External Events 2004 - 2005

ATRIP (Association of Teachers and Researchers in Intellectual Property), University of Montreal: 11th - 13th July

Professor Bently and Dr. Davis both attended and gave papers at the annual ATRIP conference, the theme of which was Bridging Aesthetics and Economics. The conference comprised four panels, one of the protection of artistic works, the second on financing intellectual property, the third on language and intellectual property, and the fourt on new dynamics in international intellectual property. Dr Davis spoke about the valuation of trade marks, importantly pointing to difficulties accountants seemed to face in differentiating between trade marks and brands and articulating their inter-relation. This observation prompted a lots of comment from the audience, particularly those with civilian backgrounds, where there appears to be no linguistic tradition of drawing any distinction between trade marks as such, and brands (understood as a broad array of characterics, but usually including the name or visual devices associated with products or services). Professor Bently’s paper, Copyright, Translations and Relations Between Britain and India, 1880-1914 examined the history of the translation right in copyright. Focussing on the political, economic and social background to the recognition of such a right in India, the paper sought to highlight the (perhaps hitherto neglected) importance of control of translation as equivalent to a collective ‘access right’. The paper also sought to untangle the complex bureaucratic and judicial mechanisms through which the desire of British publishers for a translation right in India was mediated, and thus to question whether contemporary mechanisms for internationalisation of intellectual property law are even less capable of acknowledging diverse local needs than those of British imperialism.

Hinxton Genome Campus, Cambridge: 6th - 8th July

Kathy Liddell and colleagues from the Faculty of Social and Political Science (Oonagh Corrigan and Martin Richards) and the Clinical School, University of Hull (John McMillan) convened a workshop on informed consent. Entitled ‘Consent and Beyond’ the workshop brought together scholars from different disciplines and countries (England, Scotland, Canada and Australia), to discuss the limitations and problems surrounding the current status of informed consent in medical research. Despite having to contend with the London bombings on 7 July, the workshop was a success, and the papers are being edited as a book.

Vienna Initiative to Save European Academic Research (VISEAR): 30th May

Kathy Liddell acted as rapporteur for a meeting of VISEAR co-ordinated by the University of Vienna, the Vienna School of Clinical Research and the Office of the Ethics Committee. The meeting included representatives from a broad range of research and Member States. A report on the implications of the Clinical Trials Directive for research involving incapacitated adults was submitted in August 2005. A wider ranging report will be published later in the year.

University of Leuven, Belgium: 27th May

Kathy Liddell attended an international conference on Gene Patents and Public Health. Papers at this meeting addressed patents over diagnostic methods and patent pools. After the conference, Kathy convened a meeting  between CIPIL, the Cambridge Genetics Knowledge Park and the Oxford Genetics Knowledge Park to discuss  patent due diligence in sudden cardiac death and patents over microarray technology.

Meeting of the Wittem Group, in Leiden:  15th -16th April

Lionel Bently attended the meeting of the Wittem Group held in Leiden. The Drafting Committee considered the question of when copyright should be recognised, in particular focusing of the definition of the domain of copyright, and the originality standard. The Advisory Committee considered the appropriate terminology, structure and content of the ‘economic rights’ which copyright comprises.

University of Cambridge, Deposition in Golan v. Gonzales: 8th April

Lionel Bently, who had earlier provided an expert opinion on the British approach to implementation of Article 18 of the Berne Convention, was examined by the US Department of Justice. He explained the history and operation of the UK’s provisions protecting reliance parties against prejudice from newly-arising – or ‘springing’ – copyrights. A key focus of consideration was the extent to which these were in compliance with Article 18, and whether ‘transitional provisions’ needed to be ‘temporary.’

Horizon R & D Seminar, University of Cambridge: 5th April

Lionel Bently spoke on ‘Bringing intellectual Property into Disrepute.’ He argued that representations of intellectual property in the popular press were bringing the IP system into disrepute. Examples included reports of claims to copyright in perfumes, in yoga positions and sexual techniques; those relating to exotic trade marks (smells, jingles and so on); and a number relating to broad, or obviously invalid patents, such as an application relating to a method of exercising a cat. He questioned whether this mattered, or whether it could simply be treated as an example of newspapers offering ‘entertaining’ news. Concluding that it should be a cause for some concern, he suggested that it might cause the public to lose sympathy with serious IP claims, where such sympathy was important (as, for example, with regulation of private copying of copyright works); or where support was needed for important reforms. He argued that these dangers could be countered by emphasising the legitimacy of intellectual property regimes, and by intellectual property lawyers, patent agents, and companies acting responsibly, and resisting the urge to use claims to exotic forms of intellectual property as a way to gain advertising.

