A Primer on ACTA What Europeans Should Fear about the Anti-Counterfeiting Trade Agreement

The European Commission recently published the first official draft of the Anti-Counterfeiting Trade Agreement (ACTA). The article describes the institutional background of the negotiations on ACTA and its relationship to the existing legal framework. The civil enforcement provisions and the Internet chapter are compared with the international and European instruments in the field. For the most part, ACTA will not oblige EU member states to enact rules that go beyond the already established European standards. But stricter rules could be implemented regarding injunctions against non-infringing intermediaries, strict liability rules for damages, and ex parte measures in preliminary proceedings. According to the published draft, the termination of user accounts in the case of repeated intellectual property infringement will not be mandatory for member ACTA states.

The New Swiss Patent Ligitation System

Switzerland is about to implement a completely new patent litigation system, following the establishment of a new specialized federal patent trial court and the replacement of twenty-six cantonal codes of civil procedure with a single uniform federal code of civil procedure. This article provides an overview of the general structure and the most important features of the new patent litigation system that may be of interest to international patent litigants and litigators.

Swiss Patent Jurisprudence 2012

The new Swiss Federal Patent Court, with nationwide first-instance jurisdiction over all civil patent matters, has been operating since 1 January 2012. This article reviews and contextualizes the most important patent cases the Swiss Federal Patent Court and the Swiss Federal Supreme Court. It concludes that the revamped Swiss patent litigation system has the potential of turning Switzerland into a competitive venue for the adjudication of patent matters in Europe.

Cut Out By The Middle Man: The Free Speech Implications Of Social Network Blocking and Banning In The EU

This article examines social network users’ legal defences against content removal under the EU and ECHR frameworks, and their implications for the effective exercise of free speech online. A review of the Terms of Use and content moderation policies of two major social network services, Facebook and Twitter, shows that end users are unlikely to have a contractual defence against content removal. Under the EU and ECHR frameworks, they may demand the observance of free speech principles in state-issued blocking orders and their implementation by intermediaries, but cannot invoke this ‘fair balance’ test against the voluntary removal decisions by the social network service. Drawing on practical examples, this article explores the threat to free speech created by this lack of accountability: Firstly, a shift from legislative regulation and formal injunctions to public-private collaborations allows state authorities to influence these ostensibly voluntary policies, thereby circumventing constitutional safeguards. Secondly, even absent state interference, the commercial incentives of social media cannot be guaranteed to coincide with democratic ideals. In light of the blurring of public and private functions in the regulation of social media expression, this article calls for the increased accountability of the social media services towards end users regarding the observance of free speech principles

Socrates on the Moral Mischief of Misology

In Plato’s dialogues, the Phaedo, Laches, and Republic, Socrates warns his interlocutors about the dangers of misology. Misology is explained by analogy with misanthropy, not as the hatred of other human beings, but as the hatred of the logos or reasonable discourse. According to Socrates, misology arises when a person alternates between believing an argument to be correct, and then refuting it as false. If Socrates is right, then misanthropy is sometimes instilled when a person goes from trusting people to learning that others sometimes betray our reliance and expectations, and finally not to placing any confidence whatsoever in other people, or, in the case of misology, in the correctness or trustworthiness of arguments. A cynical indifference to the soundness of arguments generally is sometimes associated with Socrates’ polemical targets, the Sophists, at least as Plato represents Socrates’ reaction to these itinerant teachers of rhetoric, public speaking and the fashioning of arguments suitable to any occasion. Socrates’ injunctions against misology are largely moral, pronouncing it ‘shameful’ and ‘very wicked’, and something that without further justification we must ‘guard against’, maintaining that we will be less excellent persons if we come to despise argument as lacking the potential of leading to the truth. I examine Socrates’ moral objections to misology which I show to be inconclusive. I consider instead the problem of logical coherence in the motivations supposedly underlying misology, and conclude that misology as Socrates intends the concept is an emotional reaction to argumentation on the part of persons who have not acquired the logical dialectical skills or will to sort out good from bad arguments. We cannot dismiss argument as directed toward the truth unless we have a strong reason for doing so, and any such argument must itself presuppose that at least some reasoning can be justified in discovering and justifying belief in interesting truths. The relevant passages from Socrates’ discussion of the soul’s immortality in the Phaedo are discussed in detail, and set in scholarly background against Socrates’ philosophy more generally, as represented by Plato’s dialogues. I conclude by offering a suggestive list of practical remedies to avoid the alienation from argument in dialectic with which Socrates is concerned.

