ELZABURU Blog - Industrial and Intellectual Property

Tag Archives: Patents

50th anniversary of the Moon landing: Legal aspects of space exploration

The celebration of the 50th anniversary of the Moon landing is a good opportunity to reflect on the impact of space exploration on technology, on legal protection of technology and on other legal aspects of space exploration.

The space race, which took place principally between the 1950s and the 1970s, provided the stimulus for significant technological advances. Since then, we have seen notable progress in numerous areas: civil and military telecommunications, propulsion systems, meteorology, Earth observation, mapping, etc. There have also been important scientific experiments with practical applications for our everyday lives. 

Mobile telephones (and their various features) are an example of how technology initially used in the field of space exploration has entered the domestic sphere. Moreover, the Moon missions and use by astronauts helped to popularise existing products, such as Velcro, and materials, such as Teflon.

Both NASA and the European Space Agency (ESA) have technology transfer programmes which enable them to market their patents and technologies in the private sector and which have given rise to numerous start-up companies. Indeed, many of the objects and technologies that we habitually use originate from space-related technology protected by different patents.

Most of this technology, while it has been used in space, was developed and tested here on Earth, and can therefore be protected under patent legislation. But what if an invention has been created in space, for example, on the International Space Station (ISS)? 

The Outer Space Treaty of 27 January 1967, which represents the basic legal framework of international space law, provides the legal basis for exploration and use of outer space. The treaty establishes that outer space shall be free for scientific research, and that the countries that are parties to the treaty shall provide and foster international cooperation in that research.

The ISS is an example of how it has been possible to carry out joint projects with positive results through international cooperation.

The ISS is governed by an agreement concerning cooperation on the Civil International Space Station (the International Space Station Intergovernmental Agreement of 1998), signed by the USA, Russia, Japan, Canada and the Member States of the ESA. In this agreement, it is stated that the ISS is made up of different modules belonging to different states, that each state has jurisdiction over its own module and, therefore, that its patent laws would be applicable to its module. The ISS system could serve as a model for future scientific space missions; for example, there are various projects on the horizon, such as the Mars missions or the return to the Moon, which have once again placed space exploration in the media spotlight.

Furthermore, the advent of new space activities (such as the first steps in space tourism, which has already made its way to the ISS), has led some countries to consider how to regulate such activities to bring them into line with international law.

Moreover, it is well known that patents are rights with a territorial scope. Therefore, in theory, conflicts could arise when a spacecraft of one country uses launch platforms or other facilities that are normally found in other countries with more favourable conditions. However, many national patent laws, influenced by Article 5ter of the Paris Convention for the Protection of Industrial Property, provide for exceptions stipulating that the holder of a patent may not assert its exclusive rights against third parties in the case of aircraft authorized to enter a territory, with regard to possible claims concerning parts, accessories, procedures, etc. that might infringe patents in force in that territory, thereby resolving the issue.

Space law is currently regulated by the Vienna-based United Nations Office for Outer Space Affairs (UNOOSA), which is responsible for implementing the space-related decisions of the United Nations General Assembly and keeping a record of objects launched into space.

It is impossible to imagine the world as it is today without space exploration. In 2069, the centenary year of the Moon landing, our daily lives will surely have been greatly transformed, largely thanks to technological advances in the space sector.

So, we must continue to make progress in space exploration and in the legal aspects of space exploration, in order to continue contributing to making life easier here on Earth.

Article originally published in Cinco Días
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Assessment of MWC Barcelona 2019

The Commercial Court of Barcelona and the European Union Trade Mark Courts of Alicante have published their report summarising the application of the duty service and fast-action protocol for the Mobile World Congress held last week in Barcelona (MWC 2019). The information provided in this report will be no surprise for those, such as ELZABURU, having experienced first-hand the procedural peripeteia at this Congress.

