Ireland IP & Technology Law Blog : Dublin Lawyers & Attorneys for Intellectual Property, Communications & Information Technology Law in Ireland, U.S. & England

At a recent meeting of the Competitiveness Council, European Ministers acknowledged that an EU patent is essential for encouraging innovation and boosting competitiveness. There was however disagreement on the language regime set forth in an EU Commission Proposal aimed at establishing translation arrangements for a future EU patent system.

Under the proposed language regime, applicants would only be required to provide translations into one of the three official languages of the European Patent Office (i.e. English, French or German) and no further translations would be required to effect the enforcement of the patent throughout the EU.

Despite the Ministers’ disagreement, there may be some hope of salvaging plans for an EU patent system, as a “very large majority” reportedly supported a compromise put forward by the Belgian Presidency. The Belgian compromise highlighted the importance of making available high-quality machine translations into all EU languages as well as compensation for the costs of translation of a patent application drafted in an EU language other than one of the official European Patent Office languages.

There are plans to organise a Ministerial Conference in November in an attempt to reach an agreement. The current disagreement on language issues do not however bode well for future negotiations as similar language issues have hampered previous attempts to establish an EU patent system.

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The UK Court of Appeal reversed an aspect of the decision of Floyd J in a recent patent infringement case. The decision is of general interest for its discussion of the interpretation of contributory infringement under section 60(2) of the Patents Act 1977 and the Court's views on the following of decisions of other national courts.

The Appeal Court held that the intention to put an invention into effect required under section 60(2) of the Patents Act 1977 need not be of any specific person.

The knowledge and intention requirements of that section were satisfied if, at the time of supply or offer of supply, the supplier knew, or it was obvious in the circumstances, that ultimate users would intend to put the invention into effect.

The Court was astonished that neither party mentioned a decision of a Dutch Court in relation to the same matters and the very same machine in which the appellant appeared as claimant. The Court's view is that an important decision in one member state might well be of strong persuasive value in another member state, particularly where the judgement contained clear reasoning on a point of national patent law which in turn implemented a treaty provision.

The interpretation of the knowledge requirement in relation to contributory infringement in this case would likely be followed by an Irish court given the similarity between section 60(2) of the Patents Act 1977 and section 41(1) of the Patents Act 1992. The Judges' comments on the decisions of other national courts on the interpretation of statues putting international treaties into effect is an interesting one given the continuing delay in efforts to harmonise European patent law. Click on the link below to view the case - Grimme Landmaschinenfabrik GmbH & Co KG v Derek Scott (t/a Scotts Potato Machinery) [2010] EWCA Civ 1110, 15 October 2010.

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On Monday Mr Justice Peter Charleton gave judgement in favour of UPC against the Irish record industry in a landmark copyright case. The Judge determined that the Plaintiff had not succeeded in its attempt to procure an injunction against the internet service provider. UPC had claimed that it had no liability under the Copyright and Related Rights Act 2000 and argued that it was a mere conduit for illegal downloading. The Judge held that copyright law made no proper provision for the blocking, diverting or interrupting of internet communications intent on breaching copyright.

In his judgement the Judge criticised UPC’s failure to take action against those involved in illegal downloading and stated he was “not satisfied that the attitude of UPC toward the illegal sharing of copyright material over the internet is either reasonable or fair”. He said that while an injunction directing UPC to act against privacy was merited on the facts of the case, the lack of any provision in the 2000 Act prevented the granting of the orders sought.

The Judge went on to say that internet piracy was devastating the recording companies’ business in Ireland and the retail sector in Ireland: “If there are no profits, and no royalties to artists, the legal sale of recorded music, through the preparation of albums, will stop”. He made reference to legislation and procedures in the US, the UK, Belgium and France and said that Ireland’s legislation with regards to copyright and piracy is clearly not in line with other States. He stated that “Legislative intervention is required, if the Oireachtas sees fit, to protect constitutional rights to copyright and foster the national resource of creativity”.

Interestingly, the Judge said that he had erred in his previous judgement in the Eircom case as there was no legislative basis in Irish law that enabled him to reach the conclusions he did and he invited the Parties involved in that case to reapply to the Courts.

The judgement is available to read here.

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The High Court today delivered a landmark judgement in favour of the Defendants in the case of Koger Inc. and Others v HWM and Others.

