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The Armenian Genocide (1915-1923)
by admin on 10/05/09 at 8:10 pm
The Armenian Genocide, the first genocide of the 20th Century, occurred when two million Armenians living in Turkey were eliminated from their historic homeland through forced deportations and massacres between 1915-1918.
The Ancient Armenians
For three thousand years, a thriving Armenian community had existed inside the vast region of the Middle East bordered by the Black, Mediterranean and Caspian Seas. The area, known today as Anatolia, stands at the crossroads of three continents; Europe, Asia and Africa. Great powers rose and fell over the many centuries and the Armenian homeland, when not independent, was at various times ruled by Persians, Greeks, Romans, Byzantines, Arabs and Mongols.
Despite the repeated invasions and occupations, Armenian pride and cultural identity never wavered. The snow-capped peak of Mount Ararat became the focal point of this proud people and by 600 BC Armenia as a kingdom sprang into being.
The First Christian Nation
Following the advent of Christianity, Armenia became the very first nation to accept it as the state religion. A golden era of peace and prosperity followed which saw the invention of a distinct alphabet, the flourishing of literature, art, commerce, and a unique style of architecture. By the 10th century, Armenians had established a new capital at Ani, affectionately called the 'city of a thousand and one churches.'
Under Muslim Rule
In the eleventh century, the first Turkish invasion of the Armenian homeland occurred. Thus began several hundred years of rule by Muslim Turks. By the sixteenth century, Armenia had been absorbed into the vast and mighty Ottoman Empire. At its peak, this Turkish empire included much of Southeast Europe, North Africa, and almost all of the Middle East.
But by the 1800s the once powerful Ottoman Empire was in serious decline. For centuries, it had spurned technological and economic progress, while the nations of Europe had embraced innovation and became industrial giants. Turkish armies had once been virtually invincible. Now, they lost battle after battle to modern European armies.
As the empire gradually disintegrated, formerly subject peoples including the Greeks, Serbs and Romanians achieved their long-awaited independence. Only the Armenians and the Arabs of the Middle East remained stuck in the backward and nearly bankrupt empire, now under the autocratic rule of Sultan Abdul Hamid.
An Ottoman Civil Rights Movement
By the 1890s, young Armenians, educated in the universities of Europe began to press for political reforms in the Ottoman Empire, calling for a constitutional government, the right to vote and an end to discriminatory practices such as special taxes levied solely against them because they were Christians. The despotic Turkish Sultan responded to their pleas with brutal persecutions and massacres. Between 1894 and 1896 over 100,000 inhabitants of Armenian villages were slaughtered during widespread pogroms conducted by the Sultan's special regiments.
But the Sultan's days were numbered. In July 1908, reform-minded Turkish nationalists known as 'Young Turks' forced the Sultan to allow a constitutional government and guarantee basic rights. The Young Turks were ambitious junior officers in the Turkish Army who hoped to halt their country's steady decline.
Armenians in Turkey were delighted with this sudden turn of events and its prospects for a brighter future. Both Turks and Armenians held jubilant public rallies attended with banners held high calling for freedom, equality and justice.
The Rise of Turkish Nationalism
However, their hopes were dashed when three of the Young Turks seized full control of the government via a coup in 1913. This triumvirate of Young Turks, consisting of Mehmed Talaat, Ismail Enver and Ahmed Djemal, came to wield dictatorial powers and concocted their own ambitious plans for the future of Turkey. They wanted to unite all of the Turkic peoples in the entire region while expanding the borders of Turkey eastward across the Caucasus all the way into Central Asia. This would create a new Turkish empire, a 'great and eternal land' called Turan with one language and one religion.
But this new empire would have to come at the expense of the Armenian people, whose traditional historic homeland lay right in the path of the Young Turks' plans to expand eastward. And on that land was a large population of Christian Armenians totaling some two million persons, making up about 10 percent of the Empire's overall population.
Along with the Young Turk's newfound 'Turanism' there was a dramatic rise in Islamic fundamentalist agitation throughout Turkey. Christian Armenians were once again branded as infidels (non-believers in Islam). Young Islamic extremists, sometimes leading to violence, staged anti-Armenian demonstrations. During one such outbreak in 1909, two hundred villages were plundered and over 30,000 persons massacred in the Cilicia district on the Mediterranean coast. Throughout Turkey, sporadic local attacks against Armenians continued unchecked over the next several years.
Fueling hatred toward Armenians within the Empire were the significant cultural differences between Armenians and Turks. Though a majority of the Armenian population in Turkey lived in poverty and despair, a small minority had excelled as best they could within their second class status, with many serving as professionals, businessmen, lawyers, doctors, artists, architects and skilled craftsmen.
Armenians had also, by and large, been well educated compared to their Turkish counterparts, who were largely illiterate peasant farmers and small shopkeepers. The leaders of the Ottoman Empire had traditionally placed little value on education and not a single institute of higher learning could be found within their old empire. The various autocratic and despotic rulers throughout the empire's history had valued loyalty and blind obedience above all.
The Young Turks decided to glorify the virtues of simple Turkish peasantry at the expense of the Armenians in order to capture peasant loyalty. They exploited the religious, cultural, economic and political differences between Turks and Armenians so that the average Turk came to regard Armenians as strangers among them.
The Outbreak of War
When World War I broke out in 1914, leaders of the Young Turk regime sided with the Central Powers (Germany and Austria-Hungary). The outbreak of war would provide the perfect opportunity to solve the 'Armenian question' once and for all for the Young Turks. The world's attention became fixed upon the battlegrounds of France and Belgium where the young men of Europe were soon falling dead by the hundreds of thousands. The Eastern Front eventually included the border between Turkey and Russia. With war at hand, unusual measures involving the civilian population would not seem too out of the ordinary.
As a prelude to the coming action, Turks disarmed the entire Armenian population under the pretext that the people were naturally sympathetic toward Christian Russia. Every last rifle and pistol was forcibly seized, with severe penalties for anyone who failed to turn in a weapon. Quite a few Armenian men actually purchased a weapon from local Turks or Kurds (nomadic Muslim tribesmen) at very high prices so they would have something to turn in.
The Genocide Begins
At this time, about forty thousand Armenian men were serving in the Turkish Army. In the fall and winter of 1914, all of their weapons were confiscated and they were put into slave labor battalions building roads or were used as human pack animals. Under the brutal work conditions they suffered a very high death rate. Those who survived would soon be shot outright. For the time had come to move against the Armenians.
The decision to annihilate the entire population came directly from the ruling triumvirate of ultra-nationalist Young Turks. The actual extermination orders were transmitted in coded telegrams to all provincial governors throughout Turkey. Armed roundups began on the evening of April 24, 1915, as 300 Armenian political leaders, educators, writers, clergy and dignitaries in Constantinople (present day Istanbul) were taken from their homes, briefly jailed and tortured, then hanged or shot.
Next, there were mass arrests of Armenian men throughout the country by Turkish soldiers, police agents and bands of Turkish volunteers. The men were tied together with ropes in small groups then taken to the outskirts of their town and shot dead or bayoneted by death squads. Local Turks and Kurds armed with knives and sticks often joined in on the killing.
Then it was the turn of Armenian women, children, and the elderly. On very short notice, they were ordered to pack a few belongings and be ready to leave home, under the pretext that they were being relocated to a non-military zone for their own safety. They were actually being taken on death marches heading south toward the Syrian Desert.
Muslim Turks who assumed instant ownership of everything quickly occupied most of the homes and villages left behind by the rousted Armenians. In many cases, local Turks who took them from their families spared young Armenian children from deportation. The children were coerced into denouncing Christianity and becoming Muslims, and were then given new Turkish names. For Armenian boys the forced conversion meant they each had to endure painful circumcision as required by Islamic custom.
Turkish gendarmes escorted individual caravans consisting of thousands of deported Armenians. These guards allowed roving government units of hardened criminals known as the 'Special Organization' to attack the defenseless people, killing anyone they pleased. They also encouraged Kurdish bandits to raid the caravans and steal anything they wanted. In addition, an extraordinary amount of sexual abuse and rape of girls and young women occurred at the hands of the Special Organization and Kurdish bandits. Most of the attractive young females were kidnapped for a life of involuntary servitude.
The death marches during the Armenian Genocide, involving over a million Armenians, covered hundreds of miles and lasted months. Indirect routes through mountains and wilderness areas were deliberately chosen in order to prolong the ordeal and to keep the caravans away from Turkish villages.
Food supplies being carried by the people quickly ran out and they were usually denied further food or water. Anyone stopping to rest or lagging behind the caravan was mercilessly beaten until they rejoined the march. If they couldn't continue they were shot. A common practice was to force all of the people in the caravan to remove every stitch of clothing and have them resume the march in the nude under the scorching sun until they dropped dead by the roadside from exhaustion and dehydration.
An estimated 75 percent of the Armenians on these marches perished, especially children and the elderly. Those who survived the ordeal were herded into the desert without a drop of water. Being thrown off cliffs, burned alive, or drowned in rivers.
During the Armenian Genocide, the Turkish countryside became littered with decomposing corpses. At one point, Mehmed Talaat responded to the problem by sending a coded message to all provincial leaders: 'I have been advised that in certain areas unburied corpses are still to be seen. I ask you to issue the strictest instructions so that the corpses and their debris in your vilayet are buried.'