International Intellectual Property Law and Policy, Fordham University, New York: 31st March - 1st April

Lionel Bently appeared on the panel in the plenary session discussing Recent Developments in European Intellectual Property, commenting specifically on the performance of the ECJ in the last year. He contrasted a period in which ECJ jurisprudence had been formally and substantively poor, with a much improved performance from the Court over the last eighteen months. Hitherto judgments had been characterised by inconsistency and lack of clarity: there had been inconsistency in the decisions on distinctiveness (Windsurfing, Baby Dry, and finally Doublemint) and lack of clarity (for example in the Phillips v Remington decision, which had recently been considered by the English High Court; or the famous Arsenal decision, which had prompted quite different interpretations from the English CA in Arsenal and the House of Lords in Johnstone). To the extent one could tell, the ECJ had also granted strong rights very readily, particularly through the Baby Dry decision. In the past 18 month, despite using a greater variety of advocates General and Rapporteurs, the Court seemed to have become more consistent. This was particularly noticeable in the field of distinctiveness, and much of the jurisprudence concerned article 3(1)(b) of the Directive. But there was also consistency in the case-law on exceptions, the BMW v Deenik case, the Kerry Spring case, and more recently the Gillette and Budvar. Moreover, substantively, the decisions were more balanced, particularly after Doublemint made clear the relevance of the ‘public interest’ in Article 3(1)(c), and with the case law on exceptions. One unfortunate development, exemplified by the Sat.2 and Nichols decisions, however, was the increased formalism in the approach taken to Articles 3(1)(b)-(d), with the Court treating the public interest as usually of limited significance in cases concerning Article 3(1)(b) (with the exception of colour marks, under the Libertel ruling). This kind of formalism was particularly inappropriate given the fact that national registries and the OHIM had not been particularly scrupulous over the last decade as to the ground on which refusals or findings of invalidity were based. A better view would be to see the three grounds of invalidity as three overlapping grounds, all potentially involving the so-called ‘public interest.’


He also gave two papers: ‘Jurisdiction of UK Courts Over Actions Concerning infringement of Foreign Intellectual Property Rights’ (commenting particularly on Griggs v Raben Footwear and Owusu v. Jackson) and ‘Some Matters Relating to Trade Mark Use in Europe’ (considering the CFI and UK case-law on ‘non-use’ since the ECJ decision in Laboratoires Goemar, and UK decisions on bad faith registrations since Harrison v Teton Valley Trading Co [2004] EWCA 1028 )

Academy of Medical Sciences, Carlton Terrace, London: 24th March

Kathy Liddell addressed a meeting of the Academy’s working party on the Use of Patient Data in Medical Research. The presentation titled ‘Understanding the Regulatory Mechanics of the Data Protection Act 2004’ explained key provisions of the Act. Dr Liddell has continued to assist the Academy with the preparation of its report, which is due to be published in Autumn 2005.

Book Launch: 22nd March

Jennifer Davis presented a paper at the London launch of the book, Trade Mark Use, edited by Jeremy Phillilps and Ilanah Simon, for Oxford University Press. The launch brought together academics and legal practitioners, all with an interest in trade marks. The title of Jennifer's paper (and the chapter she contributed to the book) was, "The Need to Leave Free for Others to Use and the Trade Mark Common."

TIPLO, House of Lords, London: 3rd March

Jane Ginsburg and Lionel Bently addressed a TIPLO meeting, chaired by Lewison J. Their paper was entitled  'I Should Have Known Better' - Electronic commerce, jurisdiction and conflicting national copyright and neighbouring rights norms.

Breakfast Briefing, Beresfords, Patent Agents, London (organised by the Corporate Liaison Office, University of Cambridge): 15th February

Lionel Bently and David Secher spoke to various representatives from industry including Arup, BT, Canon, Celltech, Deutsche Bank, Epson, GSK, Hitachi, IBM, Panasonic, Qineteq and Shell; from Law firms Taylor Wessing and Bird & Bird; as well as The Japan External Trade Organisation, Canadian High Commission and DTI.


Lionel Bently spoke on recent trends in intellectual property. He contrasted a period of immense legislative activity (including international treaty formation and regional harmonisation) over the past fifteen years, with increased instances of legislative failure. He attempted to explain the shift, noting key reasons as being that industry had achieved many of its goals in terms of IP reform, and that opposition was now beginning to be well organised. He predicted a period of relative inertia, and considered whether this was to be welcomed. He also pointed to potential, non-legislative, arenas where IP matters might be developed.

Cambridge Network Group, Intellectual Property - Special Interest Group:  17th February

‘The edge of reason - boundaries to what can be patented’ at Qton Forum, Cambridge Science Park

Lionel Bently and Steve Probert, of the UK Patent Office, addressed the issue of patentable subject matter. A summary of the presentations and discussions can be accessed here.

Meeting of the Human Genetics Commission, London:  8th February

Kathy Liddell presented a critique of the recent Human Tissue Act for the Members of the Commission. Her paper entitled ‘Reflections on the Human Tissue Act 2004: Back to the Future’ contrasted the policy in the Act with the recommendations in the Commission’s report Inside Information.

Strangeways Research Laboratory, Cambridge:  16th November 2004

Kathy Liddell presented a seminar on ‘Managing Medical Research Databases: Legal and Policy Issues’ as part of the Strangeways Research Laboratory seminar series. It described the variety of laws and policies that medical researchers using patient data must navigate.

Comparative Studies in Biotechnology and Accountability, Cambridge: 21st October 2004

Kathy Liddell presented a paper entitled ‘Legal Boundaries: Biotechnology, Regulation and Accountability’ to a group of social anthropologists interested in ideas of accountability in the law governing biotechnology. The paper has since been developed into a chapter “Biolaw” which will be published in M. McDonald, ‘Languages of Accountability for Biotechnology’ (Berghahn, Oxford, 2006).