jail if found guilty of copyright infringement.

In 2011, Samsung pursued injunctions against competitors in the manufacture of mobile devices for infringement of its patents. This was despite Samsung having given a commitment to the European Telecommunications Standards Institute (ETSI) in 1998 to license standard essential patents relating to European mobile telephone standards to its competitors on fair, reasonable and non-discriminatory terms.  According to the EC, Samsung’s pursuit of an injunction may be an abuse of its dominant market position under Article 102 of the Treaty on the Functioning of the European Union. European standards are agreed specifications imposed by the EC in order to ensure interoperability of products, and standard patents should be licensed on fair, reasonable and non-discriminatory terms.

The EC has said that Samsung was obliged to license the use of 3G mobile and wireless technology patents to its competitors on fair, reasonable and non-discriminatory terms but that, in trying to enforce its rights over those patents against its competitors in court, it may have breached those obligations.

In a reminder of the dangers of an aggressive marketing campaigns aimed at the trade marks of competitors, the Court of Appeal has allowed part of Specsavers’ appeal against the High Court ruling. The Court of Appeal has ruled that:

-          Asda’s cross-appeal over the use of the strapline “be a real spec saver at Asda” should be rejected because it took unfair advantage (under Article 9(1)(c) of the Community Trade Marks Regulation) without due cause of the distinctive character and use of Specsavers’ registered Community Trade Marks (CTMs).

-          Specsavers’ appeal that the strapline “spec saving at Asda” infringed its CTM should be upheld, also on the basis that it took unfair advantage under Article 9(1)(c).

-          Specsavers’ appeal under Article 9(1)(b) that the straplines and bespectacled logo used by Asda infringed its word and logo marks should be dismissed. For the appeal under Article 9(1)(b) to have succeeded, Specsavers would have had to show that the average consumer would have been likely to have been confused. Here, the overall marks gave a different impression to the average consumer. There was a difference between what the judge described as “living dangerously” and one who intended to confuse customers. This was more of a case here of unfairly taking advantage of the reputation of the brand owner’s mark (for which Specsavers succeeded under Article 9(1)(c)) rather than customers being confused.

-          A further query about a wordless logo mark should be referred to the European Court of Justice for clarification.

This ruling should come as a relief to brand-owners, who argued that the High Court interpreted the definition of “unfair advantage” too restrictively in delivering its initial ruling. The ruling of the Court of Appeal emphasised the importance of the market position held by Specsavers due to its brand and the fact that Asda had intended to target that market position in its advertising campaign. A winning result for the brand, although not everything is seen totally clearly yet until we get the ruling back from the European Court of Justice.

The Court of Appeal has rejected an appeal against the decision of the High Court, on the grounds that the High Court’s findings were not based on any error of principle or perversity in factual findings, leaving no scope for a fresh evaluation by the Court of Appeal.

However, the Court of Appeal allowed a cross-appeal against the finding that the UK trade mark for the number 32 had not been infringed. The Court of Appeal ruled that the High Court had incorrectly assumed that, where a separate reputation had not been established by use of the trade mark, there could be no infringement under section 10(2) of the Trade Marks Act 1994; rather, the number 32 was a significant part of the trade marks that the High Court had ruled had been infringed, such that there was no basis for saying that the trade mark for the number 32 had not been infringed as well.

It is also hoped that the licence procedure will be simplified, with the creation of “unlimited music events bundles” for a flat annual fee and the simplification of how background music charges are assessed.

The Court of Appeal reversed the decision of the PCC on the grounds that the PCC had made two errors in light of the prior art:

1. The PCC had failed to identify the correct differences between the prior art and the claims made.
2. The PCC had failed to address whether the differences between the prior art and the claims made amounted to steps that would have been obvious to a person skilled in the art without any knowledge of the alleged invention, or whether those steps required a degree of invention.

MM issued proceedings for infringement of copyright, alleging that the BBC had used his original artistic work in the “Bounce Bunch”, which he had provided to the BBC, in producing “Kerwhizz”, and that the characters were so similar that they could only have been created by the BBC by copying his own characters. MM showed that there were extensive similarities and that the BBC had prior access to his work (which had been available online even before he submitted it to the BBC), such that the Patents County Court passed the burden of proof on to the BBC to show that the characters in “Kerwhizz” did not come about through copying.

