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BGH on enablement: disclosure may be enabling without being novelty destroying
 The American Ethicon, Inc. (part of the Johnson & Johnson group of companies) sued an unnamed defendant based on the German part of EP 337 612 before the Landgericht Düsseldorf. The patent in suit claims an improved stapler for internal organs, or rather an "improved pocket configuration for internal organ staplers" (this sounds very painful, somehow).
The alleged infringer counter-sued before the Bundespatentgericht (Federal Patent Court) for nullity of the patent based on lack of enablement and lack of inventiveness. The Federal Patent Court, in a decision of 2007, declared the patent (which has in the meantime expired) void for lack of enablement without addressing the inventive step issues.
In a decision of 13 July 2010 (just published) the Bundesgerichthof (Federal Supreme Court) reversed. It notes that the term "disclosure" has to be understood in context and based on its function. A disclosure is novelty destroying only if it clearly and unambiguously discloses the claimed invention. However, the specifications of a patent sufficiently enable the invention if the person skilled in the art is, based on his general knowledge and the disclosure of the patent, able to carry out the invention without inventive activity. This does not require that at least one embodiment of the invention is disclosed such that it would be novelty destroying for the invention (para. 17 of the decision). In other words: a disclosure may be sufficiently enabling for an invention without being novelty destroying for the same invention.
In the case at hand, the Bundesgerichtshof held that the patent was enabling and reversed the Federal Patent Court's decision. The case was (unusually) sent back to the lower court because it had not made any findings on inventive step, which was the second claimed ground for nullity.
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Monday miscellany
If you are sending the IPKat any documents that you are hoping he will use, can you please help him by making them as easily accessible as possible by not including them in copy-protected files from which it takes time and effort to re-type. Also, can you please check whether any links work before you send them in? Each time a link doesn't work, the Kat finds himself receiving all sorts of emails from readers who are either helpful or disgruntled and who, in each case, are entitled to receive an appropriate reply. Many thanks!
Looking for training points? Practitioners from England and Wales who need CPD can satisfy these needs in Oxford, where barrister Jane Lambert (NIPC) and solicitor Peter Groves (CJ Jones Solicitors LLP and IPso Jure) are presenting a series of four half-day seminars on the Wednesday afternoons in October designed particularly for non-specialist litigators and commercial lawyers but with enough detail to be useful to the IP fraternity, especially those looking for an introduction to a new field of IP law. The sessions, predictably, cover patents, copyright, trade marks and designs respectively, and cost £400 for the series or £120 individually (plus VAT in each case). They are accredited by the SRA for 3 hours CPD each, and IPReg rules provide that SRA accreditation is good enough for them, too. The seminars will take place at the Oxford office of Morgan Cole, avoiding the need to find your way into the city centre. Further details here.
Aroumd the blogs. The IPKat's recent plea for recommendations concerning good blogs covering film and media copyright has not turned up many suggestions -- but there have been a couple of good words put in for Entertainment Law Brazil, which is masterminded by Attilio Gorini and Rodrigo Borges Carneiro (Dannemann Siemsen). You can view it here. Another blog with which this Kat has recently become acquainted is Copyhype, by US blogger Terry Hunt. This blog caters for rather longer, more analytical posts. Meanwhile, congratulations are due to the IP Finance weblog, which has now notched up its 800th email subscriber. Well done! Contributors to the IP Finance weblog include two members of the IPKat team: Jeremy in quite a minor way and, more significantly, Neil.
One of the more unusual IP press releases of this year must surely be "PING Golf Announces Trademark Agreement With Apple" (here), describing how Ping and its parent company Karsten Manufacturing Corporation have struck a deal to let Apple use its PING trade mark in connection with the latter's iTunes Ping social music discovery feature. It sounded to the Kat as though there's not a vast degree of synergy between the two companies but that Apple was happy to pay to use a coveted name -- but then recalled that the Ping name was not unknown within the recorded music industry. Thanks, Nick Fenner (Shoosmiths), for the newsy link.
Peer-reviewed R&D document portal and meeting-point Boliven plans to launch a commercial subscription service from the middle of this month. Registration however remains free for now -- and free registered users will have around two weeks to try the service and opt in to an earlybird discount against their eventual subscription. So there is a window of a week or two now to try Boliven.com out for free and save cash off any eventual subscription..
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More on plagiarism
Further to IPKat team member Neil's post earlier today (here), and seeing as the weekend is almost upon us, here are some enjoyable themes for readers to contemplate.
