AIPPI
not cooperated with customs authorities or complied with customs requirements; or
• Te destination of the goods is not declared or is inconsistent with customs documentation.
However, the mere possibility that goods might not reach the destination country and might be diverted into the market of the transit country are insufficient grounds to establish trademark infringement.
AIPPI also resolved that the burden of proof should lie with the owner or person responsible for the goods to demonstrate that the goods were not destined to enter the market of the transit country.
The interplay between design and copyright protection for industrial products
Tis question focused on the potential tension between the longer term of protection under copyright laws, compared to the more limited term of protection for design rights, in relation to products for which protection is available based on appearance, shape or ornamentation.
Some countries effectively allow copyright
protection only for three dimensional works of ‘fine art’, while others allow an industrial product the full term of copyright protection, provided the product displays at least some artistic effect.
AIPPI resolved that 2012 resolutions
In keeping with that mission, AIPPI studied a number of topical issues in 2012, and adopted related resolutions at the Seoul Congress.
The use of prosecution history in post- grant patent proceedings
In this question, AIPPI examined the circumstances in which it is appropriate to use the prosecution history of a patent in post-grant proceedings.
AIPPI resolved that the primary source for determining the scope of patent protection should be the words of the claims, in light of the description and the drawings, as those words would be understood by a person skilled in the relevant art. However, prosecution history may be taken into account in post-grant proceedings provided it is publicly available and sought to be relied upon by a party.
Prosecution history may be used to establish the meaning of ambiguously worded claims, but cannot support an interpretation broader than is justified by the meaning of a claim in light of the description and drawings in the patent.
10
Conversely, where the prosecution history clearly and unambiguously demonstrates that
the applicant disclaimed or abandoned
protection that would otherwise be included within the scope of a claim, that protection will be limited accordingly if relied on in post-grant proceedings.
Infringement of trademarks by goods in transit
Tis question examined treatment of goods in transit which fall within the scope of trademark protection in the country of transit.
AIPPI resolved that, as a minimum standard, goods in transit should fall within the trademark owner’s right to prevent others from importing trademarked goods where there is an indication that the goods may enter the market of the transit country. Tis may apply where:
• Te goods have been advertised or offered for sale in the transit country;
• Te owner or person responsible for the goods has a history of releasing infringing goods for sale in the transit country, or has
World Intellectual Property Review e-Digest 2013 copyright protection
should be available for industrial products provided the product has original artistic character. However,
copyright and design
protection may both be excluded insofar as the shape or appearance of the product is dictated exclusively by functional considerations.
AIPPI further resolved that where both copyright and design protection for industrial products is available, that protection should be cumulative, and the terms of protection should be independent of one another.
The relevance of traditional knowledge to IP law
This question concerned the variety of concepts conventionally grouped under the umbrella term ‘traditional knowledge’ (TK), and the extent to which those concepts should be recognised and protected by law. Subject matter may range from traditional medicinal knowledge to knowledge of
agricultural techniques, wildlife migration patterns,
traditional arts and crafts and spiritual beliefs.
Tere is a growing awareness of the value of TK by reason of its role in commercial applications
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