But his instructions were generally ignored. Those involved in the mass murder showed little interest in stopping to dig graves. The roadside corpses and emaciated deportees were a shocking sight to foreigners working in Turkey. Eyewitnesses included German government liaisons, American missionaries, and U.S. diplomats stationed in the country.
Western Response
During the Armenian Genocide, the Christian missionaries serving in the Empire were often threatened with death and were unable to help the people. Diplomats from the still neutral United States communicated their blunt assessments of the ongoing government actions. U.S. ambassador to Turkey, Henry Morgenthau, reported to Washington: 'When the Turkish authorities gave the orders for these deportations, they were merely giving the death warrant to a whole race"
The Allied Powers (Great Britain, France, Rtussia) responded to news of the massacres by issuing a warning to Turkey: "the Allied governments announce publicly that they will hold all the members of the Ottoman Government, as well as such of their agents as are implicated, personally responsible for such matters."
The warning had no effect. Newspapers in the West including the New York Times published reports of the continuing deportations with the headlines: Armenians Are Sent to Perish in the Desert ' Turks Accused of Plan to Exterminate Whole Population (August 18, 1915) ' Million Armenians Killed or in Exile ' American Committee on Relief Says Victims of Turks Are Steadily Increasing ' Policy of Extermination (December 15, 1915).
Armenian Self-Defense
Temporary relief for some Armenians came as Russian troops attacked along the Eastern Front and made their way into central Turkey. But the troops withdrew in 1917 upon the Russian Revolution. Armenian survivors withdrew along with them and settled in among fellow Armenians already living in provinces of the former Russian Empire. There were in total about 500,000 Armenians gathered in this region.
In May 1918, Turkish armies attacked the area to achieve the goal of expanding Turkey eastward into the Caucasus and also to resume the annihilation of the Armenians. As many as 100,000 Armenians may have fallen victim to the advancing Turkish troops.
However, the Armenians managed to acquire weapons and they fought back, finally repelling the Turkish invasion at the battle of Sardarabad, thus saving the remaining population from total extermination with no help from the outside world. Following that victory, Armenian leaders declared the establishment of the independent Republic of Armenia in a small portion of their historic homeland in the Caucasus.
War Trials
World War I ended in November 1918 with a defeat for Germany and the Central Powers including Turkey. Shortly before the war had ended, the Young Turk triumvirate; Talaat, Enver and Djemal, abruptly resigned their government posts and fled to Germany where they had been offered asylum.
In the months that followed, repeated requests by Turkey's new moderate government and the Allies were made asking Germany to send the Young Turks back home to stand trial. However all such requests were turned down. As a result, Armenian activists took matters into their own hands, located the Young Turks and assassinated them along with two other instigators of the mass murder.
Meanwhile, representatives from the fledgling Republic of Armenia attended the Paris Peace Conference in the hope that the victorious Allies would give them back their historic lands seized by Turkey. The European Allies responded to their request by asking the United States to assume guardianship of the new Republic. However, President Woodrow Wilson's attempt to make Armenia an official U.S. protectorate was rejected by the U.S. Congress in May 1920.
But Wilson did not give up on Armenia. As a result of his efforts, the Treaty of Sevres was signed on August 10, 1920 by the Allied Powers, the Republic of Armenia, and the new moderate leaders of Turkey. The treaty recognized an independent Armenian state in an area comprising much of the former historic homeland.
Justice Denied
However, Turkish nationalism once again reared its head. The moderate Turkish leaders who signed the treaty were ousted in favor of a new nationalist leader, Mustafa Kemal, who simply refused to accept the treaty and even re-occupied the very lands in question then expelled any surviving Armenians, including thousands of orphans.
No Allied power came to the aid of the Armenian Republic and it collapsed. Only a tiny portion of the easternmost area of historic Armenia survived by being becoming part of the Soviet Union.
After the successful obliteration of the people of historic Armenia during the Armenian Genocide, the Turks demolished any remnants of Armenian cultural heritage including priceless masterpieces of ancient architecture, old libraries and archives. The Turks even leveled entire cities such as the once thriving Kharpert, Van and the ancient capital at Ani, to remove all traces of the three thousand year old civilization.
Referring to the Armenian Genocide, the young German politician Adolf Hitler duly noted the half-hearted reaction of the world's great powers to the plight of the Armenians. After achieving total power in Germany, Hitler decided to conquer Poland in 1939 and told his generals: 'Thus for the time being I have sent to the East only my 'Death's Head Units' with the orders to kill without pity or mercy all men, women, and children of Polish race or language. Only in such a way will we win the vital space that we need. Who still talks nowadays about the Armenians?'


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In the first post of 2011 we made reference to 3 rulings of the Spanish Supreme Court, granting the appeals filed by Pfizer and Warner-Lambert (here).
The Spanish Supreme Court has granted a fourth appeal, filed again by Pfizer. The case refers to EP0325571.
Arguments used by Spanish Supreme Court in the new ruling are the same previously used: Translation of European Patents can be modified at any time, in order to include claims deleted (for any reason) in the original translation.
A copy if the new ruling (in Spanish) can be obtained here, or using the Spanish Supreme Court database (here) if the link to the ruling doesn't work (as it may happen).
The PatLit weblog covers patent litigation law, practice and strategy, as well as other forms of patent dispute resolution. If you love -- or hate -- patent litigation, this is your blog. You can contact PatLit by emailing Michael here
Monday, 25 April 2011
Spain: Modification of EP translations (2)
Pubblicato da Antonio Selas a 2:19 pm No comments:
Etichette: modification of translation, Spain, translation
Professional practice mainly focused on IP and Competition Law. General advising, judicial and extrajudicial defence (including the coordination of litigations in several jurisdictions) in relation to patents, marks, designs, domain names, e-commerce, as well as commercial contracts.
Friday, 22 April 2011
PCC 25: Will High Court litigation threat make Cautious' tentacles wobble?
The PatLit PCC Series, subtly scripted by the Chartered Institute of Patent Attorneys (CIPA), seeks to explain how litigation works in the recently-revamped Patents County Court (PCC) for England and Wales, taking as its theme a dispute between Cautious Co and IPOff Ltd as to whether IPOff has infringed the IP rights of Cautious in its robotic octopus. In this episode, the 25th, CIPA President Alasdair Poore considers further the issues raised with regard to transfer of litigation between the PCC and its big, more expensive brother the Patents Court.
Last week Cautious was considering the possibility of having IPOff's claim in the
Patents Courtstruck out – on the grounds that it was an absurd abuse of process to bring proceedings in the High Court when there were already proceedings which raised many of the same issues pending in the PCC. Despite gaining a taste for litigation, Cautious's patent attorney has decided that discretion is (partly) the better part of valour, and will be making an application to have the proceedings transferred to the PCC, at least as an alternative to strike out.
As readers will know, the considerations in relation to transfer are set out in s.289 Copyright Designs and Patents Act 1988. This disapplies (currently) s.41 of the County Courts Act 1984 (order by the High Court to transfer from the County Court to the High Court) – but this only applies to the special jurisdiction of the PCC, so it is relevant in Cautious's case but might not be in other cases. It then provides that, in other cases, the Court will have regard to the financial position of the parties. This leads to the provisions of Part 30 (CPR30.3), which sets out the general criteria for transfer between any County Court and the High Court. Of these, Judge Birss QC pointed out in Alk-Abello v Merdian ([2010] EWPCC 14), rules 30.3(c), (f), (g) and (h) were unlikely to be relevant in most PCC cases (para 18), leaving the financial value and amount in dispute (30.3(a)), an alternative court being better 30.3(b), simple or complex facts, issues, remedies or procedures (30.3(d)), and the importance of the outcome to the public (30.3(e)).
In addition, CPR63.18 explicitly provides for transfer, and in particular that the provisions of PD63.9 will apply. These are:
"(1) the financial position of the parties and whether a party can only afford to bring or defend the claim in the
Patents County Court;
(2) whether the claim is appropriate to be determined by the Patents County Court having regard, in particular, to
(a) the value of the claim;
(b) the complexity of the issues;
(c) the estimated length of the trial."
Finally, Judge Birss QC referred to Memminger v Triplite (Court of Appeal) ([1992] RPC 210) and Chaplin v Lotus (ditto, unreported) to bring in several commonsense propositions: first in Memminger: if there is no reason to alter the position, all the factors are neutral, the proceedings should stay put; and proper administration of justice is important and not just the parties wishes (para 24); and transfer is not required just because there are important matters of fact or law, and the aim of the PCC is to handle the smaller, shorter, less complex, less important, lower value actions.
These propositions were reflected equally in the subsequent case in the High Court seeking transfer to the PCC, Caljan Rite-Hite v Solvex ([2010] EWHC 669 (Ch)). Here Kitchin J had to decide on possible transfer of a trade mark ownership dispute. Interestingly, the case started in the IPO, was transferred to the High Court at Solvex's request, and then Solvex sought to have it transferred to the PCC. In addition, as in Cautious's case, there were also patent and other disputes in the offing, but these were not discussed further.
