A UN Human Rights Council

Thanks to JURIST for this helpful overview of proposals for a UN Human Rights Council. Will it happen? Will it make a difference? Will there always be a question of enforcement? Any views most welcome!

Durant the next round: data protection goes to Strasbourg

Thanks to Out-Law for details of complaint to be made by Mr Durant to the European Court of Human Rights that a decision of the Court of Appeal interpreting the Data Protection Act, and the House of Lords' refusal of leave to appeal, breaches his rights to private life and correspondence (amongst others) under article 8 ECHR.

Mr Durant has been seeking information and documents from Barclays Bank, and both the bank and the FSA considered Mr Durant was not entitled to this under the DPA. The European Court of Human Rights is to be asked to consider whether these acts of courts of the UK means that the UK does not meet its obligations under article 8.

The question is interesting in itself - colleagues Lilian Edwards and Gillian Black have written on this elsewhere. Its also a reminder, if we explore further the role of human rights in IP litigation in national courts, that the logical conclusion could be Strasbourg.

Adbreak...Professor Gearty Lecture 24 February

We are delighted that Professor Conor Gearty of the London School of Economics will be giving a public lecture at the AHRC Centre, School of Law, Old College, Edinburh on Friday 24 February at 1pm. His topic will be "Can Human Rights Survive"

All welcome

The BLACKBERRY Wars

Thanks to Ed Foster at InfoWorld for this analysis of the BLACKBERRY wars. As well as a reminder that its not only IP lawyers who get excited about things like this, it is a good overview of the present position - says she having spent some time trying to figure it out...

For those of you who have been hiding, NTP hold patents over some technology used in the BLACKBERRY. In 2003, a Virginia District Court held that the maker of BLACKBERRY, Research in Motion (RIM) infringed these patents through the BLACKBERRY. An injunction was granted but has been stayed, pending appeals. The initial appeals process is now exhausted (but contrary comments welcome from US lawyers) when the Supreme Court declined to consider whether a US patent could be infringed by products used in the US, when the key relay station, which enables the BLACKBERRY to operate, was in Canada.

Two further twists in this - the relevant patents are presently being reexamined by the USPTO and present findings are that they are invalid - although RIM say that they will pursue this further. AND in the meantime, RIM have been continuing selling BLACKBERRY products which, it would seem, infringe (if the patents are valid).

The possibility of such products being shut down by an injunction is causing uproar (see comments in attached piece) not least in the Department of Justice. The DoJ has filed a brief with the Virginia Court concerned that an injunction would have significant impact on the ability of law enforcement and health workers to operate, given the now ubiquitous spread of the BLACKBERRY.

There is a hearing on 24 February and it will be interesting to see what the court does. RIM has said that it is prepared to settle, but will not pay as much as NTP seeks in royalties. RIM also claims to have developed a "workaround" software package (which would mean that the machine would no longer infringe) to be loaded on all new machines; and which could (if required, although RIM argue this should not be necessary) be distributed during a "grace period" to existing users. Remains to be seen what NTP and the court think about that...

Closer to home, RIM has had more success with the UK and German versions of a (different) patent owned by Inpro, which would impact upon the BLACKBERRY operation, being held invalid.

So all in all, pretty messy. I think that critics of patent systems, and advocates of a new approach should read (and I know many do) such cases to be reminded of how things really work. This is patent law in action. And unless there is more direct scope for competition law questions - but can you really say a BLACKBERRY is an essential facility - or human rights questions (of emergency service workers and users but possibly also of large corporations to do business efficiently?) to be taken into account in patent infringement actions this will continue to be so. RIM have been aware of this since at least 2003. IF NTP's patents are valid, should they suffer because of the interim growth of BLACKBERRY? Or who should pay?

WIPO Development Ddevelopment Agenda Meeting - documents

Following from last post, here is the (skeletal) agenda for the meeting, together with submitted documents. These are from Colombia, US, Chile, and Argentina (and others).

Although the documents do indeed reflect a broad range of interests and perspectives, there are common themes - delivery of knowledge and technology transfer, encouragement of development and competition, involving other international organisations and civil society in the debate.

As ever, the key will be the detail: precisely what mix is chosen, and what interests drive this. The contributions from Chile and Argentina both call in some detail for new perspectives and studies on how best to proceed in the future of IP. What impact will this have?

WIPO Development Agenda - developments?

The Provisional Committee on Proposals for WIPO Development Agenda is meeting this week. Thanks to IP Watch for this and other updates on this topic.

It looks like the battle lines remain drawn: previous proposals from the US and Colombia focussed on provision of further technical assistance to developing countries, on the basis that IP was per se a good thing, and in the interests of development. These most recent contributions suggest that this remains far from accepted by developing nations and activists - with particular focus being placed on the need for a human rights approach to IP.

If these entrenched positions continue little seems likely to be achieved. However, movement to such an agenda is marked progress - so perhaps shouldn't be overly negative at this stage.