1. Tom Lehrer's classic song 'Plagiarize' (you can listen here or read the lyrics here), summoned up from the depths of Tony McStea's memory, which contains the obviously relevant verse
Plagiarize
Let no one else's work evade your eyes
Remember why the good Lord made your eyes
So don't shade your eyes
But plagiarize, plagiarize, plagiarize
Only be sure always to call it please "research". 2. UniBergen's 5 minute masterpiece Et Plagieringseventyr (which you can watch here), drawn to the Kats' attention by University of Plymouth librarian and copyright guru Graham Titley.
3 In Praise of Plagiarism. Team member Jeremy has additionally unearthed In Praise of Plagiarism by Russell A. Hunt (St. Thomas University), which bears a notice that reads, "in-process draft, based on oral presentation. Please cite or quote from one of the published versions". Hmm.
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Plagiarism: do we know what it means, do we know why we need it?
 There are certain terms, frequently used in connection with IP matters, the meaning of which is utimately unclear. In my mind, no term better meets this description than "plagiarism" or "plagiarist". Try as I have, this Kat has never found the term defined in any statute -- nor I am familiar with any case law that has sought to explain it (I do recall that the Israeli Supreme Court used it, in a decision given many years ago, without however shedding any further light on its meaning). Nevertheless, the term has found its way into common and widespread parlance. Wikipedia offers the following observation:
"Plagiarism is not the same as copyright infringement. While both terms may apply to a particular act, they are different concepts. Copyright infringement is a violation of the rights of a copyright holder, when material protected by copyright is used without consent. On the other hand, the moral concept of plagiarism is concerned with the unearned increment to the plagiarizing author's reputation that is achieved through false claims of authorship." Then there are the following guidelines taken from plagiarism.org here, a site dedicated to preventing "plagiarism."
"What is Plagiarism? Many people think of plagiarism as copying another's work, or borrowing someone else's original ideas. But terms like "copying" and "borrowing" can disguise the seriousness of the offense: According to the Merriam-Webster Online Dictionary, to "plagiarize" means ? to steal and pass off (the ideas or words of another) as one's own; ? to use (another's production) without crediting the source; ? to commit literary theft; ? to present as new and original an idea or product derived from an existing source. In other words, plagiarism is an act of fraud. It involves both stealing someone else's work and lying about it afterward. But can words and ideas really be stolen? According to U.S. law, the answer is yes. The expression of original ideas is considered intellectual property, and is protected by copyright laws, just like original inventions. Almost all forms of expression fall under copyright protection as long as they are recorded in some way (such as a book or a computer file). All of the following are considered plagiarism: ? turning in someone else's work as your own; ? copying words or ideas from someone else without giving credit; ? failing to put a quotation in quotation marks; ? giving incorrect information about the source of a quotation; ? changing words but copying the sentence structure of a source without giving credit; ? copying so many words or ideas from a source that it makes up the majority of your work, whether you give credit or not (see our section on "fair use" rules). Most cases of plagiarism can be avoided, however, by citing sources. Simply acknowledging that certain material has been borrowed, and providing your audience with the information necessary to find that source, is usually enough to prevent plagiarism. " I thought about the uncertainty surrounding the meaning of the term in reading an article that appeared on 1 August in the New York Times. Entitled "Plagiarism Lines Blur for Students in Digital Age" and under the byline of Trip Gabriel here, the article described the purported challenges facing those who combat plagiarism, particularly in the university setting. The following sections of the article are noteworthy.
1. "... [M]any students simply do not grasp that using words they did not write is a serious misdeed. It is a disconnect that is growing in the Internet age as concepts of intellectual property, copyright and originality are under assault in the unbridled exchange of online information, say educators who study plagiarism." 2. "Perhaps more significant, the number who believed that copying from the Web constitutes ?serious cheating? is declining ? to 29 percent on average in recent surveys from 34 percent earlier in the decade." 3."In an interview, [Susan D. Blum, an anthropologist at the University of Notre Dame] said the idea of an author whose singular effort creates an original work is rooted in Enlightenment ideas of the individual. It is buttressed by the Western concept of intellectual property rights as secured by copyright law. But both traditions are being challenged. ?Our notion of authorship and originality was born, it flourished, and it may be waning,? Ms. Blum said. She contends that undergraduates are less interested in cultivating a unique and authentic identity ? as their 1960s counterparts were ? than in trying on many different personas, which the Web enables with social networking." 