Kitchin J's analysis is a useful summary of the some of the steps to go through: could Solvex afford to litigate in the High Court – although somewhat impoverished, there seemed to be evidence they could raise finance, and they agreed that they would continue to defend the proceedings in the High Court (para 18, 19). Value: the value of the claim seemed to be about £500,000 (over or under but significant). Complexity: it was clearly to require disclosure, probably 6 witnesses each with cross examination. Trial length: in the light of these it really was unlikely the proceedings would last less than 3 days, and probably more. So no transfer was ordered.
How will those apply to Cautious? It is always difficult to say "no, I will not fight the proceedings if they are in the more expensive forum", unless really being squeezed. But it is worth bearing in mind that this really may be pretty decisive. In this case Cautious did not bring proceedings in the High Court because they were too expensive, so …? Will he hold his nerve and say he would not defend the threats claim in the High Court? The other factors, Cautious's patent attorney has already concluded that he could justify proceedings in the PCC.
There is one other factor which will surely be relevant here: the existing PCC proceedings. The factors should be the same in applying to transfer the High Court proceedings to the PCC, and the PCC proceedings to the High Court, with the exception that the PCC proceedings were started first, because it cannot be sensible for proceedings on many of the same facts to take place in both jurisdictions. However it would seem strange for Cautious to be arguing the case for not transferring the PCC proceedings to the High Court as part of the application to transfer the High Court proceedings to the PCC.
The proposal is, in medium term, to make an amendment to s.292 of the CDPA 88 to permit both applications to be brought before the High Court. In the meantime, if this situation crops up in real life there are probably some imaginative ways of finessing the problem – for example by having Judge Birss wear two hats (or is it wigs).
Pubblicato da Jeremy a 11:20 am No comments:
Thursday, 14 April 2011
"The public should not be expected to check the EPO register", says judge
[2011] EWHC 907 (Pat). Simon Spink (Wragge & Co) has written this short summary, adding the observation that this ruling appears to mark a significant progression of the law in relation to the Patents Act 1977 s.68 (which deals with the effect of non-registration of a transaction on infringement proceedings) and reach-through claims. Lundbeck also had a defence under s.64 (the right to continue use begun before priority date). However as that defence was accepted by Infosint, Floyd J did not make any detailed conclusions on the law in relation to s.64. Anyway, Simon explains, with references to the judge's paragraph numbers in []s:
"This revocation action was brought by Lundbeck against Norpharma and its assignee Infosint (the proprietor of the patent, who had not registered the transfer with the UK IPO, leaving Norpharma as the registered proprietor). The patent related to a method to make 5-carboxyphthalide (5-cbx), the first intermediate in the manufacture of Lundbeck's blockbuster anti-depressant drugs citalopram and Escitalopram, involving a reaction of two common reagents in a solvent. This was claimed in claim 1, the distinguishing features of the claimed process over the prior art being one or more of (i) the temperature and (ii) the pressure at which the reaction was conducted, and (iii) the concentration of the solvent. The patent also contained a "reach-through" claim (claim 22), which claimed a process for the synthesis of citalopram in which the process of claim 1 was contained.
Lundbeck said that claim 1 lacked novelty and inventive step over the prior art; that claim 22 was obvious and insufficient. Infosint counterclaimed for infringement of the patent by Lundbeck's use of the processes in the UK, and by importation into the UK of direct products of claim 22 (i.e. citalopram) made outside the UK. Infosint's infringement case was based on over 40,000 pages of batch records produced by Lundbeck and its third party manufacturers. In addition to its non-infringement arguments, Lundbeck pleaded a prior user defence under s.64 (it had been using the process on a commercial scale for some 15 years prior to the publication of the patent application) and also argued s.68 (as a limitation to any damages and/or costs).
As for novelty, Floyd J was required to consider the law of overlapping ranges in relation to a novelty-only prior art citation under s.2(3). The only integer in issue was the concentration of the solvent in the prior art document. Floyd J found that absence of a concentration figure in the prior art could not amount to a disclosure of a range of concentrations from 1% to 99% [93]. Accordingly, it was not necessary for him to decide whether to follow the EPO Technical Board of Appeal in Unilever T-666/89. [Readers who don't like the technical details should skip the coloured text]
Claim 1 was found to be obvious over the Forney prior art citations [121]. Claim 22 was found to be obvious over the '513 patent and Forney. The approach taken in reaching the later conclusion is worth noting. Lundbeck said the skilled person would start with the '513 patent (a published method to make citalopram from 5-cbx) but would need a method to make 5-cbx; and his search for such a method would uncover Forney's work (with the obvious consequence that he would use the claimed process to make 5-cbx). The Judge noted early on in his Judgment that "it is impermissible to make so-called mosaics of individual citations (unless it would be obvious to do so)" [20]. However, on the evidence, the Judge found that the skilled person seeking to work '513 would consult "the Beilstein handbook of Organic Chemistry … the standard reference for the preparation of organic compounds" [127] and would "obviously and inevitably find and read Forney" [133]. Lundbeck also made an "aggregation" argument , which the Judge did not feel it necessary to deal with [134].
Claim 22 was not found to be insufficient, the Judge finding that the technical contribution of claim 22 was making citalopram via 5-cbx made by the process of claim 1 and accordingly the claimed monopoly did not exceed the contribution to the art [143]. The Judge also held that despite the patent not disclosing all methods of making citalopram from 5-cbx, one could reasonably expect the invention to work with other methods and thus the claim was sufficiently enabled across its entire breadth [145].
Lundbeck had made 5-cbx before the priority date in both the UK (since 1995) and Denmark (since 1986) and Infosint accepted that Lundbeck had a section s64 prior user defence in relation to the operation of those processes. The judge was therefore not required to make detailed conclusions on the law on the prior user defence. However, the Judge did say that the prior user right in relation to importation of citalopram should only extend to citalopram made by the process of claim 22 and not citalopram however made - one relying on section s.64 may only do what is "substantially the same as what was done before" [170]. A substantial change to the process may still result in a process within the scope of the claim - accordingly the s.64 defence did not extend to two pot processes (a variation devised by Lundbeck after publication of the patent to avoid infringement).
Although the patent was found to be invalid, Floyd J still dealt with s.68. Infosint had registered the assignment of the patent at the EPO - but this had been after its date of grant. Thereafter, Infosint's UK agents, although instructed to do so, had omitted to register Infosint as proprietor on the UK register. Floyd J found that, once a patent was granted, there was no deeming provision for the purposes of the Patents Act which applied to assignments registered at the EPO, and thus the assignment had not been registered for the purposes of the Act [196].
"The public should not be expected to check the EPO register to see whether by any chance an assignment of the patent was registered …".
Infosint argued that the "applicants" had done all that was practicable, and it was their agents who had erred. The judge did not agree, and accordingly Lundbeck could have relied on s.68 to limit damages (pre-29th April 2006) and costs (post-29th April 2006) had the patent been valid [201]".Thanks, Simon!
Wednesday, 13 April 2011
Administrative appeals in China - check your post
That the Chinese courts are sticklers for procedural detail is well-known, writes Sharon Qiao of Rouse Beijing. A recent IP Kat blog pointed out to foreign litigants the fundamental importance of having evidence for use in mainland litigation notarised; failure to do so runs the risk of having the evidence rejected by the Court. A recent story from Beijing highlights the need to adhere strictly to the time limits for filing administrative appeals against Patent Reexamination Board (PRB) decisions. It also provides guidance on taking advantage of the 'postal rule'.
Beijing lawyers acted for a client in an administrative appeal to the Beijing No. 1 Intermediate People's Court (the Court) against a PRB decision which had held the client's patent invalid. Appeals from decisions of the PRB must be filed within three months of the date of receipt of notification of the decision. Art. 4, paragraph 3 of the Implementing Regulations of the Patent Law states that "where any document is sent by post by the patent administration department, the 16th day from the date of mailing shall be presumed to be the date on which the party concerned receives the document". Here, although the appeal had been filed within three months of 'receipt' of the decision, as defined in Art. 4, para 3, it had been filed after the expiration of three months from its issuance. The question arose whether or not the appeal had been filed in time.
The Court requested the appellant to provide proof that the decision had been received by post i.e. that the appellant was entitled to the benefit of Art. 4, paragraph 3. It is usual for PRB decisions to be served by post, and the Court had never previously required proof of sending. The patent agency to which the decision had been sent had not kept the original envelope and was thus unable to provide the post-mark date. Fortunately, information about the posting of decisions is provided on the State Intellectual Property Office (SIPO) website; this information was corroborated by the post registration number stamped on the PRB decision itself. This evidence satisfied the Court and the appellant was able to benefit from the rule that the three month period for filing an appeal only starts to run from the 16th day after posting. The appellant's appeal documents were thus accepted by the Court.
How many appellants have not been so lucky? The IP division of the Beijing No. 1 Intermediate People's Court deals with 4,000 patent and trade mark administrative litigation cases a year and is dealing with a large backlog of cases at present. It does not have to look far for an excuse to reject a case outright.
Prospective appellants are advised to file their initial appeals as soon as possible after receiving the PRB decision, and to ensure that formal case filing materials (e.g. notarised and legalised Powers of Attorney, Company Certificates and Certificate of Legal Representative) are submitted well within the three month time limit.
Where appellants wish to take advantage of the provisions of Article 4, they should visit the following link to obtain proof that the decision they are appealing was sent to them: http://app.sipo.gov.cn:8080/sipoaid/sipoaid/jsp/notice/searchnotice.jsp.
