Wikis are coming; Surgical patents - help please; Schwibbert - Katja rides to the rescue

Intellectual property wikis are the future, the IPKat is convinced. He feels that the versatility, speed and potential for development that wikis offer is far in excess of anything that many paper-based and even conventional online IP law products can offer.

Right: some things you can do with your law books once wikis have replaced them

Examples you can sample include Martin Farley's IPDailyUpdate and David Pearce's ukpatents wiki. If you'd like to join IPKat team blogger Jeremy, together with Martin, at 4.45pm (for a prompt 5pm start) till 6pm on Tuesday 10 July, for a chat about how wikis work, how easy it is to contribute to them and how great their potential can be, email Jeremy here and let him know. No previous knowledge or experience is needed: just an open mind and a willingness to use it. A venue in the Holborn area of London is being arranged and there is absolutely no charge for attending. See you there?


IPKat co-blogger Jeremy is currently involved in a little research project that requires, as a first step, the compilation of a bibliography consisting of (i) books, (ii) articles, (iii) decisions of national/regional courts and (iv) decisions of patent-granting authorities on the (non)patentability of methods of treatment by surgery, therapy or diagnosis as performed on the human or animal body - all of which are excluded from patentability under Article 52 of the European Patent Convention ... except when, it seems, when they are not.

Left: the IPKat and Merpel need to know - should their diagnostic techniques be patentable, and might they run the risk of infringing third party patents when they practise their life-saving arts? (poster available here)

He welcomes any suggestions of relevant and significant materials that he should take into account: just email him here, please, if you can recommend anything to add to his list.


The IPKat's friend Katja Weckström, from the University of Turku (right), has taken the trouble to send him this note on the Advocate General's Opinion in Case C-20/05 Schwibbert (noted here by the IPKat). She writes:

"The Italian copyright law no. 633 of 1941 created the public authority SIAE, a collective society. The same law penalises advertising and copying of copyright material, as well as requiring that the SIAE mark be affixed to products containing copyright material. By later amendment the duty to affix the SIAE mark was extended to other media. Criminal sanctions for breach of the duty are provided for in Law 121/87, Article 171 ter (c), which provide for imprisonment from 3 months to 3 years, and fines from 500,000 ITL to 6 million ITL.

Schwibbert was convicted for possession (note: no allegation of illegal copying) of CDs that lacked SIAE marking. The national court referred the question to the ECJ as to whether the national law was consistent with Articles 3 and 23-27 of the EC Treaty and directive 83/189/EEC (codified later in directives 98/34/EEC, 98/84/EEC, 98/1000/EEC and 2001/29/EEC) regarding the reporting of mandatory technical standards to the Commission.

The Advocate General first notes that the Italian law that mandates the use of the mark provides criminal sanctions for breach of the duty is unique in the EU. Most member states either only mandate the use of an equivalent mark on material containing legal copies of copyright material, and/or impose civil liability for infringement. (42)

Article 8 of Directive 98/34 provides that Member States must inform the Commission of technical standards that are required under national law. AG Trstenjak first considers whether the duty to affix the mark is a technical standard within the meaning of the directive. By reference to the court's judgment in BIC Benelux, where national law required all products to carry a product specification containing information on the environmental impact of the product, she concludes that the duty to affix the SIAE mark similarly constitutes a technical standard within the meaning of the directive, since it constitutes a threshold to the marketing of goods in the member state in question (43-46). Thus the Italian government was under a duty to report the standard to the Commission (49). From the failure of the Italian government to report to the Commission it follows that the Italian authorities cannot penalise Schwibbert for failing to comply with that duty under Italian law. (53). Under established EC law it further follows that a national court is obliged not to implement a provision which nullifies the obligation of the Member State to report to the Commission under a directive (55-56). AG Trstenjak advised the court accordingly".

Thanks so much Katja, says the IPKat, who has incidentally unearthed this excellent article, "Article 17 and the Scope of Trademark Protection Afforded under the TRIPs Agreement", written while she was at the Chicago-Kent College of Law.