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Question: Kirin Amgen - The End of Equivalents in England? (January 2009, International Review of Intellectual Property and Competition Law 40)

04 Oct 2022,12:04 AM

 

QUESTION 1

Nicky is a celebrity pop singer once known widely as “Classy Spice” now active in the fashion design industry. She has registered a Trade Mark for clothing in “Nicky”.

TOPCLASS is a large clothing design and retail company based in England. Without Nicky’s authorisation, TOPCLASS begins to sell T-shirts in their shops that bear Nicky’s likeness, a cartoon drawing of Nicky, which image TOPCLASS had commissioned from an artist. The commissioned image strongly resembles a cartoon of Nicky that was once widely used to promote her pop group, the Spice Chicks, but recognisably altered and exaggerated. The T-shirts are advertised as “TOPCLASS Unauthorised Nicky T-Shirts” and “TOPCLASS Unauthorised Classy Spice T-shirts” both in signs above the sales racks and in advertising in magazines, newspapers etc.

Nicky would like to stop this, and comes to you for advice on her legal options.

Advise Nicky.

 

QUESTION 2

In Kirin Amgen - The End of Equivalents in England? (January 2009, International Review of Intellectual Property and Competition Law 40), the former English High Court Judge Sir Hugh Laddie argued that Patents in English Law are inadequately protected. Following the judgment in Actavis v Eli Lilly (2017), Do you agree? Discuss with reference to suitable cases (including Kirin Amgen and Actavis), legislation, and other sources. There is a piece by Gowling WLG lawyers at https://www.lexology.com/library/detail.aspx?g=75e1ab43-76ec-470a-9675-8f4f0b809483 which you may find helpful.

 

Expert answer

 

Laddie's argument is based on the fact that, under English law, a patentee is only entitled to claim infringement if the accused product falls within the scope of the claims as literally construed. This means that, even if a product falls within the scope of the claims as "equivalents", it will not necessarily be found to infringe. In contrast, under US law (as well as the law of many other countries), a patentee is entitled to claim infringement if the accused product falls within the scope of the claims as "equivalents".

 

Laddie therefore argues that English law provides inadequate protection for patents, because it does not allow patentees to claim infringement in cases where the accused product falls within the scope of the claims as "equivalents".

 

However, following the judgment in Actavis v Eli Lilly, it is now clear that English law does provide adequate protection for patents. In this case, the UK Supreme Court held that a patentee can claim infringement if the accused product falls within the scope of the claims as "equivalents". This means that English law provides the same level of ...........................

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