It is, however, also advisable to keep the envelope in which the decision was posted, as security, just in case postage information is not available on the website.
It should be noted that where a decision has been delivered by hand, the prospective appellant will not be able to benefit from the 15-day 'extension' provided by Article 4, paragraph 3: in that case, the decision will be deemed to have been received on the date of delivery (Article 4, paragraph 4).
Beijing lawyers acted for a client in an administrative appeal to the Beijing No. 1 Intermediate People's Court (the Court) against a PRB decision which had held the client's patent invalid. Appeals from decisions of the PRB must be filed within three months of the date of receipt of notification of the decision. Art. 4, paragraph 3 of the Implementing Regulations of the Patent Law states that "where any document is sent by post by the patent administration department, the 16th day from the date of mailing shall be presumed to be the date on which the party concerned receives the document". Here, although the appeal had been filed within three months of 'receipt' of the decision, as defined in Art. 4, para 3, it had been filed after the expiration of three months from its issuance. The question arose whether or not the appeal had been filed in time.
The Court requested the appellant to provide proof that the decision had been received by post i.e. that the appellant was entitled to the benefit of Art. 4, paragraph 3. It is usual for PRB decisions to be served by post, and the Court had never previously required proof of sending. The patent agency to which the decision had been sent had not kept the original envelope and was thus unable to provide the post-mark date. Fortunately, information about the posting of decisions is provided on the State Intellectual Property Office (SIPO) website; this information was corroborated by the post registration number stamped on the PRB decision itself. This evidence satisfied the Court and the appellant was able to benefit from the rule that the three month period for filing an appeal only starts to run from the 16th day after posting. The appellant's appeal documents were thus accepted by the Court.
How many appellants have not been so lucky? The IP division of the Beijing No. 1 Intermediate People's Court deals with 4,000 patent and trade mark administrative litigation cases a year and is dealing with a large backlog of cases at present. It does not have to look far for an excuse to reject a case outright.
Prospective appellants are advised to file their initial appeals as soon as possible after receiving the PRB decision, and to ensure that formal case filing materials (e.g. notarised and legalised Powers of Attorney, Company Certificates and Certificate of Legal Representative) are submitted well within the three month time limit.
Where appellants wish to take advantage of the provisions of Article 4, they should visit the following link to obtain proof that the decision they are appealing was sent to them: http://app.sipo.gov.cn:8080/sipoaid/sipoaid/jsp/notice/searchnotice.jsp.
It is, however, also advisable to keep the envelope in which the decision was posted, as security, just in case postage information is not available on the website.
It should be noted that where a decision has been delivered by hand, the prospective appellant will not be able to benefit from the 15-day 'extension' provided by Article 4, paragraph 3: in that case, the decision will be deemed to have been received on the date of delivery (Article 4, paragraph 4).
PCC Page 24 – One strike (with a tentacle) -- but are you out?
The PatLit PCC Series, subtly scripted by the Chartered Institute of Patent Attorneys (CIPA), seeks to explain how litigation works in the recently-revamped Patents County Court (PCC) for England and Wales, taking as its theme a dispute between Cautious Co and IPOff Ltd as to whether IPOff has infringed the IP rights of Cautious in its robotic octopus. In this episode, the 24th, CIPA President Alasdair Poore considers the prospects of striking out a High Court claim which looks as though it might be an abuse of process ...
IPOff issued proceedings in the High Court (Patents Court) for threats – alleging that the comments that Cautious had made about his (alleged) patent and designs had resulted in the loss of business from a betting syndicate which was about purchase IPOff's system, fearing the might (and costs) of the UK courts, and being unwilling to bet on success. IPOff allege that the contract would have been enormously profitable, well in excess of the proposed PCC damages limit, and that such a case is only suitable for the High Court.
Cautious's patent attorney is contemplating whether Cautious should seek to strike out the claim as an abuse of process. It is quite clear to Cautious that the High Court claim was brought simply as a malicious exercise to rack up costs and make proceedings more complicated. The alternative is to apply to the High Court for transfer of the claim to the PCC. At the moment, there is no damages limit, so it is not even necessary to agree potential recovery above the damages limit.
As far as Cautious's patent attorney can determine this is a bit of a new area. Striking out for abuse of process, and indeed specifically striking out a claim for multiplicity of proceedings, is not a new area at all – more on that in a moment. But bringing simultaneous proceedings in more than one English court, especially where there could be sound reasons for the second set of proceedings to be brought in the second court, is not such a common occurrence. There are numerous cases where proceedings have been brought in multiple courts in different countries – cross border forum-shopping. The intention in the EU of the Brussels Regulation was to reduce cross border forum-shopping, although torpedoes and super torpedoes were born as a result. But in those cases there is not the option of transfer.
Cautious patent attorney thinks: "A strike out would be a rather satisfying solution. Not only would it deal with the question of costs in the High Court – definitely awarded against IPOff -- but it would look like a victory." A small, but nevertheless tactical victory. A word of caution here. Tactical victories look and feel great. However, they are often used as a good way to incur costs without taking a case much forward. When you start thinking "tactical victory" in the PCC, also think "is this really a good use of client resources?"
The court has the power to strike out a statement of case under its case management powers in CPR3.4(2) if it appears to the court that
(a) the statement of case discloses no reasonable grounds for bringing or defending the claim;(b) the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or(c) there has been a failure to comply with a rule, practice direction or court order.
The power under CPR3.4(2) does not limit any other power of the court to strike out a statement of case (CPR 3.4(5)).
PD 3A 1.4 provides examples of where a case is without merit. An illustrative example where a claim may fall with CPR 3.4(2)(b) where it is "vexatious, scurrilous or obviously ill-founded" (PD 3A 1.5).
Although an application to strike out the High Court threats claim is tempting, there is a salutary lesson to be learned – the courts tend to treat such applications as a last resort and Cautious might find costs orders against it, should its application be dismissed. Indeed, in Reckitt Benkiser UK v Home Pairfum Limited [2004] EWHC 302 (a trade mark infringement case with a counterclaim alleging groundless threats), Laddie J considered the courts' powers to strike out a valid cause of action as in Wallis v Valentine [2002] EWCA (Civ) 1034, [2003] EMLR 8 and said:
"The court's powers under the CPR are wide. They should be tailored to meet the circumstances of the case. Although, as Wallis shows, the court has power to strike out even a prima facie valid claim where there is abuse of process, it does not follow that in all cases of abuse the correct response is to strike out the claim. The striking out of a valid claim should be the last option. If the abuse can be addressed by a less draconian course, it should be"
As mentioned above, there is a class of strike-out which has become increasingly familiar recently, which quite often occurs in intellectual property cases. This arises where a claimant attempts to litigate in a later set of proceedings a claim which should or could properly have been brought in earlier proceedings. Because, in many intellectual property cases, one act, such as sale of a product, can give rise to several causes of action (such as infringement of a trade mark, passing off, design right infringement and patent infringement), there is the potential to bring multiple claims. The question is: will the court permit that?
The principle that the Courts will not is based on (and referred to by the name of) a 19th century case, Henderson v Henderson There is an excellent and very full discussion of the issues, which also reviews many of the past examples, in Jonathan v Gore Wood, and a further discussion in the White Book (Vol.1, para 1.4.15), and Nikken Kosakusho Works v Pioneer Trading Company [2005] EWCA 906 provides and example in the patent field. The specific issue is not one of res judicata or issue estoppel (the principle that a party will not be allowed to relitgate the same facts, which is an absolute bar to fresh proceedings), but is that there should not be a multiplicity of proceedings where a party could properly be expected to have litigated them together, and is strictly a part of the courts powers to regulate proceedings.
This issue is potentially very pertinent in the PCC. What if a claimant thinks that the trade mark or registered design case is straightforward, and entirely suitable for the PCC, but the patent case would be much too complicated and difficult, or just too expensive and unsuitable? Can the claimant be permitted to bring proceedings in one court, lose and bring a fresh set of proceedings in a different court?
The prospect of proceedings being started in parallel courts was one that the group looking at revised rules for the PCC did contemplate, and it is for that reason that there is a proposal to amend the transfer jurisdiction so that an application for transfer can be brought in either the High Court or the PCC, but that provision has not yet been implemented. While the Henderson v Henderson cases are important for intellectual property practitioners and clients thinking that they might keep some of their powder dry, it is also worth repeating that the Court is likely to look on an application to strike out with considerable caution, and ask whether any lesser remedy will serve the same purpose. In this case, since the probable outcome is that IPOff will bring fresh proceedings in the PCC, it is likely to view the better course as transferring the claim and making an adverse costs order.
Cautious' patent attorney has been informed that an application to transfer can be made in writing, and that is what he plans to do. Striking out looks like a strike too far.
Pubblicato da Jeremy a 11:08 am No comments:
Tuesday, 12 April 2011
Judicial reform of patent litigation in the US: new article published
JIPLP). The team consists of James R. Farrand, Victoria C. Shapiro, Paul A. Abbott, Christopher M. Stothers, Seth D. Weisberg and Richard A. Killworth. The abstract reads as follows:
"Legal context. The past quarter of a century was a time of strong and increasing patent protection in the US. But recently, in the face of pressure from the business community, scholarly studies, US Supreme Court opinions, and threats of Congressional action, US courts have narrowed patent protection in a wide variety of ways. This article explores the specifics of that reversal.
