Digital Economy Act Looks Set to Stay

It is not often that this particular Kat stumbles into the realm of the Administrative sub-division of the High Court, however when the occasion demands he is ready to take one for the team and roll up his furry sleeves to get to work. As reported in most of the main news outlets this morning, the Administrative Court, wearing the face of Mr Justice Kenneth Parker, handed down its judgment yesterday in R (on the Application of British Telecommunications Plc & TalkTalk Telecom Group Plc) v The Secretary of State for Business, Innovation and Skills [2011] EWHC 1021 (Admin), concerning BT and TalkTalk's application for judicial review of the Digital Economy Act 2010. For those interested in the numbers, it took Mr Justice Parker just under 35,000 words, split into 265 paragraphs, to dismiss BT and TalkTalk's application on all grounds. The Kat hands over to the Department for Culture, Media and Sport, which issued the following press release:

"The High Court today ruled in favour of the Government in a judicial review of measures to tackle online copyright infringement in the Digital Economy Act. Mr Justice Kenneth Parker upheld the principle of taking measures to tackle the unlawful downloading of music, films, books and other copyright material. BT and TalkTalk had brought the judicial review, claiming that the measures in the Act were not compliant with EU law and were not proportionate. The judge rejected the challenge.

The judicial review also considered the statutory instrument that splits the cost of the Act’s mass notification system between rights holders and internet service providers. The judge ruled ISPs could be made to pay a share of the cost of operating the system and the appeals process but not Ofcom’s costs from setting up, monitoring and enforcing it. The Government will now consider changes to the statutory instrument.

The Government has asked Ofcom to review section 17 of the Digital Economy Act. Ofcom are assessing whether the Act’s reserve powers to enable courts to block websites dedicated to copyright infringement could work in practice. They are due to report to the Government shortly.

Responding to the judgement, a DCMS spokesperson said:

“We are pleased that the Court has recognised these measures as both lawful and proportionate. The Government remains committed to tackling online piracy and so will set out the next steps for implementation of the Digital Economy Act shortly.”"

Tuesday Tiddlywinks

Another dreary day in Londontown, but the IPKat Team is here to wish you a very happy day filled with intellectual property goodness.

US Supreme Court to hear Stanford v Roche patent fight: Yesterday the US Supreme Court justices agreed to hear Stanford University's claim against Roche Holding AG in respect of patents for methods of testing the effectiveness of AIDS treatments by measuring the HIV concentration in blood plasma. Scientists at Stanford created the invention while under a contract to promise to assign the inventions to the university. However, one of the inventors, Professor Mark Holodniy, had also, prior to the invention, actually assigned his rights in future inventions to Cetus (now Roche). Stanford filed a patent application and demanded a royalty from Roche for their use of the patent. The case reached the US Court of Appeals for the Federal Circuit (the appeals court where all the appealed patent cases go to from the federal district courts) who held that Roche was not liable for patent infringement because they held ownership rights derived from Holodniy's assignment. In their appeal to the Supreme Court, Stanford are arguing that because they were beneficiaries of federal funding for the research, under Sections 200-212 of the Bahy-Dole Act their rights trump that of Roche. The university's question to the Supreme Court reads as follows:

Whether a federal contractor university's statutory right under the Bayh-Dole Act, 35 U.S.C. §§ 200-212, in inventions arising from federally funded research can be terminated unilaterally by an individual inventor through a separate agreement purporting to assign the inventor's rights to a third party.

The US Department of Justice (DoJ) filed an amicus curiae brief in support of Stanford's writ and argue that the Bahy-Dole Act does indeed trump the general proposition that ownership of a patent vests first with the inventor. This case will be a somewhat obscure but important case for university and federally funded research institutions. The lesson being, make sure your researchers and scientists have entered into strict assignment agreements with your institution. Thanks to Dr. Ward for alerting the AmeriKat to this story.

UK MP to "bang heads" of ISPs and music industry: The UK Minister for Culture, Communications and Creative Industries, Ed Vaizey, (picture, left)has called for a joint meetin between music industry and ISP representatives to progress the implementation of the Digital Economy Act (DEA). Readers will note that the crucial piece to this legislative nightmare is Ofcom's final "Initial Obligations Code", which is still missing. Ofcom received a further three month extension for the Code in September to allow for consultation about its costs provisions with the EU. Judicial review of the DEA applied for by BT and TalkTalk is expected any time. For more information see this report from MusicWeek. This IPKat has searched online to find any further information about the agenda for this meeting without joy. If anyone has any info on this, please let the IPKat know.

Apple sues Motorola: This Kat has just given up trying to follow who is suing who in the mobile patent wars (see previous posts here). As of Friday, Apple has again gotten into the mix by filing two complaints (here and here) in the the US District Court for the Western District of Wisconsin against Motorola for infringement of a number of patents of its android handsets. The patents, for the most part, are for touchscreen technology. Motorola, maybe anticipating the descending cloud of Apple, filed four separate complaints against Apple as well as applying to the court to invalidate over 20 iPhone patents for want of novelty. It hasn't been a good month for Motorola who was on the receiving end of another lawsuit from Microsoft earlier last month. For more information see this report in the Wall Street Journal and CNet.

Court of Appeal Judgment Alert! Mr Justice Kitchen, sitting in the Court of Appeal with Lord Justice Jacob and Longmore, dismissed the appeal in the case of Softlanding Systems Inc v KDP Software Limited and Unicom Systems Inc ([2010] EWCA Civ 1172) last week. The case was on appeal from Mr Justice Wilcox of the Technology and Construction Court for England and Wales (see previous 1709 blog post by IPKat Jeremy). This Kat has not had an opportunity to digest the judgment, but there will be a full IPKat report on the judgment soon!