  1. The courts have handled and resolved 50 matters in total, representing a 42% increase when compared to those dealt with in 2018.
  1. 38 protective letters were submitted to avoid adopting preliminary injuctions inaudita altera parte, 36 of these in Barcelona with regard to patents and 2 in Alicante in relation to European Union trade marks and designs. They were all processed and resolved within 24 hours.
  1. In order to verify the presence of goods suspect of patent infringement during the trade fair, the court attended 5 petitions for verification of facts procedures, these being processed and granted within a period of 48 hours. 2 of these petitions were notified and carried out by means of seizing samples at the actual inauguration of the Congress.
  1. On the subject of preliminary injunctions inaudita altera parte, the court of Barcelona attended 5 petitions filed and granted within a period of 48 hours before the start of the Congress. The measures were performed while the Congress was underway, with onsite seizure of samples. Curiously, in one of the cases the interested party was able to file a brief of opposition within two days, with the court accepting the opposition and immediately lifting the measures.
  1. ELZABURU followed the MWC 2019 there and then, being involved in 6 legal proceedings, preparing the defence strategy for another 2 cases that took different courses, while attending the Congress onsite to face any incident that could have occurred.

In addition, the actions of the courts of Barcelona and Alicante were exemplary when assessed regarding the judicial response and the efficiency of the mechanisms established in the Protocol. All remaining is to think of MWC 2020!

Author: Enrique Armijo

Visit our website: http://www.elzaburu.es/en


New IP Court in China

On 26 October 2018, the Standing Committee of China’s National People’s Congress issued a decision to establish a new IP Court of Appeal at the national level within the Supreme People’s Court, operational from 1 January 2019.

The so-called SPC IP Court (Intellectual Property Court of the Supreme People’s Court) located in Beijing handles, principally but not exclusively, appeals in patent and technology cases.

TheSPC IP Court’s jurisdiction encompasses two types of patent cases:

  • appeals against judgments declaring infringement or non-infringement issued by courts of first instance nationwide, including the three specialized IP courts in Beijing, Shanghai and Guangzhou, the 16 intermediate courts with specialized IP sections and other intermediate courts with jurisdiction over patent cases; and
  • appeals against administrative judgments issued by the Beijing IP Court on patent validity or rejection of patent applications.

Understanding China’s timeline of development concerning IP provides a clearer overview with regard to this latest step. In 2008, China announced its National IP Strategy, which seeks to promote and protect IP creations with the goal of centralizing patent litigations. Then in 2014, specialized IP Courts were established in the key cities of Beijing, Shanghai and Guangzhou. Four more followed in 2017 in Nanjing, Suzhou, Chengdu, and Wuhan. Establishing a national IP appeal court has been a frequent topic of debate in China since the establishment of specialized IP courts in 2014.

Under the previous legal system, patent and technology-related cases were generally handled initially by the intermediate courts or specialized IP courts and appealed to the high courts of the different provinces, which led to splits on different patent law issues due to a variety of reasons, such as, unbalanced development in different regions, lack of expertise, diverging interpretations of the laws and regulations, or local protectionism.

It is also important to consider that legal and technical issues relating to patents and technology are often complex and require the judge to have a high level of expertise. The new SPC IP Court will be composed of judges who possess appropriate experience and knowledge of handling patent cases involving technology. Accordingly, the establishment of the new SPC IP Court will improve the quality of decision-making and act as a guide for first instance courts in technology-related cases.

As a result, the new SPC IP Court will contribute towards facilitating a more practical and international business environment and, thus, it is hoped that more foreign companies will feel encouraged to litigate in China to enforce their patents.

Finally, turning to the statement by the National People’s Congress, these changes are intended to “unify the standards of IP cases, further strengthen the judicial protection of intellectual property rights, optimize the environment for scientific and technological innovation, and accelerate the implementation of the development strategy driven by innovation.”

Author: Ruth Sánchez
Visit our website: http://www.elzaburu.es/en

The court hotline has been set up for MOBILE WORLD CONGRESS 2019 in Barcelona

The Mercantile Courts of Barcelona have now disclosed the Duty Service and Fast-Action Protocol adopted on 13 December for MOBILE WORLD CONGRESS 2019. This is the fifth year running the Courts of Barcelona provide coverage for this important international forum, enabling the adoption of preliminary injunctions and the handling of preventive briefs under the most urgent conditions. The Protocol brings several important developments with it this year.

For the first time, the Protocol is agreed jointly by the Mercantile Court of Barcelona and the European Union Trade Mark Court in Alicante. In this way, the Protocol will not only be effective regarding patent infringements, but also for cases of infringement of European Union Trade Marks and Designs. Any preliminary injunction adopted by the Court of Alicante within this context may be enforced by the Courts of Barcelona while the Congress is being held.

The Protocol will be in force throughout February, in particular during the days the event is held (25-28 February). The commitment of the courts is to process and decide on the petitions for urgent preliminary injunctions within a period of 2 days (without a hearing for the defendant) or of 10 days (with a previous hearing being held) in terms of whether a preventive brief was previously filed.

