2010 Top 20 Countries based on Purchasing Power
Extracted from the website of the CIA is a list a the top 20 countries rated on their “purchasing power parity” which is is the sum value of all goods and services produced in the country valued at prices prevailing in the United States, during 2010. To quote the explanation from the site “This is the measure most economists prefer when looking at per-capita welfare and when comparing living conditions or use of resources across countries. The measure is difficult to compute, as a US dollar value has to be assigned to all goods and services in the country regardless of whether these goods and services have a direct equivalent in the United States (for example, the value of an ox-cart or non-US military equipment); as a result, PPP estimates for some countries are based on a small and sometimes different set of goods and services. In addition, many countries do not formally participate in the World Bank’s PPP project that calculates these measures, so the resulting GDP estimates for these countries may lack precision. For many developing countries, PPP-based GDP measures are multiples of the official exchange rate (OER) measure. The differences between the OER- and PPP-denominated GDP values for most of the wealthy industrialized countries are generally much smaller”
1 European Union $ 14,820,000,000,000
2 United States $ 14,660,000,000,000
3 China $ 10,090,000,000,000
4 Japan $ 4,310,000,000,000
5 India $ 4,060,000,000,000
6 Germany $ 2,940,000,000,000
7 Russia $ 2,223,000,000,000
8 United Kingdom $ 2,173,000,000,000
9 Brazil $ 2,172,000,000,000
10 France $ 2,145,000,000,000
11 Italy $ 1,774,000,000,000
12 Mexico $ 1,567,000,000,000
13 Korea, South $ 1,459,000,000,000
14 Spain $ 1,369,000,000,000
15 Canada $ 1,330,000,000,000
16 Indonesia $ 1,030,000,000,000
17 Turkey $ 960,500,000,000
18 Australia $ 882,400,000,000
19 Taiwan $ 821,800,000,000
20 Iran $ 818,700,000,000
This information is very useful when deciding where to protect patents, trade marks and designs. It is interesting to note the inclusion of Indonesia, Turkey and Iran in the list and perhaps consideration should be given to protection in these countries in addition to the usual suspects.
More information may be obtained from the website https://www.cia.gov/library/publications/the-world-factbook/rankorder/2001rank.html
Enforcement of IP in China
IP Enforcement at Trade Fairs in China
China has historically had the reputation of being a difficult place to enforce IP.Personal experience has shown that this is not necessarily well founded – if you have the correct paperwork and are helpful,Chinahas good enforcement authorities who will take action on your behalf. This stems fromChina’s desire to become a “great place to do business”. However, the secret to success is to be willing to work with the authorities in having all necessary paperwork to hand when you first approach them for help.
It is interesting to note that all Trade Fairs inChinawhich last for 3 days or more are required to have an IP officer on-site to deal with allegations of infringement. Often Trade Fairs have a list of specific documents needed by the IP officer before they are able to take action, but generally it would be sensible to attend armed with the following (either originals or notarised and legalised copies):
- Certificate of Grant/Registration
- Certificate of corporation or good standing of the proprietor
- Certificate of legal representation proving the identity of the proprietor’s legal representative
- Power of Attorney authorising the IP officer to take action on the proprietor’s behalf – this may be signed by the appointed legal representative
- Chinese translations of all the above documents where relevant
- The complaint identifying the stand and goods in question
If the paperwork is in order, the IP officer will visit the stand and if the items appear as alleged, the exhibitors will be required to remove them from display. If the exhibitor contests the allegations, they have 24 hours to present evidence. Repeat offenders may be banned from future shows.
If you are intending to exhibit inChina, please let Stratagem know if we are able to assist in any way in collating these documents or recommending Chinese legal representation.
Stem cell lines deriving from human embryonic material are not patentable in Europe
The Court of Justice of the European Union (CJEU) has ruled that stem cells that have been derived from a human embryo cannot be patented.
This milestone judgement was reached after Greenpeace challenged the validity of a German patent granted to Prof. Oliver Brüstle that claims neuronal precursor cells, on the basis that patents on cells derived from a human embryo are unethical. These neuronal precursor cells were created from cells taken from a human embryo. The neuronal precursor cells are already in use in clinical applications, including for the therapy of Parkinson’s disease.