Commenting on the outcome of the judgement Shamus O'Donnell, Managing Director of HWM, said: "We are delighted to have won the court's backing in this crucial judgement which reinforces the freedom of employees in the IT sector to regard their own skills and know how as their own intellectual property and looks likely to be the leading intellectual property software authority in Ireland".

A&L Goodbody acted for the Defendants in this case.

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The European Commission has referred the UK to the Court of Justice for the European Union (“CJEU”) for not fully implementing EU rules on the confidentiality of electronic communications such as e-mail or internet browsing.

The Commission considers that existing UK law governing the confidentiality of electronic communications is in breach of the UK’s obligations both under the ePrivacy Directive 2002/58/EC and the Data Protection Directive 95/46/EC in three specific areas:

·         there is no independent national authority to supervise the interception of some communications, although the establishment of such authority is required by the ePrivacy and Data Protection Directives, in particular, to hear complaints about the interception of communications;

·         current UK law authorises interception of communications not only where people have consented to the interception, but also when the person intercepting the communication “has reasonable grounds for believing that consent to do so has been given”. These UK provisions do not comply with EU rules defining consent as “freely given, specific and informed indication of a person’s wishes”; and

·         current UK law prohibiting and providing sanctions in cases of unlawful interception are limited to intentional interception only, whereas EU law requires member states to prohibit and to ensure that there are sanctions against any unlawful interception, regardless of whether or not it was committed intentionally.

The case centres on the UK Government’s failure to act against BT over its use of Phorm, a scanning software that tracks users’ web use in order to serve them ads that are related to the recorded internet activity. BT used this technology without telling users, which led to complaints to UK regulators and the Commission that this breached privacy laws.

No doubt the outcome will be of interest to Irish Data Controllers and the Irish Data Protection Commissioner –

if the CJEU finds against the UK, this could provide the Commission with the impetus it needs to impose stricter rules on all member states, in particular its stated objective of strengthening and harmonising consent rules. 

We will keep the Blog updated on developments.

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In a recent speech to the Royal Television Society, the UK Culture Secretary Of State Jeremy Hunt has outlined the UK Government’s commitment to decentralise broadcasting and increase localisation. With political power increasingly being devolved to locally elected politicians, it makes sense, he says, for a network of local media stations to evolve in order to reflect the strong desire for locally focused coverage.

Mr Hunt outlined a vision of a network of local, cross-platform multimedia TV services which would broadcast for as little as an hour a day, be free to affiliate with each other to bring down costs, be able to offer nationwide deals to advertisers, piggyback on existing national networks, including broadband infrastructure, and exploit new technologies such as Canvas, YouView and mobile TV.

According to Mr Hunt, the UK Government will encourage the development of this new local landscape by removing local cross-media ownership rules, redefining ‘public service broadcasting’ to emphasise local content, legislating to clarify which public service broadcasters should be listed on the front page of electronic programme guides and their online equivalents, and by working with the BBC to encourage partnership with local media providers.

Mr Hunt has asked Nicholas Shott, Head of UK Investment Banking at Lazard, to review this policy in terms of commercial viability. Mr Shott, in his preliminary findings, has urged caution by saying that "it is difficult to see a clear path to commercial viability of local TV" as local channels would not be sustainable on advertising revenue alone and more practical solutions towards local services may need to be explored. Mr Shott's preliminary proposals include providing local content by a variety of means, including broadband. The UK Government's full local media action plan is due to be published before the end of 2010, alongside Mr Shott's final report. Television and media stakeholders will be awaiting publication of both with interest.

A link to Jeremy Hunt's speech can be found here.

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Google Street View launched in Ireland this week.

Street View’s online panoramic mapping service gives internet users a “car’s eye view” of streets while allowing them to virtually explore a location.

Over 80,000 km of roads, as well as Ireland’s top tourist destinations and historic monuments, including the new Aviva Stadium, Dublin Zoo, the Botanical Gardens and Fota Wildlife Park, have been mapped and snapped. Images for the Irish version of the service have been collated since 2009.

Speaking at the official launch, Mary Hanafin commented on the benefits the service will have for Irish tourism. The Minister acknowledged people’s concerns about their privacy being breached, however deputy data protection commissioner Gary Davis said his office worked closely with Google to ensure that any privacy concerns were dealt with before the launch date.

The launch is good news for Google; it had a minor brush with the Office of the Irish Data Protection Commission earlier this year but the company has now satisfied all data protection requirements.

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