Key points. Recent court decisions have overturned a variety of pro-patentee rules in litigation, facilitating patent invalidation, reducing patent coverage and the availability of important remedies for infringement, and cutting the power of juries in patent cases. The result is a rapid and wide-ranging retrenchment--essentially "patent reform" without Congressional participation. Particularly affected are non-practising entities, which are more vulnerable to validity challenges and, in most cases, have lost the strongest weapon in their armoury for licensing negotiations--the chance to obtain an injunction against infringers. Holders of business method patents and small-entity patent holders also suffer disproportionately from the changes.
Practical significance. The article summarizes the facets of US patent protection affected by the recent decisions and discusses the consequences of the changes for current (and potential) US patent holders and producers/traders active in, or selling to, the US".Subscribers to the online version of JIPLP can access it already, and the printed version will be published soon. Non-subscribers can access it on a pay-per-view basis by clicking here and scrolling down to ''Purchase short-term access".
Pubblicato da Jeremy a 3:06 pm No comments:
Etichette: judicial reform, US patent litigation
Monday, 11 April 2011
Why European patent court, unitary system must be linked
Jochen Pagenberg (Bardehle Pagenberg, right), was first posted on the EPLAW Patent Blog here but deserves a wider readership. This is because it has been carefully thought out by an author who has read and considered both the Advocates Generals' Opinion and Court of Justice ruling and has measured the implications of these documents against his own experience as a skilled and seasoned patent practitioner who has worked closely enough with users of the patent system to know what they want -- which is a lot more than can be said for those who press for (or oppose) solutions on grounds based on political expediency or administrative convenience.
The title is itself an eloquent summary of the author's view of the situation. In the concluding passage of the final part of his piece, headed "Consequences and remedies?", he writes (with PatLit's emphases added in red):
The title is itself an eloquent summary of the author's view of the situation. In the concluding passage of the final part of his piece, headed "Consequences and remedies?", he writes (with PatLit's emphases added in red):
"3. No segregation of unitary patent and court system
It would certainly require some time, negotiations, expert discussions and perhaps even a user survey before the new goals will become clear. It would therefore be a dangerous mistake to segregate now the legal instruments for the Unitary patent from the discussion of the court system. If one talks to users one will hear that they will not file one single Unitary patent as long as there is no court system in place. The above considerations show that it may still be a long way with a high probability of failure. Therefore, it would certainly not be wise to risk another defeat for a project as important as this.
It remains that the CJ obviously has closed the door for joining non-EU countries in the patent litigation system as it has been discussed so far. It has also expressly excluded EPC patents from its Opinion. Therefore the solution of an international court for EPC patents – at least as a first step for a common international patent court in Europe – comes again into focus, since the serious political and legal restrictions of the EU rules would not apply.
Users should therefore urge the Commission and the member states not to hastily conclude the Enhanced Cooperation agreement without having found an acceptable solution for the litigation system . In this context it should be examined in particular how the rules envisaged under the Unitary patent could prevent the result that substantive patent law, not only as far it is now contained in the EPC, would become part of the EU legal order so that patentability requirements, questions of patent scope etc. would be interpreted in the future by judges without patent experience. Also this question is a serious concern of users and requires a thorough debate before any project can be properly evaluated by industry. It is difficult to accept if under an international court a body of generally accepted EPC case law is further developed which a decade later is threatened to be overturned by a court system which is intended to create its own substantive patent law. Such strategic and organisational questions must also be touched now so that the overall aim is not lost out of sight".
Pubblicato da Jeremy a 5:59 am 6 comments:
Etichette: EU patent court
Friday, 8 April 2011
Uncle Sam v False Patent Marking
Uncle Sam v False Patent Marking
Across the pond, Uncle Sam has been battling false patent marking since 1946 with the help of United States Code, Title 35. While some undertakings wish to market their products by prominently displaying a patent marker, there can be situations where entities may use patent markers with the intent of deceiving the public. Moreover, 35 U.S.C., § 292 covers claims where an invalid, expired or inapplicable patent has been applied. A myriad of issues have arisen during such claims – specifically, in relation to the requirement of intent (Federal Rules of Civil Procedure, Rule 9(b)). Recently, this hot-button topic has been heavily scrutinised because many contend countless cases go unsanctioned due to the difficulty of proving intent to deceive. In order to ascertain whether such conclusions warrant suspicion as to the effectiveness of the statute, one must rely on the case law. Buckle-up it's going to be a bumpy ride.
Background: the False Patent Statute
Briefly, 35 U.S.C. § 292(a), states:
"Whoever marks upon, or affixes to, or uses in advertising in connection with any unpatented article, the word 'patent' or any word or number importing that the same is patented for the purpose of deceiving the public . . . [s]hall be fined not more than $500 for every such offense."
The statute addresses (a) infringers using existing patent numbers; (b) individuals who mark unpatented items as patented and (c) the exploitation of the term "patent pending" when there has been no application from which to infer pending status. In Forest Group, Inc. v Bon Tool Co., No. 2009-1044 (Fed. Cir. Dec. 28, 2009), the court concluded that the term "each offense" meant the $500 penalty could apply "per article". Monetarily raising the stakes quite high is a chilling prospect for defendants but an incentive for qui tam plaintiffs to police against false patent markers. The Forest Group ruling can be found here.
Secondly, 35 U.S.C. § 292(b), covers standing:
"Any person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States. Any plaintiff may address a complaint even if there has been no direct infringement on the part of the plaintiff. "
The qui tam right is therefore a provision within the ambit of 35 U.S.C. § 292 and can be initiated by any private individual who wishes to take action against false patent markers.
Prima facie, this statute seems like it would essentially be the 'scarecrow' against any potential infringers but the requisite of Rule 9(b) makes it difficult for qui tam plaintiffs to argue deceptive intent. Rule 9(b) provides:"In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally."BP Lubricants USA, Inc.: Requisite for Rule 9(b)
In the latest Order by the Federal Circuit Court in re BP Lubricants USA Inc., Fed. Cir. Misc. Docket No. 2010-960, (Linn J) held the requisite under the Federal Rules of Civil Procedure, Rule 9(b) applies to false patent marking claims. The case ended up in the lap of the United States Court of Appeal, Federal Circuit after a petition for writ of mandamus due to the objection of dismissal in Simonian v. BP Lubricants USA, Inc., 1-10-CV-01258 (N.D. Ill-01258)."The complaint also asserts mostly "upon information and belief," that (1) BP knew or should have known that the patent expired; (2) BP is a sophisticated company and has experience applying for, obtaining, and litigating patents and (3) BP marked the CASTROL products with the patent numbers for the purpose of deceiving the public and its competitors into believing that something contained or embodied in the products is covered or protected by the expired patent."After careful consideration of the general allegations and an amicus curiae brief submitted by the Intellectual Property Owners Association, when applying Rule 9(b) there was no deceptive intent found on the part of BP Lubricant. Moreover, following Exergen Corp. v Wal-Mart Stores, Inc., 575 F.3d 1313, 1328 (Fed. Cir. 2009) the IPO argued:"[w]ith intent to deceive the public being an essential element of false marking, the heightened pleading requirements of Fed. R. Civ. P. 9(b) should apply. Mirroring its application of Rule 9(b) to allegations of deceptive intent as an element of inequitable conduct [as in Exergen], so too should the Court require claims of deceptive intent in false marking cases to be pled with specific factual support for allegations of who, what, where, how, and why sufficient to support a reasonable inference that the defendant falsely marked with a conscious desire to deceive the public."
The Federal Circuit Court held:"[p]ermitting a false marking complaint to proceed without meeting the particularity requirement of Rule 9(b) would sanction discovery and adjudication for claims that do little more than speculate that the defendant engaged in more than negligent action."
Justin E. Gray, IP Litigation Attorney at Foley & Lardner LLP and author of Gray on Claims, illustrates in his blog that since the re BP Lubricants judgment on March 15, 2011 -- there has been a significant decrease in claims filed. For more information, Gray on Claims supplies a false marking chart that is updated daily.
Has Uncle Sam turned a blind-eye towards false patent markers by establishing a high threshold for proving deceptive intent? Or has the court applied Rule 9(b) to stop the claim flood-gates due to qui tam right provision in 35 U.S.C. § 292 in conjunction to the monetary incentive post-Forest Group? In any case, even if courts are hesitant to find the requisite intent for liability, alleged infringers still bear the expense of litigation. Therefore it is imperative that companies remove all expired, invalid, inapplicable patent numbers from their products to avoid the inevitable pricey litigation process.
PatLit thanks Michelle for this extremely lucid guidance on a topic that remains beyond the experience and, in some cases, the comprehension, of non-US practitioners.
Pubblicato da Jeremy a 11:59 am No comments:
Etichette: False marking
Tuesday, 5 April 2011
PCC Page 23: IPOff's tentacles get some cross-examination?
CIPA), seeks to explain how litigation works in the recently-revamped Patents County Court (PCC) for England and Wales, taking as its theme a dispute between Cautious Co and IPOff Ltd as to whether IPOff has infringed the IP rights of Cautious in its robotic octopus. In this episode, the 23rd, CIPA President Alasdair Poore reviews the strategic and other advantages of offering to settle the dispute before it goes too far ...