Patentability of biotechnological inventions in Europe is governed by what is known as ‘The Biotech Directive’ – and the European Patent Office (EPO) has brought its practice into line with this. This directive essentially prevents a patent application being granted to the use of human embryos for commercial purposes. However, the Directive has caused uncertainty, since there is no definition of a” human embryo”, nor any explanation of what constitutes the “use of a human embryo”.
The Federal Court of Justice in Germany referred questions on the definitions of these terms to the CJEU based upon the Brüstle case.
The CJEU has judged that a process which involves the removal of a stem cell from a human embryo at the blastocyst (early embryo) stage, destroying the embryo, cannot be patented. Currently, the EPO grant patent claims that relate to cell lines derived from already established human embryonic stem cell lines, and they were not concerned with the historical origin of the cells. This CJEU decision, although not legally binding on the EPO, is highly likely to be followed. This means that applicants may no longer be able to obtain patents to cell lines that have been derived from a human embryo.
Being unable to patent their work in this area may deter companies from investing further in stem cell research, to the detriment of those diseases that may benefit from stem cell therapy.
Should you require any further advice in relation to the patenting of cell lines derived from human embryos please contact us.
Comparative Advertising – Do’s and Don’ts
We wish to pass on the following Notie issued by the UK Intellectual Property Office Note in April 2011 regarding how to walk the narrow path between what are permitted references to competitor’s products and what oversteps the mark:
Comparative Advertising
Many businesses use advertising to compare their products or services with a competitor’s products or services, either explicitly or by implication, but few are aware of the legal pitfalls. An EU Directive on comparative advertising has been implemented in the UK by the Business Protection from Misleading Marketing Regulations 2008 (“the Regulations”).
The Regulations allow comparative advertising so long as it is not misleading or confusing, so as to affect the consumer’s choices; compares like for like goods or services, including the relevant features of those goods or services; does not discredit the competitor or take unfair advantage of a trade mark’s reputation; and does not present goods or services as imitations or replicas of goods and services bearing a protected trade mark or name.
A breach of the Regulations is an offence which can be enforced by the Office of Fair Trading. The Advertising Standards Authority also replicates the requirements in the British Code of Advertising, Sales Promotion and Direct Marketing (CAP Code).
A competitor who finds its goods or services unfairly compared is also likely to sue the advertiser for trade mark infringement and may also be able to obtain redress through an action for trade libel, malicious falsehood, infringement of copyright or even passing off.
The following steps should be taken to minimise the risk of falling foul of the Regulations:
1. Consider whether the advertising is unfair or misleading. Does its presentation deceive or will it be likely to deceive the persons to whom it is addressed or reaches? Will the advertisement affect their economic behaviour, for example, if it induces or is likely to induce them to part with money for the goods or services being advertised or injures or is likely to injure a competitor due to its misleading nature? If so, it will fall foul of the Regulations. When assessing whether the advert is misleading consider the characteristics of the advertised goods and services, how they are delivered, how prices are calculated and the nature and attributes of the advertiser.
2. Consider who your target audience is and whether they will consider that the advertisement is misleading;
3. Consider how you identify your competitor and your competitor’s product and be careful that, if you use your competitor’s trade mark/branding, it does not give the impression that the advertisement is for the competitor’s product rather than yours;
4. Confirm the accuracy of data and statistics. Retain supporting evidence to justify that the statistics are representative of the characteristics of the two products relevant for a proper comparison;
5. Ensure that the goods or services being compared are used for the same needs/intended purpose and do not select criteria to compare without portraying the whole picture;
6. Consider that a competitor can take action for copyright infringement against you if you reproduce its logo or branding;
7. Ensure that the advertising is not confusing and be clear who the advertiser is;
8. Avoid “puffery” or poking fun at a competitor and make sure that the advertisement does not take unfair advantage of a competitor’s reputation, trade marks or other branding; and
9. Consider industry codes of practice.
Scams –Bogus “invoices” to IP right holders
There has been a recent rash of official looking” invoices” being sent to applicants for patents, designs and trademarks requesting payment in order to register or renew the right. Whilst these documents look genuine at first glance, it becomes apparent that the entity asking for rapid payment of fees is not a recognised IP Office – and these entities are currently using names such as CPTD (Central Patent and Trademark Database), WPTD (Worldwide database of Trademarks and Patents), RIPT (Register of International Patents) and ODM. The invoices are asking for very short payment terms, generally within 8 days. Often “invoices” from more than one of these entities arrives together, each asking for a varying amount to perform the same task. The fee mentioned on this invoice normally far exceeds the normal fee from the IP Office itself.
