Suchergebnisse

AbstractRepair, refill and recycle (in the following: repair) of physical goods is a necessity and a convenience – mending is better than ending, at least for the consumer. Where the goods to be repaired are patented, the question arises whether such act of repair infringes the patent, and under what conditions. There are different approaches by national courts on this matter, and it will eventually be the task – and the chance – of the Unified Patent Court to find its own solution to this issue. The author in this regard proposes a three-step test.

AbstractNow that the judgments in Servizio Elettrico Nazionale and Unilever have made sense of previous case-law, a unified analytical framework can be predicated for all exclusionary abuses. It is made up of two limbs (artificiality/conduct deviating from competition on the merits and potential exclusionary effect/capability of foreclosing). The two limbs are two sides of the same coin, which consists of ascertaining whether the plausible rationale (in the sense of nature and economy) behind a dominant company's conduct is to derive an advantage that equally efficient competitors cannot either derive by doing the same (first limb–artificiality) or offset by other means (second limb–potential effect). This exclusionary rationale, which is a cognitive state in the dominant company's mind rather than an ontological reality, is objectivised by holistically judging the dominant company's conduct against the backdrop of the relative efficiency of its competitors, which is the link between both limbs: if the inherent features of the company's conduct and all the relevant circumstances surrounding it allow equally efficient competitors to either derive a similar advantage or to defeat its exclusionary effect by some other means, the conduct does not make anticompetitive sense (exclusion is not its plausible rationale). Owing to the very Darwinian nature of competition law, relative efficiency is the common "quantum" and, therefore, a useful yardstick for abuse from the historical, legal, teleological and practical perspectives, as well as from the points of view of causality and reality. Finally, plausibility would be the single standard of proof that could be rebutted by disproving either of the two limbs (in an Intel II-like fashion), either by providing an alternative non-exclusionary explanation that breaks the casual link or by putting forward an objective justification. All other tests and standards merely reflect the extent to which either the artificiality or the potential effects of the conduct can be presumed based on economic judgement or experience (as happened in merger control following CK Telecoms)–thus reconciling per se rules, consisting of an Art. 101-like cursory analysis, with a more economic approach.

AbstractThis paper analyses the legal regime of parodistic work from an Italian and European copyright law perspective. Taking into consideration that the Italian Copyright Act does not contain any specific parody exception, the author maintains that parodistic works cannot fall within the scope of the quotation and criticism exception. Based on the fact that, as is well known, EU copyright law does not allow Member States and national courts to apply a general "fair use" doctrine to support the lawfulness of using another's work for parodistic purposes, it is argued that the use of a previous work to create a new parodistic work falls beyond the scope of copyright protection, and that the creation and commercialisation of a parodistic work cannot be prohibited by the author of the parodied work, since the former does not amount to an elaboration of the latter.

AbstractDespite decades of research and debate, the narrative that low-quality patents stifle innovation remains fraught with controversy. It is called into question because the term "patent quality" seems to be a potential misnomer, and reforms to improve patent quality are ineffective. The purpose of this study is to offer a comparative critique of the debate regarding patent quality in the European Union and the United States. It investigates five factors relating to the history of this debate, contested definitions, measurements of quality, proposals that are not implemented, and reforms that are implemented. The main contribution of this paper is to review how the debate has been constructed, indicating that certain arguments seem to talk past each other and consensus is hard to reach, that measurements are flawed, and that proposals and reforms seeking improvement seem to be treating the symptoms but not the disease. The study argues that the debate encounters a conceptual predicament characterized by substantively different conceptions of patent quality, which are influenced by differing normative expectations and assessments of patent systems. It transforms a potentially useful analytical concept into a rabbit hole. Any attempts to break the current impasse must begin with an appreciation of the different senses in which patent quality is used and an assessment of the legitimacy of their underlying normative frameworks.