A text transcription follows.
This transcript is for anyone with a hearing impairment or who for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew Magee.
Hello and welcome back to OUT-LAW Radio, where we hope to keep you up to date with the latest news and the most fascinating features from the world of technology law.
My name is Matthew Magee, and this week we hear about what's right and what's wrong with the latest pan-Europe patent proposal, and we go under the skin of the Tattoo Trade Mark Index.
But first, here are some of the top stories from OUT-LAW.COM, where you can read breaking technology law news throughout the week.
Activists create terms and conditions watch list
and
Pirates win EU parliament seat
A digital rights group has created an automatic system for tracking changes to website terms and conditions and privacy policies. The tool is designed to help users of websites to keep up to date with their rights and obligations.
The Electronic Frontier Foundation (EFF) is the digital rights advocacy group behind tosback.org, the tool that allows web users to see who is changing what. The EFF said that it created the site because many web users are ignorant of how much their behaviour is controlled by such policies.
Users can subscribe to an RSS feed which will automatically update them when there is a change to the terms and conditions of one of the organisations monitored. The list of monitored sites includes Facebook, Amazon, EBay, Google, MySpace, Twitter and YouTube.
A political party dedicated to legalising the sharing of copyrighted content without payment has won a seat in the European parliament. Sweden's Pirate Party won 7.1% of the Swedish vote, entitling it to send an MEP to the parliament.
In Germany the party won 0.9% of the vote, which will entitle it to state funding, a party statement said.
The party won the fifth-biggest share of the vote in Sweden and is yet to decide whom it will send to Brussels as its MEP.
"We have just written political history," said Rick Falkvinge, chairman of the party, in a statement.
"Politicians have learned that doing what the lobby asks will cost them their jobs. We're the largest party in the segment below 30 years of age. That's building the future of liberties."
Those were some of the top stories from OUT-LAW News.
For almost as long as European countries have banded together on economic issues, they have tried to find a way to manage patents on an international basis.
Creating a single system for managing and resolving patent disputes, though, has proved too big a challenge for Eurocrats, who have never found a way around the thorny problems of cost, patent translation and court structure.
Agreement is settling now, though, on a system that would allow for a single litigation process. Ministers of the EU’s member states two weeks ago agreed to ask the European Court of Justice if their latest plans for a pan-EU court system falls within EU law.
If this seems too good to be true then, perhaps, it is. Still, not everybody is happy, still, the old problems remain.
We talk to one British expert about the pros and cons of the proposed system. Vicki Salmon is the Chair of the Litigation Committee of the UK's Chartered Institute of Patent Attorneys. The CIPA gave a cautions welcome to the new plan and its progress, but it has some fairly serious questions and problems.
First, Salmon outlined why a system is needed at all. It all comes down to one simple factor: cost.
Vicki Salmon: You’ve got this background of a national patent system even though you are getting patents granted from the EPO. Then unless you can persuade a European Court you have to go after your opponent on a country by country basis trying to enforce your patent or to get rid of the opponent’s patent. And the litigation which we have chiefly seen going on country by country has tended to be pharmaceutical litigation, and that is quite expensive, and you have risks of different outcomes in different courts. So to try and get a bit more harmonization and more consistency is part of the drive because litigation is very time consuming and if you have to run three or four patent cases on basically the same set of facts but in three or four jurisdictions so that you’ve got three or four sets of lawyers all doing similar jobs and everything is having to be translated. I think to a business manager this must seem like a complete waste of money.
So what is the answer? There is wide agreement on the general shape and benefits of a single litigation system. Salmon outlines them.
Vicki Salmon: I think if you are a patent owner and you want to stop a competitor from infringing your patent in several countries then I think it is important that you can be able to treat Europe as a single economic zone and bring a single court case. If you are going to litigate in America you only need to bring one court case in one court, you don’t need to sue in each state in order to enforce your patent and I think it is important that Europe provides a similar facility to companies.
This, though, is where consensus ends. There remains a general problem, and one specific to the proposed new system. As always, language is the major hurdle. With 27 EU nations, what language should, say, a dispute fought in Germany between an English and a Polish company be conducted in?
It is a major hurdle, but Salmon says that a compromise is possible.
