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Greenpeace’s attempts to have “stem cell” patents of Oliver Brüstle revoked moves to the European Court of Justice: The Budnesgerichtshof (German Federal Supreme Court) has referred to the ECJ several questions about the patentability of the use of stem cells to treat various neural diseases.

IPKat has details here, summarising the issues as :

The ECJ will now have to rule on the interpretation of “human embryo” in the sense of art. 6 Directive 98/44/EC. Is a stem cell derived from a blastocyst which has lost its ability to develop into a human still an embryo? If so, is a blastocyst a human embryo? If so, is purely therapeutic use of stem cells a “commercial or industrial purpose” in the sense of art. 6?

By way of comparison, section 18(2) of our Act baldly declares:

Human beings, and the biological processes for their generation, are not patentable inventions.

This provision was introduced at a late stage of the legislative process. Deputy Commissioner Herald had to try and work out its meaning in Fertilitescentrum AB and Luminis Pty Ltd’s Application [2004] APO 19 where he considered that:

36. It seems to me that of these three approaches, only the third approach provides a satisfactory interpretation of s.18(2). Accordingly, in my view the correct interpretation of s.18(2) is ascertained by recognising a human being as being in the process of generation (in either of the two ways I refer to in paragraph 31) from the time of the processes that create a fertilised ovum (or other processes that give rise to an equivalent entity) up until the time of birth.

37. The prohibition of `human beings’ in my view is a prohibition of patenting of any entity that might reasonably claim the status of a human being. Clearly a person that has been born is covered by this exclusion. But to the extent that there is a process of generation of a human being that lasts from fertilisation to birth, I consider that a fertilised ovum and all its subsequent manifestations are covered by this exclusion.

In application of that ruling, the Examiner’s Manual indicates that the Commissioner’s policy with respect to stems cells is that:

it follows that human stem cells and human stem cell lines per se are patentable because these cells are not considered to be human beings or potential human beings within the meaning of s18(2).

Michael Geist has a link to the leaked EU comments on the chapter for third party liability on the internet – being drafted by the USA.

The Guardian has weighed into the debate.

Kim Weatherall has emerged from her self-imposed seclusion to comment here, here and here.

DFAT’s must recent summary and overview of key elements. Anondyne USTR statement.

Julian Lee, in the Age yesterday, reported on the concerns of “marketers” about how hard Australian regulators are making it to register a shape as a trade mark, in the wake of:

1. last month’s ruling by Sundberg J against Guylian’s sea-horse shaped chocolate; and
2. the commencement of Nestle’s appeal against Aldi’s successful opposition to registration of the shape of a Kit Kat bar as a trade mark (BDW discussed the decision here, but the decision itself seems to be hiding on-line).

To digress for a moment from the “shape” issue – Mr Lee also reports that Cadbury and Darrell Lea have settled their long running litigation and Cadbury has secured registration of its trade mark for the colour purple.

Back to “shape” marks, you might have thought from the tenor of Mr Lee’s article that Australia is yet again embarking on anutochthonous experience, but it seems that the Europeans are playing hardball too; e.g. here and here.

Selected microblog posts from the past week:

• Holman’s review David Koepsell – Who Owns You? The Corporate Gold Rush to Patent Your Genes http://ff.im/-7dK4P
• Patent Docs: Falsehoods, Distortions and Outright Lies in the Gene Patenting Debate http://ff.im/-7dK9H
• Koepsell fights back http://ff.im/-7dKek
• David Koepsell Doesn’t Know How to Cut His Losseshttp://ff.im/-7dKbE
• Patently-O: BRCA Gene Patents http://ff.im/-7mFuc

• Wyeth gets interloc. injunction in Australia against Alphapharm for alleged infringement of Efexor-XR patent:http://bit.ly/dvYwy
• Kenny J also rejects a higher threshold for interlocutory injunctions in patent cases http://bit.ly/SQViX ; Beecham doesn’t rule.

• RT @patentlyo: #Patent: Microsoft v. i4i: Briefing the Appeal http://digg.com/u1Bbhg

• RT @asilverstein: RT @bnatechlaw: Blogged Turning the Page on “Hyperwrap” Contracts http://bit.ly/Fv5hf

• How to Report Abuse to WordPress.com | PlagiarismToday http://ff.im/-733JQ
• RT @MegLG: Music Publishers Group Finally Sues Lyrics Sites 08/26/2009 http://ow.ly/lnOo
• the 1709 Copyright Blog: Knockback for record labels in US streaming decision http://ff.im/-73utR

• Pros and Cons of Stand-Alone Non-Verbal Logos and Other Trademark Styles: A Legal Perspective : Duets Bloghttp://ff.im/-73bMH
• RT @MegLG: Three Chocolate Companies Run Three Different Ways when it comes to TMs http://ow.ly/l2kyProperty, Intangible via @RonColeman

• EU wants to investigate patent quality and trade mark system (via IPKat) http://ff.im/-73vD3
• RT @mikk_IPR: Interactive Treaty Maphttp://www.pof.com.au/POFInteractiveMap. Berne Convention and WTO not included (yet?)
• At last … the 1709 Copyright Blog: Scottish court rules on jurisdiction regarding online infringementshttp://ff.im/-73c1h

According to the IPKat, the ECJ has introduced an EU-wide law of unfair competition/tarnishment for registered trade marks in L’Oreal v Bellure.

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On 15 January 2009, the European Commission commenced new proceedings against Microsoft alleging that Microsoft was abusing its dominant position in the market by tying Internet Explorer to the Windows operating system:

According to the Commission:

The evidence gathered during the investigation leads the Commission to believe that the tying of Internet Explorer with Windows, which makes Internet Explorer available on 90% of the world’s PCs, distorts competition on the merits between competing web browsers insofar as it provides Internet Explorer with an artificial distribution advantage which other web browsers are unable to match. The Commission is concerned that through the tying, Microsoft shields Internet Explorer from head to head competition with other browsers which is detrimental to the pace of product innovation and to the quality of products which consumers ultimately obtain. In addition, the Commission is concerned that the ubiquity of Internet Explorer creates artificial incentives for content providers and software developers to design websites or software primarily for Internet Explorer which ultimately risks undermining competition and innovation in the provision of services to consumers.

Apparently, Microsoft has 8 weeks to reply.

Microsoft’s initial press release notes that the Statement of Objections served by the Commission specifically states that the US settlement with the DOJ in 2002 (Wikipedia here) does not make the inclusion of Internet Explorer in Windows lawful under EU law.  Other than that it is fairly bland, as you would expect, stating that “We are committed to conducting our business in full compliance with European law.”

Read the Commission’s Press Release. Read Microsoft’s here or here.