These “invoices” are deluging applicants because, unfortunately, some slip though the net and get paid.
If you have engaged Stratagem IPM to represent you in front of the IP Offices, you will not receive any official invoices from an IP office regarding registration fees and the like, and are asked to forward these “invoices” to us so we can keep the IP offices aware of these issues.
Anyone receiving an “invoice” they were not expecting for any IP right should contact their legal representative before authorising payment.
U.S Senate Passes Leahy-Smith America Invents Act 2011
President Obama signed the Act on Friday 16th September 2011 and commented “This much needed reform will speed up the patent process so that innovators and entrepreneurs can turn a new invention into a business as quickly as possible”. This represents the most significant changes in US patent reform since 1952 and aims to help businesses, inventors and entrepreneurs in the following ways:
- Fast track for patent processing – guaranteed within 12 months!
- Reduction of patent backlog (currently at 700,000 patent applications)
- Reduction in litigation – lower costs
- Increasing patent quality – an improvement in the quality of examinations
- Harmonisation with patent practices abroad.
The Act will enter into force in 1 year from enactment in general.
In terms of practice there will be greater emphasis on ensuring inventions are filed earlier. The most significant changes are as follows:
- The move from a first-to-invent to a first-to-file system will mean that the US is now in-line with the rest of the world and issues of conception and reduction to practice will no longer be relevant. Consequently it will not be possible to argue that an invention was made before a certain date by “swearing behind” prior art and or otherwise available to the public. This provision will come into effect in 18 months time.
- In line with the first-to file system, the prior art base will be broadened by amendment of §102(a) and §102(b) to remove the US geographical limitation. Hence an invention will not be patentable if it is known or used by others (§102(a)), or in public use or on sale more than one year prior to the date of application (§102(b)). This means that the US restriction for public use, sale and knowledge will apply on a worldwide basis. In addition, §102(a) has been further amended to introduce a new phrase ‘or otherwise available to the public’ which remains to be interpreted.
- The grace period which permits the filing of US applications up to one year after disclosure is now limited to disclosures made by the inventor or “another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor”. Therefore in conjunction with the non-territorial limitation this provision will have a limited application.
- Post grant proceedings have been amended such that inter partes reexamination (now named inter partes review) can only be requested within the later of 9 months of grant or termination of any post grant review in addition to a higher threshold of whether a review should go ahead will be applied. The overall process has been accelerated with a decision issuing within 1 year of institution of the review. Other changes are aimed at the prevention of parallel related post grant proceedings in respect of the same patent.
- Interference proceedings (to decide who invented first) will be replaced with new “derivation” proceedings to determine if the earlier patent was “derived” from the inventor of a later filed patent. Derivation proceedings may also apply to pending applications. This will be effective for applications filed on or after 18 months after 16th September 2011.
Effective dates for the various provisions are summarised here http://www.uspto.gov/aia_implementation/aia-effective-dates.pdf
R&D Tax Relief
The 2011 Budget saw some improvement to the situation regarding research and development tax relief available to SMEs.
HMRC announced that:
“Legislation will be introduced in Finance Bill 2011 to increase the additional deduction for qualifying R&D expenditure given to SMEs in computing business profits or losses for corporation tax purposes. Subject to State aid approval, the additional deduction will increase from 75 per cent to 100 per cent of the qualifying R&D expenditure: a total deduction of 200 per cent.
Subject to State aid approval, legislation will be introduced in Finance Bill 2012 to increase the additional deduction by a further 25 per cent giving a total deduction of 225 per cent from 1 April 2012, and, subject to consultation, to simplify the rules of R&D tax relief for SMEs.”
This change has now been approved by the European Commission and should therefore now proceed to take affect in 2012.