Vicki Salmon: I think that a European patent currently is prepared in a single language and the claims are then translated into French and German as part of producing the final granted European patent, and I think that the preferred position probably would be to take the language in which the patent was granted as the authentic text. And then there might need to be some compromise in terms of whether it was possible only to litigate in one language or whether you are going to have to translate everything into the language of the local court in which you are operating.
A more serious problem is quite specific to the proposed system, which would use three judges: two local to the country in which the case is being heard and one from an international pool.
Salmon says this ignores the fact that judges from different countries will have vastly different expertise and experience in patent matters.
Vicki Salmon: The aim is to try and have a pool of judges who have a lot of experience of patent matters and who will go and sit as judges in the courts of other jurisdictions. If the aim is to try and get harmonization and if you start with two local judges and one non local judge then I think we are concerned that two local judges particularly in a country which has not got much patent experience might mean that they produced a majority decision which was different from the pool judge’s decision and therefore it took longer to get a consistent body of law because you would need to appeal that to see which of them was correct.
The trouble is, says Salmon, that if inexperienced judges make a ruling it not only affects that one case, but will set a poor quality precedent across the entire new harmonised system. The damage this might do to the system could be enormous, she says.
Any new system could be risky, says Salmon. In the end, though, it is high time all of Europe had one way to settle patent fights, she believes.
Vicki Salmon: You never know whether any of these systems are going work until it is up and running and you can test it and see whether it works or not for your client, but you have to take a risk at some point and you have to say that we do believe that if we can get the system to work and it will work right it has got to be better than just staying with what we have got at the moment.
Advertisers, brand owners and marketers have, and always have had, a major problem: they have no idea if their promotions work. Did your product sell out last week because it's brilliant, because it was discounted or because you paid a footballer to advertise it? You will never know. As department store pioneer John Wannamaker famously said, "half the money I spend on advertising is wasted. The trouble is, I don't know which half".
Well, Australian Trade Mark lawyer Nick Weston may have come up with a novel way to assess the success of various brands: the Tattoo Index.
Melbourne-based Weston was curious about skin-based trade mark usage: did people get trade marks as tattoos? Which ones? Was it infringement?
Weston explains how he went about finding out.
Nick Weston: Well, I conceived of a survey of people who go and get registered trade marks tattooed on themselves and designed a questionnaire and people in my office rang some tattoo parlours in and around Melbourne. It was really just asking some tattooists whether they had ever tattooed registered trade marks or brands or logos onto someone’s body and if so which ones were popular and which age groups get them.
What Weston found was that getting trade mark tattoos was an almost universal practice.
Nick Weston: It was extremely widespread. The estimates ranged from two to five per cent of all of the tattoos that they do was usually among younger people 18-25.
Now, try and imagine what the brands that were most frequently requested were. The chances are you were right. With one iconic motorbike manufacturer at its head, the list was fairly predictable.
Nick Weston: Unsurprisingly the number one tattoo brand was Harley Davidson which I guess is because no one is going to wake up in 20 years time and wish they had a Kawasaki tattoo. The number two was Nike; because it is Australian there were a number of Australian football league club logos that were popular; couple of surprising results, Vegemite was number four, that is an Australian type of yeast extract spread which is popular with patriotic Australians but nobody else in the world seems to like it, Victoria Bitter, Disney characters, Holden, which is a local type of car here (it is a division of General Motors Ford), some motocross brands, Fox and Alpine Stars and a local radio station and the rest of the top 20 were effectively luxury brands like Louis Vuitton, Chanel, Coca Cola, a few brands of alcohol like Jack Daniels and Jim Beam, Mountain Dew, Qantas, Triumph motorbikes and a couple of brands of guitar, Gibson and Fender.
So the big question is: is getting a Harley tattoo trade mark infringement? Let's leave aside the question of who's going to serve a writ on a gang of bikers and just look at the legal question. Weston thinks: probably not.
Nick Weston: Not in Australia. In Australia it’s not use in the course of trade. It probably does infringe copyright law but some of the tattooists were aware of that issue and they said that they changed in slightly which was a little bit alarming because I wondered whether they meant they spelled it incorrectly or they drew it incorrectly.
That's all we have time for this week, thanks for listening. Why not get in touch with OUT-LAW Radio? Do you know of a technology law story? We'd love to hear from you on radio@out-law.com. Make sure you tune in next week but for now, goodbye.