The Patents County Court ruled that there had not been any copyright infringement, on the grounds that the BBC’s evidence clearly showed that the “Kerwhizz” creations did not come about through copying the “Bounce Bunch” characters. There was no causal connection between the two. Rather, the Patents County Court found that the BBC witnesses had shown on the evidence that they had already provided the Kerwhizz characters prior to the communication from MM. In any event, “Bounce Bunch” designs were simple, generic and not particularly memorable, such that, even if a BBC designer saw the designs, subconscious copying of those designs was extremely unlikely.

Despite the exact photos being different, the judge ruled that New English Teas’ subsequent photo had infringed what he called the copyright in Temple Island’s “photographic work”. He described this as being the precise motif, the angle of shot, the light and shade, illumination and adaptation by digital manipulation after the event. It was more than being in the right place at the right time, as thought and effort had gone into creating the exact combination of features in a certain way which had made the photo look attractive. Whether it is copied in each case is a matter of fact, but in this case the judge decided that there was sufficient similarity. Although he said he struggled with the decision, he dismissed the argument that the ruling would give one person exclusivity over certain landmarks – it all came down to the way they were represented in a particular aesthetic way.

One opportunity has been seized by big Pharma company, Bristol-Myers Squibb, through its recent acquisition of Inhibitex, a biopharmaceutical company, at a cost of US$2.5 billion. Inhibitex is currently developing a promising new hepatitis C drug, which though currently only in Phase II development has shown great potential. With over 150 million people worldwide suffering from hepatitis C and over 75% of liver disease being attributed to the illness, producing an effective drug to combat or manage the disease is foremost in the mind of the Pharma industry today; and Bristol-Myers Squibb is not alone. Only last November, Gilead Sciences, Inc agreed to pay US$11 billion for Pharmasset, Inc, another company refocusing on the development of further hepatitis C treatments and with Merck, Vertex and Johnson & Johnson also rumoured to be targeting the hepatitis C market, we can see that big Pharma are on the hunt.

Laura Mole, a member of MAB’s Pharmaceutical and Life Sciences Sector team says, “This latest acquisition by Bristol-Myers Squibb is living proof that the industry is changing and big Pharma are almost panic buying in order to build and diversify their portfolios. This is shown by the acquisition of not only market ready products but also drugs still in the development stages. It is clear that with the Patent Cliff threatening, and with Bristol-Myers Squibb itself to fall victim with its soon-to-expire patent protection on blockbuster drug Plavix, any opportunity to grow and protect will be taken. Small/mid sized Pharma had better be ready for the bidding war to come.”

In AstraZeneca’s case, it has established the Science and Technology Integration Office, which will develop collaborative projects with other businesses, universities, governments and charities. AstraZeneca is continuing with its quest to find “the next big thing” with innovation but through cheaper means – effectively building its links with outside providers of research and development.  Meanwhile, some others in the industry such as GSK, the UK’s biggest pharma company, are looking to mitigate against the dangers by diversifying their operations.

AstraZeneca has already signed a deal last month with the Medical Research Council, under which academics can investigate the use of 22 of AstraZeneca’s clinical compounds in treating diseases. AstraZeneca has also recently entered into an agreement with IMS Health, to use IMS Health’s data to assess how well its drugs respond to patients, so as to be able to prove their value-for-money and usefulness to the customers.

The loss of patents comes against a backdrop of attacks on the prices paid by public health systems for drugs in the face of the debt crisis. With harder regulatory burdens to get any new drugs to pass clinical trials and fewer blockbuster possibilities, pharma companies are affected whichever way you turn.

Paul Gershlick, a Partner and Head of Pharmaceuticals and Life Sciences at Matthew Arnold & Baldwin LLP, predicts: “The combined effects of the patent cliff and other factors are going to force the pharma industry into change.  Things cannot continue to go on the way they are currently doing. It is of great concern that this survey shows that most people think that the industry is not adapting fast enough to the external factors affecting it. If the industry does not change quicker, this will have catastrophic effects on the companies that invest in developing and producing the new drugs that improve people’s health.”