"First I should make an apology. It has been suggested that the PCC pages are intended to create the impression that litigation in the PCC is really rather complicated; that there are many pitfalls waiting to catch the unwary representative. Nothing could be further from the truth – there is absolutely no requirement to develop skills in writing intolerant correspondence or to develop elaborate strategies to trip up the other party. Indeed, doing so is more likely than not to result in sanctions rather than in obtaining a strategic advantage.
This week's PCC provides a welcome chance to add a reminder that there are some circumstances when the costs limit does not apply – CPR 45.41(2)(a) – where the Court considers that a party has behaved in a manner which amounts to an abuse of the court's process. Incidentally, the limit also does not apply under the conditions in CPR 45.41(2)(b), that is where contested validity of the patent has been certified in previous proceedings. In that case, s.65(2) Patents Act 1977 provides that the person relying on validity of the patent as found in earlier proceedings is entitled to costs on a solicitor and own client basis (equivalent to the indemnity basis set out in CPR 44.4(1) -- but there will be more on certificates of contested validity and their impact in due course. Sorry if this sounds like more complication – no, proceedings should really be pretty straightforward, but that would be very boring, and not provide any interesting insights. So now for something on cross examination:
Readers will recall that last week (and after much ruminating and cogitating), Cautious's patent attorney wrote to IPOff's solicitor with a Part 36 offer. IPOff's solicitor has since forwarded this to his somewhat belligerent client, seeking instructions. Not surprisingly, IPOff responds by email in a far from amused and good natured manner:
"Dear X
While you're sipping tea in your cosy little office, I'm losing time and, more importantly money! What am I paying you for? You call that an offer? You can tell Cautious that he's not getting his grubby little tentacles on my money and that I'll fight him till the bitter end!!
I'm just waiting for the trial so that our silk can pin him to the wall."
IPOff's solicitor puts down his cup of tea and takes a moment to reflect on the latest outburst from his client. Like Cautious's patent attorney, he is considering what needs to be agreed at the forthcoming Case Management Conference (CMC). He sees though the fire and brimstone and deliberates over whether Cautious will want to cross-examine his client, and how he should resist it.
As noted previously, in accordance with CPR 63.23(1), the Patents County Court (PCC) will identify the issues and decide whether to make an order in accordance with PD 63 29.1. Only in exceptional circumstances will the PCC consider an application by a party to submit material in addition to that CPR 63.23(1). PD 63 29.1 provides that the Court may order any of the following:
(1) specific disclosure;The PCC will only make an order under paragraph 29.1 (including in relation to cross examination) if:
(2) a product or process description (or a supplementary product or process description where one has already been provided);
(3) experiments;
(4) witness statements;
(5) experts' reports;
(6) cross examination at trial;
(7) written submissions or skeleton arguments.
(1) in relation to specific and identified issues; andDame Vivienne Westwood OBE v Anthony Edward Knight [2010] EWPCC 16 shows how these provisions operate. There Judge Birss QC said:
(2) if the court is satisfied that the benefit of the further material in terms of its value in resolving those issues appears likely to justify the cost of producing and dealing with it (PD 63 29.2)
"These interlocking provisions represent a radical departure from previous English civil procedure, at least as it is practiced in the courts handling intellectual property claims. The provisions are a key element of the new procedure and its purpose in making intellectual property cases less expensive and quicker to resolve. The parties do not have a free rein to call any evidence they want on any topic. The court will control the procedure. Further material will only be permitted on identified points and only if it satisfies the cost benefit test in paragraph 29.2(2). If material has not been permitted in this way, CPR Pt 63.23(2) sets a significant hurdle in the way of its introduction into the case. It seems to me that one important consequence of the provisions is that, subject to proper safeguards, some relevant evidence will be excluded from trials. Merely because some evidence is relevant will not necessarily justify permission being given to adduce it. On the other hand the parties need to know that the court will give permission for evidence to be filed in a proper case since otherwise there will be a temptation to overload the statements of case with unnecessary material."In the form of order in that case, the PCC did not grant the parties permission to cross-examine witnesses at trial, because neither side sought an order for cross-examination. However, at trial issues arose which could have benefited from cross-examining witnesses (see the earlier decision in Dame Vivienne Westwood OBE v Anthony Edward Knight [2011] EWPCC 008)
When the claimant alleged that the defendant had deliberately mislead customers into thinking that they were buying genuine Vivienne Westwood goods rather than Mr Knight's goods i.e. allegations of fraud and deliberate deception, the submissions were based on materials submitted to the court rather than cross-examination of Mr Knight. However, these inferences could also be explained by the defendant. Judge Birss QC said that to "address these issues properly would involve, amongst other things, embarking on an analysis of Mr Knight's intentions…" and that to make a finding about Mr Knight's state of mind without cross-examination "would not be fair" and duly declined to do so.
Likewise, in his submissions, Mr Knight made allegations that documents exhibited in the documents exhibited to the witness statement of the claimant's main witness were fabricated. Judge Birss QC made it clear that if any of the evidence was untruthful, the defendant could and should have applied to cross-examine the witness.
The PCC's approach to applications to cross-examine witnesses is thus summarised in the following words from the judge:
"The procedural scheme is more restrictive in dealing with such applications but in a proper case they can be made. An application on proper grounds could have been considered before trial and dealt with"So IPOff's solicitor concludes that it is unlikely that the PCC will reject an application to cross-examine, if IPOff continues to assert independent development. However, he will make the application anyway, as well as an application for experiments to demonstrate that Cautious's software does not work – and of course his application to transfer the whole proceedings to the Patents Court. He picks up the phone to call Cautious's patent attorney with a view to discussing the proposed order".
Pubblicato da Jeremy a 10:08 pm No comments:
Monday, 4 April 2011
Claim construction thesaurus
"Claim construction is a major phase of a patent litigation where the meaning and scope of the claims themselves - the invention - is determined by the court. The outcome of this definition phase is crucial to the respective infringement and invalidity positions of the parties. The Thesaurus of Claim Construction directs practitioners to cases -- and in contrast to searches on more general electronic databases, only those cases -- in which claim terms have previously been construed, and further to the sources of the evidence used by previous courts to construe the terms in dispute".PatLit hopes to get a review copy in due course.
Bibliographic details: ISBN13: 9780199737116, ISBN10: 0199737118. Paperback, 1,040 pages. Price: $295. Web page here.
Pubblicato da Jeremy a 8:51 am No comments:
Etichette: book notice
Friday, 1 April 2011
Swiss claims may be gone, but Swiss patent litigation has just got modern
JIPITEC (the Journal of Intellectual Property, Information Technology and E-Commerce Law). You can read in full here, and also via SSRN here. According to the abstract,
" Switzerland is about to implement a completely new patent litigation system, following the establishment of a new specialized federal patent trial court and the replacement of twenty-six cantonal codes of civil procedure with a single uniform federal code of civil procedure. This article provides an overview of the general structure and the most important features of the new patent litigation system that may be of interest to international patent litigants and litigators."The author is Professor Cyrill Rigamonti (Universität Bern, Institut für Wirtschaftsrecht), who is plainly a true IP enthusiast. PatLit looks forward to seeing more of his work in the future.
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Naughty and nice! Christina Aguilera is among the honorees in this year's Time 100 list of Most Influential People in the World — and celebrated at the magazine's annual, star-studded NYC gala with another memorable look.
Showcasing the slimmer frame she debuted last month, the "Your Body" singer, 32, wore a daring Victoria Beckham dress with keyhole cut-out that emphasized her famous cleavage, Christian Louboutin shoes and Lorraine Schwartz jewels. The former Voice mentor and single mom kept her beauty look fairly simple, with her blonde locks in a side-swept, Veronica Lake-style waves and classic red lips.
For her Time 100 honor, Aguilera was praised by another legendary, big-voiced chanteuse — Celine Dion — in a short essay in the magazine.
"The first time I heard Christina Aguilera sing, I was totally blown away. I love the way she sings. Her tone is beautiful, and her voice has got so much power, yet so much sensitivity — and technically, I think, she's flawless," Dion, 45, raved. "Without a doubt, she's one of the most talented artists the world has ever seen and heard, and I think she's going to continue to amaze us for many, many years to come."
"I'm very honored to be part of the #TIME100 list and for the wonderful words from Celine Dion," Aguilera tweeted. "Thank you! XoXtina"


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Windows Touch Profiles for screen 1366x768
Touch profiles for Windows 8 multi-touch games. Attention: The Orientation field depends on the orientation of your device relative to the landscape default orientation.
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Code Of Honor Summary and Analysis
FreeBookNotes found 1 site with book summaries or analysis of Code Of Honor. If there is a Code Of Honor SparkNotes, Shmoop guide, or Cliff Notes, you can find a link to each study guide below.
Among the summaries and analysis available for Code Of Honor, there is 1 Short Summary.
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Pink Tassel Earclips
Pink Tassel Earclips
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- Brand: Marcuse
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text: We present you the newest version of Fire and Water. In this chapter, our heroes are in a temple and trying to reach exit doors by overcoming obstacles which are created specially. You'll live action with full of mirrors in some chapters and you'll sometimes be in dark rooms. After game has been loaded click "Play" button and wait for a while during the ads. Click "Play" button again from game menu and choose first chapter from the map. You'll also have a chance to choose other chapters after you complete each one. You can also continue from your last position whenever you want. The objective of the game is same with others; you'll make collaboration with your partner and try to reach exit points together. Control our heroes with "Arrow Keys" and "W,A,D" keys. Don't come closer to water accumulation only, also care on other obstacles meticulously. It's time to show how good double you're again. Twoplayergames.org hopes you good luck.


