Impressions from China

I have passed the last week giving a seminar on patents in China, specifically in the province Jiangsu (which is why this blog was somewhat silent the last days).

The energy and speed of development in China is deeply impressing. Looking at the WIPO statistics on patents per capita, R&D expenditure etc, it is a common wisdom that China is rapidly approaching but still lagging behind the western industrial nations and Japan.

What I have now learned is that there are considerable differences within China. Looking at the Jiangsu province, the class leader amongst the chinese provinces, it appears that this province, which has a size comparable to Germany, has already almost caught up with us. In 2010, the roughly 90 Million inhabitants have filed 235873 patents (mostly design patents), 21,81% of which (almost 50000) are Invention patents and the courts have handled more than 4000 IP-related cases. Insiders say that these impressing numbers will increase by furhter 50% in 2011.

Rounding Off The Edge To Get Around Infringement

As discussed here, the roundness of the edges and the interface between the display and the bezel was a bis issue in the Apple v. Samsung desing infringement action at the Hagen District Court.

Samsung has now issued a new version of the Galaxy Tab - the Galaxy Tab 10.1N - wherein, as shown on the image obtained from cyberport.de, the bezel slightly reaches over the edge.

Memory

Memory is not only a famous song from the musical "cats" but furhter a well-known game (also known as concentration, Pelmanism, Shinkei-suijaku, Pexeso or simply Pairs) and - that is important here - a german trademark registered in the name of Ravensburger, a famous game manufacutrer. The registration applies to tangible games as well as to their computerized brethren.

Ravensburger has now sued Apple (as reported e.g. here)for trademark infringement by selling various games with names comprising "Memory" in Apple's AppStore.

Interestinly, the court reporter of the munich-based newspaper Süddeutsche Zeitung notes that the judge has indicated not to cosider the AppStore as a platform comparable to e-bay but rather as a real shop not entitled to any alleviation of liability. I think this could cause big headaches to Apple and other owners of App Stores operating worldwide.

Resist the Tempation BGH I ZB 21/11

I presume that every patent professional has already experienced the following tempting situation: your assistant prepares a letter to be signed on the last page and you find an error on page 1. In addition, you are - as always - in a hurry. Why not sign it and ask your assistant to replace sheet 1 with a corrected version?

In the decision I ZB 21/11, the attorney failed to resist this temptaion. He has allegedly remarked that the application was addressed to the wrong court and asked his assistant to correct this after signing - which she did not do as a consequence of the hectic pre-christmas season.

The request for restitutio in integrum failed because the attorney could have corrected the error immediately upon remarking it.

This is a deviation from the hitherto valid rule that the exercise of due diligence does not require controlling the correct execution of individual and specific directives given to assistants who had proven to be reliable before.

Rescue Where There Is No Remedy

I feel strangely attracted towards the hopeless cases and was really enthusiast readig this one.

The 35th senate of the Bundespatentgericht (newly responsible for utility models) had issued a cost order obliging the plaintigg to pay the entire costs. The order was not perfectly clear in the question whether it concerns the costs of both instances or only the 2nd instance and the defendant requested a clarifying correction of this point.

The request was granted and the corrected order was issued and the plaintiff immediately requested a withdrawal or re-correction of the correction by arguing that the corrected decision was based on a wrong application of the law.

Unsurprisigly, the senate rejected this request for correction because wrong application of the law does not qualify as an "obvious error" which might be corrected.

Interestingly, the senate interpreted the request as a "remonstrance" (Gegenvorstellung) under §321a ZPO, which is a legal construction wich - accordig to my knowledge - a never been applied in procedures before the Bundespatentgericht before.

Originally, this procedure is a means for self-correction of decisions by the court having issued the decision in cases where no other legal remedy exists and where it turns out that the court had violated the right to be heard such that this violation has an impact on the outcome of the decision.

However, the 35th senate argues that it is equally applicable in cases where no other legal remedy exists and the decision is "tangibly unlawful" (greifbar gesetzeswidrig).

The original decision can be read here.

Intellectual Property and the Kindergarten

After many quarrels about who determines the rules of their games (including who is the princess and who is the horse), my children have reported that they have now finally found a new rule making their Kindergarten life more peaceful: The one who has invented the game determines the rules. This made me think.

After a first attack of fatherly pride, I am now wondering whether this new rule really decreases the number of arguments or rather provokes new arguments on novelty, inventiveness and inventorship...