Protectability in UK Law

Leading Cases
  • Biogen Inc. v Medeva Plc
    • House of Lords
    • 31 Oct 1996

    His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance ( as Renan said, la v�rit� est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.

  • Windsurfing International Inc. v Tabur Marine (Great Britain) Ltd
    • Court of Appeal (Civil Division)
    • 31 Ene 1984

    Thereafter, the court has to assume the mantle of the normally skilled but unimaginative addressee in the art at the priority date and to impute to him what was, at that date, common general knowledge in the art in question. Finally, the court has to ask itself whether, viewed without any knowledge of the alleged invention, those differences constitute steps which would have been obvious to the skilled man or whether they require any degree of invention.

  • Thomson Holidays Ltd v Norwegian Cruise Line Ltd
    • Court of Appeal (Civil Division)
    • 17 Dic 2002

    In my view that task should be carried out so as to limit the specification so that it reflects the circumstances of the particular trade and the way that the public would perceive the use. If the test of infringement is to be applied by the court having adopted the attitude of such a person, then I believe it appropriate that the court should do the same when deciding what is the fair way to describe the use that a proprietor has made of his mark.

  • Reed Executive Plc v Reed Solutions Plc
    • Court of Appeal (Civil Division)
    • 03 Mar 2004

    The "average consumer" is a notional individual whereas the substantial proportion test involves a statistical assessment, necessarily crude. Whichever approach one uses, one is essentially doing the same thing – forming an overall ("global") assessment as to whether there is likely to be significant consumer confusion. It is essentially a value judgment to be drawn from all the circumstances. Further conceptional overelaboration is apt to obscure this and is accordingly unhelpful.

  • Generics (UK) Ltd v H Lundbeck A/S
    • Chancery Division (Patents Court)
    • 04 May 2007

    Paragraph [45] is, to my mind, key. The question of obviousness must be considered on the facts of each case. The court must consider the weight to be attached to any particular factor in the light of all the relevant circumstances. These may include such matters as the motive to find a solution to the problem the patent addresses, the number and extent of the possible avenues of research, the effort involved in pursuing them and the expectation of success.

  • Hotel Cipriani SRL and Others v Cipriani (Grosvenor Street) Ltd and Others
    • Chancery Division
    • 02 Mar 2010

    In my judgment it follows from the foregoing considerations that it does not constitute bad faith for a party to apply to register a Community trade mark merely because he knows that third parties are using the same mark in relation to identical goods or services, let alone where the third parties are using similar marks and/or are using them in relation to similar goods or services. The applicant may believe that he has a superior right to registration and use of the mark.

  • Synthon BV v Smithkline Beecham Plc (No.2)
    • House of Lords
    • 20 Oct 2005

    If I may summarise the effect of these two well-known statements, the matter relied upon as prior art must disclose subject-matter which, if performed, would necessarily result in an infringement of the patent. That may be because the prior art discloses the same invention. In that case there will be no question that performance of the earlier invention would infringe and usually it will be apparent to someone who is aware of both the prior art and the patent that it will do so.

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Books & Journal Articles
  • Organizational conflicts affecting technology commercialization from nonprofit laboratories
    • Núm. 4-5, Diciembre 1995
    • Journal of Product & Brand Management
    • 5-13
    Organizational conflict mediates management and innovator interest in commercializing technology. Issues (or circumstances) resulting from conflicting goals should be considered by companies in dev...
    ...... developed; ● relationship of the technology with the organization’s major activity; ● “deliberateness” of the discovery; ● protectability of the technology; ● provisions for exclusive rights; ● nature of the technology as process versus product; ● level of development needed ......
  • An Intentional View of the Copyright Work
    • Núm. 71-4, Julio 2008
    • The Modern Law Review
    The questions at the heart of copyright – what is a work, and the extent of copyright protection – are considered. Arguments are presented firstly for an understanding of works oriented around expr...
    ......Sim ilarly wit h respect to po licy: gi ven that e very ¢nding of infringement implies a ¢nding of protectability ^ that the part of the work w hich the infringing act invol ves is an app ropria te object o f exclusiona ry 120 In some cases it has gone ......
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Law Firm Commentaries
  • Nothing beats a good TM LWYR – Nike’s questionable LDNR campaign
    • LexBlog United Kingdom
    A July 2018 decision of the UK Intellectual Property Enterprise Court (IPEC) appears to have put paid to Nike’s recent “Nothing beats a Londoner” ad campaign. The case highlights, with hindsight, a...
    ......Before launching any new brand, a well-advised business will consider the availability and “protectability” of its proposed brand. An availability or “clearance” check can be either a quick and dirty “desktop” search (namely, a review of the ......
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