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|This article does not cite its references or sources. You can help WikiFur by adding references.
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Feila is a furry forum that focuses mainly on role-playing. The services available at Feila include a gallery for artwork and literature, a collection of play-by-post role-playing boards, an area for contests and games, and a board that supports a broad range of general topics for discussion.
- Address: http://www.feila.org
- Ran from/to: March 14, 2006 - present
- Administrators: RabidFox
The Feila forum was founded on March 14, 2006 by the head administrator, RabidFox. In the beginning, the forum only had a general section and eight role-playing areas. The APP was not introduced until March 28, 2006. The Arctic Islands, the ninth role-playing area of the forum, was not added until December 03, 2006, and while it was originally created by Zeru, JamesG has made many contributions to the area. Another part of Feila that was not in the original design is the Dimensional Break. The Dimensional Break was added later in response to the userbase's desire to be able to role-play in non-medieval-esque time periods.
"APP" is an abbreviation for "Aros Protection Program". The APP focused on the mysterious cacomistle known as Aros, a character created and role-played by Zeru. Potential APP members scoured the forum in search of clues to Aros' secret past, participating in an optional seek-and-find game called the Quest for Aros, and then sent their findings to RabidFox. Members who provided valid information were allowed to join the APP, and became official guardians of Aros. This responsibility included reporting any information about Aros that had been leaked onto the public forums without permission. The APP was officially closed on August the 3rd, 2010.
There was one official contest with Aros as the theme, and the winner of that contest was given access to the APP without having to complete the Quest for Aros.
Dimensional Break[edit]
While Feila is primarily set in a medieval-esque setting, on March 10, 2007, a board called the Dimensional Break became available for role-playing. This board accommodates different time periods of Feila, including a futuristic age known as the Age of Cyborgs, a modern age that is similar to 21st century Earth, an age catering to a Victorian-esque era, an age that resembles Earth's 18th century, a space age, and a Roman-type period.
There has been discussion of adding more ages, such as a prehistoric era. The staff are always open to the userbase for new ideas on additional time periods for role-playing, and encourage user feedback concerning the forum's development.
On Oct 15, 2009, a section called the Twilight Zone was added to the Dimensional Break. The Twilight Zone is for non-canon Feila and non-Feila role-playing. Thus it offers a venue to experience all time and all settings. Only original, user-created settings are allowed to be role-played in the Twilight Zone other than the setting of Feila. No fan fiction is permitted in this section that doesn't pertain to Feila. In the Twilight Zone, all races are allowed, including humans. The section is named after the original 1950's - 1960's American television series of the same name, due to the tendency of the TV episodes to bend reality in strange ways.
The official mascot of Feila is a tan bunny/bat hybrid named Vanir, who was created by Zeru on January 03, 2007. While he is not widely seen throughout the forum or used in many projects, Vanir can be frequently found at WikiFeila as an automated helper. There are plans to make Vanir a more integral part of Feila's role-playing setting and the forum in the future.


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CeBIT 2010
Check here often for our daily CeBIT coverage. CeBIT 2010 runs from March 2-6 in Hanover, Germany. Jason "Fujitsu" Schneider, and Benjamin "Zeus" Heide will be bringing you daily coverage of this event starting early on March 2nd. Check back here for daily coverage. It will be a good time and we'll keep you all informed of the latest electronics, software and emerging technology!


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Public land, locked up
In the Rocky Mountain West, more than 4 million acres of federal public land are rendered off-limits because there's no way for the public to access them.
In the Rocky Mountain West, more than 4 million acres of federal public land are effectively off-limits – simply because there's no legal way to access them. The nonpartisan Center for Western Priorities, a Denver-based think tank, recently used GIS mapping to quantify such "shuttered" public lands, mostly managed by the U.S. Forest Service and Bureau of Land Management.
Western lands have long had a patchwork of owners: federal, state, local, tribal and private. In the late 1800s, the federal government gave railroad companies every other square mile along rail corridors, creating a public-private checkerboard. But because it's illegal to even step across a corner from one public parcel to another, many remain inaccessible. Others are marooned in a sea of private property with no right of way. Some landowners even illegally close public roads across their holdings.
Congress has tried to tackle these problems, but 2011's "Making Public Lands Public Act" failed to pass. The HUNT Act, introduced in September, would improve hunting and recreation access. One crucial source for buying easements and other private land is the Land and Water Conservation Fund – but Congress usually gives it considerably less than half of the $900 million in energy royalties it's allocated.


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2012 Porsche 911
The Porsche 911 is all-new for 2012, a new-generation version completely redesigned from the ground up. Now starting its seventh generation, the new 911 maintains all the familiar styling cues fans expect, but the 2012 Porsche 911 Carrera S we drove was delightfully, almost subversively different from the outgoing version.
It's easy to recognize the classic Porsche profile, with the long, sloping snout, the flyline roof and tapered rear, but the 2012 911 is longer, lower, and wider than before. It's also lighter. This is a case of Darwinian evolution at work, after all, and odds are, if the new Carrera comes up in your rearview mirror you better slip to the side. You're just prey.
As is the norm with Porsche, the maker plans to steadily roll out a variety of variants of the 911, from the base Carrera to the Cabriolets up to an eventual GT3.
For 2012, the Porsche 911 is available in two versions, Carrera and Carrera S.
The Carrera features a 3.4-liter flat-six engine punching out 350 horsepower, a 5 hp increase for the 2012 model. Its 0 to 60 times have dropped 0.2 seconds, to 4.4 seconds, according to Porsche. The Carrera S goes with a larger, 3.8-liter flat-six making 400 hp and 325 lb-ft of torque, with launch times to 60 mph of 4.1 seconds and a top speed of 189 mph.
2012 Carrera and Carrera S coupes are on sale now, and will be followed by 2012 Carrera Cabriolet and Carrera S Cabriolet models. Sales of the Cabriolet are expected to begin in late April or early May 2012.
The Carrera cabriolet gets a new soft top that can be raised or lowered in just 13 seconds and at speeds of up to 31 mph.
Our first drive opportunity landed us in the driver's seat of the 911 Carrera S, the model we expect most Porsche 911 buyers to choose. The Carrera S features a slightly larger engine, at 3.8 liters, making a sizable 400 horsepower and 325 pound-feet of torque. More amazing is the fact that it can come within a tenth of a second, at 4.1 seconds, of matching the 0 to 60 times of the old 911 GT3.
Of course, if straight-line acceleration were all one wanted there are plenty of muscle cars and rice rockets that can deliver neck-snapping acceleration, and at a fraction of the 911's stiff price tag. But Porsche is all about the overall driving experience, and perhaps nothing personifies that better than the 911 Carrera S.
The new 911 feels familiar, but it just does things that much better. Much of this is thanks to the integration of new technologies such as the electro-hydraulic power steering system and the Porsche Dynamic Chassis Control active roll stabilization system. Porsche claims the PDCC technology enhances cornering performance by keeping the tires in their optimal position at all times while minimizing body roll. There's also the fact that despite the longer, wider body, Porsche engineers have managed to shave about 100 pounds off the weight of the 2012 911 Carrera S, which tilts the scales at 3,113 pounds when equipped with the PDK gearbox.
Speaking of transmissions, the new 911 introduces an industry first 7-speed manual. Yet the PDK double-clutch is so quick and smooth we might be tempted to speak heresy and suggest the PDK is actually the preferable choice.
While the lower weight clearly enhances the overall performance of the new 911 it's also a factor in fuel economy, and here's where the Carrera S delivers another pleasant surprise, the 2012 remake boosting mileage by as much as 16 percent. The outgoing base Carrera, for example, delivered an EPA-estimated 18 mpg City/29 Highway, the Carrera S 19/26 mpg. The more powerful 2012 Porsche 911 Carrera S bumps that up to 20/27 mpg. The new one is both faster and more fuel efficient.
Also enhancing mileage: the new 911 gets Auto Stop/Start, technology that briefly shuts off the engine rather than idling, say, at a stoplight. The powertrain instantly fires back up when the driver's foot lifts off the brake.
Despite the added power and even more aggressive handling, the 2012 Porsche 911 Carrera S is a markedly more refined machine. The interior has the lavish appointments you'd expect in a high-line sedan, with such niceties as the new 18-way power driver's seat. That'll keep you firmly in place during the hardest cornering, but it's also comfortable enough to be an everyday driver. Perhaps. Just recognize you'll be facing temptation every time you hit the Start button.
Model Lineup
The 2012 Porsche 911 is available in coupe and convertible versions, each in Carrera and Carrera S tune.
The Carrera ($82,100) features a 3.4-liter flat-six engine punching out 350 horsepower. The Carrera S ($96,400) goes with a larger 3.8-liter flat-six making 400 hp.
Perhaps the biggest challenge for Porsche chief designer Michael Mauer and his team was finding a way to give the 2012 911 line a fresh look while maintaining its iconic shape. There's little doubt you'll immediately recognize the look of the seventh-generation model while also realizing how much it has subtly changes.
