Dr. Martin Schaefer comments in GRUR on the ECJ ruling: Compensation obligation for stored private copies of protected works in the cloud – Austro-Mechana/Strato

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In GRUR issue 8/2022, 558 of April 15, 2022, BOEHMERT & BOEHMERT partner and attorney at law Dr. Martin Schaefer comments on a decision of the European Court of Justice of March 24, 2022 – C-433/20 (Austro-Mechana/Strato) on the mandatory statutory remuneration for private copies of protected works stored in the cloud. 

The background is the legal dispute between GEMA´s Austrian sister organisation, Austro-Mechana, and Strato AG, a German provider of cloud services. The Vienna Higher Regional Court had submitted a request for a preliminary ruling to the European Court of Justice, concerning two questions relating to Art. 5 II lit. b InfoSoc Directive (2001/29). 

In his note to the ECJ judgement in GRUR 2022, 558, Dr. Martin Schaefer comments on the argumentation, employed by the ECJ, followed by conclusions presenting ideas for new ways to deal with the situation created by the CJEU´s ruling. 

Users of GRUR can download the commentary by Dr. Martin Schaefer here.

Dr. Ute Kilger writes about the “Digitalisation of Medicine” in the trade magazine Plattform Life Sciences

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The digitalisation of medicine – a challenge also for patenting 

Artificial intelligence, augmented reality, robotics, machine learning and big data are the trends and challenges of our time and will also revolutionise our healthcare system.
But how can innovations in these technical fields be protected? What needs to be considered when patenting software-based processes? After all, therapeutic and diagnostic procedures on the human body as well as software are generally excluded from patentability in Europe.

BOEHMERT & BOEHMERT partner and patent attorney Dr. Ute Kilger deals with these questions in her article “Digitalisation of Medicine” in the March 2022 issue of the trade journal Plattform Life Sciences.
In this article, Dr. Kilger appeals to take these new challenges into consideration when drafting a patent application and summarises that corresponding technical expertise with regard to software, medical devices and life sciences will be indispensable in the future.

The article by Dr. Ute Kilger on page 44 of the journal is available online in German here.

“General Court overrules previous instance: No likelihood of confusion between CODY’S and CODE-X for marks in beverages sector” – Article by Dr. Florian Schwab in WTR

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On the online portal of the trade journal World Trademark Review (WTR), BOEHMERT & BOEHMERT partner Dr. Florian Schwab discusses a recent trademark law decision of the General Court in (T-198/21) Ancor Group GmbH v. European Union Intellectual Property Office (EUIPO) of February 23, 2022. 

The court set aside the decision of the Board of Appeal of the EUIPO and – upholding the decision of the Opposition Division – finally rejected the opposition based on the word and figurative marks CODY’S against the word mark CODE-X (essentially each claiming beverages in class 42 of the Nice classification). 

In contrast to the Board of Appeal, the European judges found no likelihood of confusion between the marks. They based their decision primarily on the fact that CODY’S and CODE-X are visually and phonetically similar, at most, to an average degree. The hyphen creates a syllabic and visual break, which does not apply to the apostrophe. For goods in the beverage sector, it cannot be assumed that they are primarily ordered orally (for example in a busy and noisy bar where phonetic differences may not be clearly perceived) and, thus, the phonetic comparison is not per se primarily relevant. 

In Dr. Schwab’s opinion, the result reached by the court is convincing. It is worth noting that the overruling of the Board of Appeal is more the exception than the rule in EU trademark matters. 

The full article in English is available online for registered users of WTR here!

Dr. Dennis Kretschmann and Dr. Michael Rüberg on the European Unitary Patent in legaleraonline.com

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After almost 50 years of preparation, the European Unitary Patent could come into force in the close future. Optimistic voices assume an implementation in 2023 or already at the end of 2022.

But what do patent owners and managers of patent portfolios need to consider in advance? Will the future European Unitary Patent System only affect newly granted patents or also existing European (bundle) patents? Can patents invalidated in some European countries be maintained in other European countries? And are opt-out options available?

Patent attorney Dr. Dennis Kretschmann and attorney at law Dr. Michael Rüberg answer these and other questions in their article on the website of the Indian trade magazine Legal Era. In addition, they recommend that all patent owners and managers carefully review the patent portfolios of their companies in Europe and advise prompt strategic consideration of how best to benefit from the new system and which patents should be submitted for registration and which should not.
A short description of the historical development of the European Unitary Patent and the challenges on the way to its realization complete this informative article.

The article “The European Unitary Patent System is finally back on track and is now scheduled to arrive mid/end 2022 already” appeared on https://www.legaleraonline.com on December 20, 2021.

Dr. Dennis Kretschmann on the European unitary patent and the reform of the German patent law in the magazine “The Patent Lawyer” and on the website of the “4iP Council”

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After decades of effort, the European unitary patent seems to be on the home straight. The purpose of the project, which was already envisaged in the 1970s, is to be able to enforce patents before a Unified Patent Court (UPC) with effect for all participating EU member states. After significant delays due to Brexit and constitutional complaints filed against the German ratification, the preparations have recently resumed, and the unitary patent system is currently expect to swing into action in late 2022 or early 2023. In parallel, Germany is currently revising its national patent litigation system and provides for a proportionality test for injunctive relief and an improved interplay between the infringement proceedings and the nullity proceedings.

BOEHMERT & BOEHMERT partner and patent attorney Dr. Dennis Kretschmann devotes his detailed article “Recent German Court Decisions and Legislation shape the future of Patent Litigation” to these two trend-setting topics in the current issue of the professional journal “The Patent Lawyer” as well as on the website of the European Research Council “4iP Council”.