Furthermore, the Protocol also proposes a guideline is followed to evaluate the risk factor that justifies measures are taken without a hearing for the defendant. For such purpose, both the previous behaviour of the complainant and the reaction speed to any knowledge on an eventual infringement will be decisive. The Protocol places emphasis on the fact that “it will be important to have submitted a petition for urgent preliminary injunctions sufficiently in advance for this, in good faith, not to reasonably prevent a hearing for the defendant, whenever the owner of the allegedly infringed right knew about the possible infringement beforehand and was able to file his petition in good time”.

These provisions of the Protocol encourage companies participating in MWC to weigh out and put in place as soon as possible their defensive or preventive strategies to guarantee their position. It should be borne in mind that 35 actions were carried out by judges in Barcelona regarding MWC 2018, 7 of these consisting of preliminary injunctions without a hearing for the defendants that were aimed at removing products on exhibition in the stands.

Author: Enrique Armijo

Visit our website: http://www.elzaburu.es/en

Fashion Law. Patent protection in the fashion sector (III)

ELZABURU has had the pleasure of working together with the publisher Thomson-Reuters Aranzadi on Fashion Law, a pioneering work in Spain on the subject of fashion law, which was presented on 16 April.

In these short weekly summaries, the professionals at ELZABURU who participated in the work offer us a brief outline of their contributions:

Patent protection in the fashion sector

Politics was transformed by the French Revolution in 1789. Fashion, on the other hand, has been transformed over the past 200 years as a result of many small revolutions. From changes in clothing to changes in household linen or technical fabrics. Each of these transformations has created new and valuable intangible assets. This chapter “fashion as a patentable invention” aims to show the clear impact of innovation on the field of fashion. There are many relevant examples of patents throughout history, and one wonders what our everyday lives would be like without inventions such as the zip, velcro or bras. Some of the most representative current examples showing that patents are a powerful tool in the world of fashion are Gore-tex®, Geox’s waterproof shoes, Procter & Gamble Company’s bleaching technology, or Grindi SRL’s Suberis fabric, among others.

Nowadays, thanks to increased awareness and concern for the environment, there is a greater focus in fashion innovation on creating new fabrics with less environmental impact. Examples of this change can be seen, for example, in new biodegradable filaments produced by bacteria or fungi or a Puma shoe prototype produced using leather made from pineapple.

The chapter touches on the trend of “smart clothing”, which has seen features added to products which go beyond the usual scope of use in an effort to achieve innovations that make users’ lives easier. From t-shirts that measure temperature and heart rate, Human Sensor clothing which changes colour to reflect the levels of air pollution in the surrounding environment, odour-resistant clothing, wrinkle-free and stain repellent clothing, sports clothing or bags with a built-in deodorant device, to Nike’s HyperAdapt trainers, which are able to adapt to fit the user’s feet and feature self-adjusting laces. The scene in “Back to the Future”, in which Doc offers Marty McFly some special shoes which automatically adjust to fit his feet, is already close to becoming a reality.

The conclusion drawn in this chapter is that we should regard patents as a powerful commercial tool given that a patent confers on its holder the right to prevent others from manufacturing, using, offering for sale, selling or importing its product or process. This exclusive right is a decisive factor in companies succeeding in such a dynamic and demanding environment as the fashion sector, enabling them to establish a solid position and gain a competitive advantage in the marketplace.


Author: Marina Reig 

Visit our website: http://www.elzaburu.es/en


Blog entries in the series Fashion Law:

1.Trademark protection in the fashion sector (23.04.2018)

2.Design protection in the fashion sector (30.04.2018)

3.Patent protection in the fashion sector (07.05.2018)

4.Protection of fashion through copyright (21.05.2018)

5. Image rights in the fashion sector (28.05.2018)

6.Fashion Law. Data Fashion (04.06.2018)

7.Counterfeiting in the fashion sector (11.06.2018)

8.Exhaustion of rights in the fashion sector (18.06.2018)

9.Corporate reputation in the fashion sector (25.06.2018)

10. Protection of the commercial imagen of a fashion brand (04.07.2018)

11. Websites, Apps & Social Networks (13.07.2018)

12. Valuation of intangible assets (17.07.2018)

13. Licensing (06.09.2018)



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