A closer look, and a handy tape measure, will reveal that the 2012 reincarnation's wheelbase is stretched about four inches, the overall length by two. The new Porsche 911 has a slightly lower roof and a wider track. It also has bigger wheels, something designers are always looking for.
The 911's timeless headlamps are carried over, of course, but have a bit more of a 3-dimensional look, in keeping with a body that is more sculpted than before. The sheet metal has a more precise and taught feel, with a cabin that has moved ever so slightly forward. The overall appearance is one that is more dynamic, refined yet aggressive.
Even the base 911 Carrera now gets a pop-up, or active, wing. It's part of a new handling package that can include the Porsche Dynamic Chassis Control (PDCC) active roll stabilization system.
The new 911 may be bigger but it's shed a surprising amount of weight thanks to the increased use of aluminum and other lightweight materials. Curb weight totals 3,113 pounds with the PDK (double-clutch) gearbox, about 100 pounds less than the old model, internally known as the 997. That's no mean feat considering all the other new technologies stuffed inside the 2012 Porsche 911, internally known as 991.
Interior Features
Sports cars have traditionally put their emphasis on what's under the hood, not in the cabin, but recent generations of the Porsche 911 have focused more attention on the interior. The 2012 remake delivers the sort of refined and luxurious feel you'd expect from a luxury sedan in a similar price range.
New 14-way power sports seats are comfortable and enveloping, able to keep you in place even during the harshest cornering maneuvers. And unlike some, you can climb in and out with relative ease. As for the rear, well, the new 911 remains the classic 2+2 and the back seats are best suited to small children and light packages.
The overall appearance of the interior is one of Teutonic efficiency. The detailing is handsome and elegant but avoids the sort of gold-chain bling you expect from Ferrari and Lamborghini. There was a clear emphasis on improved ergonomics and that does mean some handsome additions on the technology front, with well-placed controls and easy-to-read gauges, a larger LCD navigation screen and a Panamera-derived center console that places key vehicle functions within easy reach. The 911 is smaller and less overloaded with toggles and switches than the four-door, thankfully.
There's a much better layout to the five-circle gauge cluster visible through the steering wheel. One of those is a multi-function LCD screen that can offer up a range of programmable information, including the most immediate navigation instructions or an active G-meter that instantly shows how hard you're accelerating, braking or turning. At one point, during a run down the test track it nudged an astounding 1.3 g.
Driving Impressions
Porsche has made much of introducing the first 7-speed manual gearbox, so we split the day between the stick and the 7-speed PDK: Porsche Doppelkupplungsgetriebe, or double-clutch. While the manual gearbox is clearly going to be near and dear to the hearts of those who feel there must be three pedals on the floor of a true sports car, we wouldn't be surprised to see the PDK start to raise doubts among those even slightly less committed.
The purists might question their own judgment when they realize the double-clutch is just a wee bit faster, and just as much fun to operate when you turn to the steering wheel-mounted paddle shifters, which pair especially well with the optional sport wheel.
The 911 has always been quick, even in base form. And with the Carrera S now rivaling the acceleration of the old GT3 it'll sink you even deeper into the sport driver's seat when you use Launch Control. Available only on the PDK edition, the system is designed to minimize wheel spin and maximize torque for the fastest off-the-line acceleration: press the button, hold down the brake, press the throttle to the floor and wait 'til it tells you to go. Releasing the brake, we noticed the way our peripheral vision seemed to vanish as our eyes focused on the barrier at the end of the temporary track Porsche set up for testing at California's Santa Maria Airport.
We hit 112 mph before slamming on the oversized brakes, quickly bringing us to a halt well before the looming barrier. Goosing the throttle again, we zigged and zagged through a serpentine course that included decreasing radius corners and a tight slalom stretch.
Straight line performance is impressive but what really matters is how the Carrera S effortlessly maneuvers through more demanding circumstances. It certainly impresses to know that it managed a 7:40 lap time on the grueling Nurburgring Nordscliefe, a full 16 seconds faster than the outgoing, sixth-generation Porsche 911.
Having the track available for the media was a smart move considering that even the tightest on-road driving we experienced offered little challenge to the 2012 Porsche 911 Carrera S. The biggest trial was keeping the car down even somewhat close to the speed limit, as one of our normally more demure colleagues discovered when the arresting officer noted her 94 mph speed in a 65 zone.
Most drivers will likely also be impressed with how much quieter and smoother the new 911 is on regular roads. But not all. We did hear complaints from a few of the collected media hordes that the new model was somehow too easy to drive. That was similar to what many said, a decade-some back, when an earlier 911 redesign switched to a water-cooled engine and re-engineered the suspension to reduce the chances of having the front and rear ends trade places when the car was overcooked in a corner.
If any current concern holds water it's that Porsche has almost numbed out the steering. To our mind, and hands, that's overstating the case. Yes, it's smoother and less likely to pass on the raw sensation of hitting every twig and pebble on the road. But unlike all too many of the new electric power steering systems that makers are fast migrating to, the electro-hydraulic system on the 2012 Porsche 911 continues to keep you in touch more than enough to let you know precisely what the car is doing.
One does have to get used to what the car is telling you, however, especially due to the much more limited amount of body roll allowed by the Dynamic Chassis Control system. But, again, there's still enough that it only took a few minutes, and a couple hard turns, to feel confident, comfortable and in touch with what the new 911 was doing.
Few products better define their genre than the Porsche 911. Sure, if you've got an extra $100,000 or so you might find something faster, even something that can nudge an extra second or so or your lap times. But for the money, it's going to be difficult to find anything that comes close to the breathtaking performance and pure driving pleasure of the all-new 911 Carrera S. Any concerns we had about how the maker might improve upon the outgoing model have been quelled by the time we spent behind the wheel. Porsche planners are gleefully anticipating a big jump in sales this year and we clearly understand why.
Paul Eisenstein filed this NewCarTestDrive.com report after his test drive of the 911 Carrera S in Southern California.
|Model Line Overview
|Model lineup:
|Porsche 911 Carrera ($82,100), Carrera S ($96,400); Carrera Cabriolet, Carrera S Cabriolet
|350-hp 3.4-liter horizontally opposed-6; 400-hp 3.8-liter horizontally opposed-6
|7-speed manual; 7-speed automatic PDK with paddle-shifters
|Safety equipment (standard):
|6 airbags; Porsche Stability Management with ABS, EBD, Traction Control, Electronic Stability Control, ASR, EDTC, ABD; front-belt pre-tensioners and force limiters; tire pressure monitoring system
|Safety equipment (optional):
|Basic warranty:
|4 years/50,000 miles
|Assembled in:
|Specifications As Tested
|Model tested (MSPR):
|Porsche 911 Carrera S ($96,400)
|Standard equipment:
|leather seats with Alcantara inserts, two-zone automatic climate control, three-spoke leather-wrapped wheel with power tilt/telescope, AM/FM/CD/MP3 235-watt, 9-speaker audio system with iPod audio, navigation with LCD, Bluetooth hands-free phone, remote entry alarm, 18-way power seats
|Options as tested (MSPR):
|PDK transmission ($4,080); upgraded black leather interior ($3,300); Sports exhaust ($2,950); self-dimming mirrors ($420); seat heaters ($690); Porsche Dynamic Chassis Control ($3,160); Porsche crest wheel caps ($185); seat ventilation ($840); Porsche Dynamic Light System ($770); Light Design Package ($510); Park Assist, front and rear ($990); Sport Chrono Package ($2,370); power sunroof ($1,490); power steering plus ($270); Bose Surround System ($1,590); Sirius XM, HD radio ( $1,120); electric folding side mirrors ($320); sport steering wheel ($490)
|Destination charge:
|Gas guzzler tax:
|Price as tested (MSPR):
|rear-engine, rear-wheel drive
|3.8-liter horizontally opposed-6
|Horsepower (lb.-ft @ rpm):
|400 @ 7400
|Torque (lb.-ft @ rpm):
|325 @ 5600
|7-speed automatic DPK
|EPA fuel economy, city/hwy:
|20/27 mpg
|96.5 in.
|176.8/71.2/51.0 in.
|Track, f/r:
|60.6/59.7 in.
|Turning circle:
|36.3 ft.
|Seating Capacity:
|Head/hip/leg room, f:
|Head/hip/leg room, m:
|Head/hip/leg room, r:
|Cargo volume:
|4.8 cu. ft.
|Towing capacity:
|Suspension, f:
|independent, MacPherson struts, coil springs, monotube dampers, active stabilizer bar
|Suspension, r:
|independent, multilink, coil springs, monotube dampers, active stabilizer bar
|Ground clearance:
|Curb weigth:
|3277 lbs.
|245/35ZR20 (front), 295/30ZR20 (rear)
|Brakes, f/r:
|ventilated cross-drilled cast-iron discs with 6-piston calipers/ventilated cross-drilled cast-iron discs with 4-piston calipers
|Fuel capacity:
|16.9 gal.
|Unless otherwise indicated, specifications refer to test vehicle. All prices are manufacturer's suggested retail prices (MSPR) effective as of March 19, 2012.Prices do not include manufacturer's destination and delivery charges. N/A: Information not available or not applicable. Manufacturer Info Sources: 800-PORSCHE - www.porsche.com
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