The article is published in English on page 71 of the September / October 2021 issue of the journal The Patent Lawyer and is available as a PDF here. Visitors to the 4iP Council website can download the article here.

“Patents in Engine Development” – Contribution by Dr. Giulio Schober at the 3rd Freiberg Colloquium on “Electric Drive Technology”

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What industrial property rights are there? How do you apply for a patent and what protection does it provide? BOEHMERT & BOEHMERT patent engineer Dr. Giulio Schober answers these questions in his contribution “Patents in Engine Development” to the 3rd Freiberg Colloquium “Electric Drive Technology”. 

The article begins with a brief overview of the patent as a technical property right and its differentiation from other industrial property rights such as utility models, trademarks and designs. It further outlines some strategies for filing and utilizing patents, especially for start-ups. Finally, the basic structure of a patent application is explained on the basis of the historically important patent “Anker für Wechselstrommotoren” (armature for alternating current motors), which deals with the three-phase asynchronous motor with squirrel-cage rotor. 

Dr. Schober’s article was published in the conference proceedings of the 3rd Freiberg Colloquium on “Electric Drive Technology” at the Technical University Bergakademie Freiberg and is available online in German here.

New Article by Prof. Dr. Heinz Goddar on “Dependent Patents in SE Asia” in Les Nouvelles

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In his article “The Fate Of Dependent Patents In Cambodia, Laos, Myanmar, Thailand, And Vietnam – A Comparison With The Situation In Germany And India”, BOEHMERT & BOEHMERT partner and patent attorney Prof. Dr. Goddar and co-author Chandavya Ing. look at the legislation and practice regarding dependent patents in the countries of Cambodia, Laos, Myanmar and Vietnam, including a comparative view of the situation in Germany and India.

According to the authors, a compulsory licensing system exists in most Southeast Asian countries, but compulsory licences are rarely issued there, and when they are, it is in connection with the patenting of pharmaceuticals.

As a result of this practice, Prof. Dr. Goddar and Chandavya Ing. see a hindrance in the development of new innovative technologies. With a view to preserving the balance between the rights of the right holder of the earlier patent and the rights of subsequent users, the authors recommend an increased use of compulsory licensing to encourage inventions as well as to enable technology transfer for the economic benefit of all.

The article by Prof. Dr. Goddar and Chandavya Ing. appeared in the September 2021 issue of Les Nouvelles on pages 250 to 254 and is available to registered users here.

“Company invention – and now?” New article by Prof. Dr. Goddar in the trade magazine Arbeitsrecht im Betrieb

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It is not uncommon for employees to develop ideas or innovations in the course of their work which increase the efficiency of operational procedures or improve products manufactured in the company. Such inventions in the workplace must be reported to the employer. 

But what does a proper invention disclosure to the employer look like? What requirements should an employee invention fulfil in order to be filed for a patent? And what remuneration is appropriate for an employee invention? 

BOEHMERT & BOEHMERT partner and patent attorney Prof. Dr. Heinz Goddar answers these questions in his detailed article “Company invention – and now?”, published in the trade magazine “Arbeitsrecht im Betrieb” (Labour Law at Work), issue 9/2021. 

Registered subscribers to “Arbeitsrecht im Betrieb” can download the article, which is supplemented with many tips and links, here.

Dr. Jan B. Krauß as co-author of scientific article on therapy of skin disease Epidermolysis bullosa junctionalis

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In the context of his work at the University of Salzburg, BOEHMERT & BOEHMERT patent attorney Dr. Jan B. Krauß has published an article as co-author on the topic “Drug Development for Target Ribosomal Protein rpL35/uL29 for Repair of LAMB3R635X in Rare Skin Disease Epidermolysis Bullosa”.

In the scientific paper, atazanavir and artesunate are identified as candidate compounds that bind to the ribosomal protein rpL35. The compounds are currently being tested for their potential to trigger a rpL35 ribosomal switch to increase the production of full-length Lamb3 protein from a LAMB3PTC mRNA. This serves as a targeted systemic therapy in treating the rare genetic blistering skin disorder severe junctional epidermolysis bullosa.

Dr. Krauß published the article together with A. Rathner, P. Rathner, A. Friedrich, M. Wießner, CM. Kitzler, J. Schernthaner, T. Karl, F. Lottspeich, W. Mewes, H. Hintner, JW. Bauer, M. Breitenbach, N. Müller, H. Breitenbach-Koller and J. von Hagen.
It may be read in the July 2021 issue, Vol. 34, No. 4, of the scientific journal “Skin Pharmacology and Physiology” published by S. Karger AG and can be purchased here.

“Why Metadata Matters for the Future of Copyright” – Dr. Martin Schaefer in the journal European Intellectual Property Review

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Metadata is essential in the copyright industry of the 21st century to keep the engine of copyright running smoothly and powerfully for the benefit of creators, users and the copyright industry as a whole. But metadata is difficult to acquire and even difficult to keep up to date, as content rights are mostly multi-layered, fragmented, international and moreover volatile. 

BOEHMERT & BOEHMERT partner and lawyer Dr. Martin Schaefer deals with a solution approach for this challenge in his article “Why Metadata Matters for the Future of Copyright”, which appeared in the 08/2021 issue of the “European Intellectual Property Review” (E.I.P.R.). Together with co-author Prof. Dr. Norbert Gronau from the University of Potsdam, Dr. Schaefer develops the idea of a neutral tool for searching and improving metadata that could serve as a buffer to protect the interests of proprietary database owners and avoid the shortcomings of centralised databases. 

In light of various EU efforts, the authors conclude in their paper that it is time to take the concept of a “metadata search and enhancement tool” to a new level. And this is not only for the music industry, as the entire copyright sector could benefit from such approach. Large international public organisations – such as those under the roof of the EU – would be predestined for implementation.

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