Are you confused about the difference between copyright infringement, violation of moral rights, and plagiarism? If so, not to worry--so am I.
1. To the extent that plagiarism is about unauthorized copying of a protected text, then copyright law protects the rightsholder and any reference to plagiarism seems redundent and unnecessary. 2. Ditto for a violation of the right of attribution under moral rights. The fact that a country, such as the U.S., does not provide for a general right of attribution to authors of copyrighted works is a matter of legislative amendment or creative use of various common law rights regarding the relationship between a work and the identity of its creators.  3. Grounding plagiarism within the sphere of ethics and morality limits the potential force of its authority. Appeals to ethical justification to shape collective conduct is difficult at best, problematic at worst. Indeed, when data shows only minority support for condemning plagiarism, at least in some on-line settings, raises the question of the source and legitimacy of the ethical position itself.
4. Intertwining plagiarism within the canon of conduct of defined communities (such as academia) provides a limited solution for the legitimacy problem, but it is not a justification for positing a general prohibition against plagiaristic conduct, even assuming that a consensus could be found for the the meaning of the term. When all is said and done, however, I suspect that two things will remain to be true with respect to plagiarism. First, there will not be any agreement on the meaning of the term; and second, the term will nevertheless continue to be be used in various settings to achieve a variety of results.
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Friday fantasies
"This little piggy went to market;
This little piggy stayed at home.
This little piggy ate roast beef;
This little piggy had none.
But this little piggy ... went off to check the IPKat's Forthcoming Events sidebar and now he has registered for all sorts of exciting conferences and seminars and is really excited to be going to them ..." Be sure to check what's coming up! The autumn conference and seminar season is about to start, and there's bound to be plenty to entertain, educate and inform you! And, talking of forthcoming events, here are three conferences which are supported by the IPKat. In return for his support, the organisers have kindly agreed to offer a 10% discount on the registration fee to any reader of this weblog who quotes the special booking number which you can find in the side bar on the IPKat's front page, next to the conference to which it applies. The three events are
* IPR in China (22 and 23 November 2010)
* International Patent Litigation (6 and 7 December 2010)
* International Copyright Law (7 and 8 December 2010)
The UK's Intellectual Property Office is trawling for your views on another reference that has been made to the Court of Justice for a preliminary ruling: Case C-360/10 Belgische Vereniging van Auteurs, Componisten en Uitgevers (SABAM) v N.V. NETLOG. This is the question which the Court has been asked to consider:  "Do Directives 2001/29 and 2004/48, in conjunction with Directives 95/46, 2000/31 and 2002/58, construed in particular in the light of Articles 8 and 10 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, permit Member States to authorise a national court, before which substantive proceedings have been brought and on the basis merely of a statutory provision stating that: "They [the national courts] may also issue an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right", to order a hosting service provider to introduce, for all its customers, in abstracto and as a preventive measure, at its own cost and for an unlimited period, a system for filtering most of the information which is stored on its servers in order to identify on its servers electronic files containing musical, cinematographic or audio-visual work in respect of which SABAM claims to hold rights, and subsequently to block the exchange of such files?"
If you want to give the Office the benefit of your advice, you can email it here. You'll have to be quick, though. The closing date for the receipt of comments is Tuesday 7 September.
Around the blogs.
- The IPKat's friend Peter Bolam has asked him if he can recommend any blogs that are dedicated to film and media law. No such dedicated weblog springs into the Kat's mind, so he thought he'd ask his readers if they have any recommendations. If you can point to any, please let us all know by emailing the Kat here with the subject line "Filmmedia blog".
 "The shoes are original -- it's just the brands that are fake" is the title of a thoughtful and well-written IP Finance post by Miri Frankel that deserves a wider airing. You can read it here.- The thoroughly and unashamedly esoteric SPC Blog, which remarkably now has a cult following of over 860 email subscribers, was first off the blocks with this report on a little-known and probably destined to be little-read European Court of Justice decision concerning the extent to which accession states can tweak the single market concept for transitional purposes when deciding how to handle applications for supplementary protection certificates for pharma patents.
- The jiplp weblog's current list of articles in search of an author still has a few topics which have not so far been claimed. If you're looking for a topic to write on, check it out.
Last-minute registrants for next Tuesday's "How to Write an Effective IP Press Release" IPKat seminar (details here) should email IPKat team member Jeremy directly here.
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