Causation and Harm in a Multicomponent World

On September 17, 2015, the Federal Circuit issued another decision in the epic Apple v. Samsung smartphone war. This was the fourth court decision in the ongoing saga to deal with injunctions. Apple IV explained the level of proof necessary to satisfy the "causal nexus" requirement. This requirement had emerged as a response to patent litigations involving products with thousands of features, the vast majority of which are unrelated to the asserted patent. To prove a causal nexus, patentees seeking an injunction have to do more than just show that the infringing product caused the patentee irreparable harm. The harm must be specifically attributable to the infringing feature. In Apple IV, the Federal Circuit noted that proving causation was "nearly impossible" in these multicomponent cases. So it decided to water down the causal nexus requirement saying that it was enough for Apple to show that the infringing features were "important"and customer sought these particular features. This lower standard is an ill-advised mistake that leaves multicomponent product manufacturers more susceptible to patent holdup. My critique takes two parts. First, I argue that a single infringing feature rarely, if ever, "causes" consumers to buy the infringer’s multicomponent products. The minor features at issue in Apple IV illustrate this point vividly. Thus, the new causal nexus standard does not accurately reflect how causation and harm operate in a multicomponent world. Second, I explain why the court was so willing to accept such little evidence of real injury. It improperly applied notions of traditional property law to patents. Specifically, the court viewed patent infringement as harmful regardless of any concrete consequences. This view may resonate for other forms of property where an owner's rights are paramount and a trespass is considered offensive in and of itself. But the same concepts do not apply to patent law where the Supreme Court has consistently said that private interests must take a back seat to the public good. Based on these principles, the courts should restore the "causal nexus" requirement and not presume causation.

Horizontal Innovation and Interface Patents

Scholars understandably devote a great deal of effort to studying how well patent law works to incentive the most important inventions. After all, these inventions form the foundation of our new technological age. But very little time is spent focusing on the other end of the spectrum, inventions that are no better than what the public already has. At first blush, studying such “horizontal” innovation seems pointless. But this inquiry actually reveals much about how patents can be used in unintended, and arguably, anticompetitive ways. This issue has roots in one unintuitive aspect of patent law. Despite the law’s goal of promoting innovation, patents can be obtained on inventions that are no better than existing technology. Such patents might appear worthless, but companies regularly obtain these patents to cover interfaces. That is because interface patents actually derive value from two distinct characteristics. First, they can have “innovation value” that is based on how much better the patentedinterface is than existing technology. Second, interface patents can also have “compatibility value.” In other words, the patented technology is often essential to make products operate (i.e. compatible) with a particular interface. In practical terms, this means that an interface patent that covers little or no meaningful advance can give a company the ability to extract rents and foreclose competition. This undesirable result is a consequence of how patent law has structured its remedies. For years patent law has implicitly awarded both innovation and compatibility values. Recently, the courts have taken a sensible first step and excluded compatibility value from reasonable royalty recoveries for standard essential patents. This Article argues that the law needs to go further and do the same for all essential interface patents. Additionally, patent law should reform the way it awards injunctions and lost profits to also exclude compatibility value. This proposal has two benefits. It would eliminate the incentives for wasteful patents on horizontal technology. Second, and more importantly, the value of all interfacepatents would be better aligned with the goals of the patent system.

Statement in opposition to the Substitute shipstead anti-injunction bill (S 2497) to the Judiciary Committee of the United States Senate /

"No. 449."

The Norris-LaGuardia act and the courts,

"Introduction [by] Judge Joseph Padway."

A study dealing with the extent and effects of the injunction in labor disputes in certain areas in New York State, submitted to U. S. Senate, Committee on Labor and Public Welfare.

Mode of access: Internet.

‘Death talk’, ‘loss talk’ and identification in the process of ageing

In this paper, we examine the injunction issued by the prominent politician, broadcaster and older people's advocate, Baroness Joan Bakewell, to engage in ‘death talk’. We see positive ethical potential in this injunction, insofar as it serves as a call to confront more directly the prospects of death and dying, thereby releasing creative energies with which to change our outlook on life and ageing more generally. However, when set against a culture that valorises choice, independence and control, the positive ethical potential of such injunctions is invariably thwarted. We illustrate this with reference to one of Bakewell's interventions in a debate on scientific innovation and population ageing. In examining the context of her intervention, we affirm her intuition about its positive ethical potential, but we also point to an ambivalence that accompanies the formulation of the injunction – one that ultimately blunts the force and significance of her intuition. We suggest that Gilleard and Higgs' idea of the third age/fourth age dialectic, combined with the psycho-analytic concepts of fantasy and mourning, allow us to express this intuition better. In particular, we argue that the expression ‘loss talk’ (rather than ‘death talk’) better captures the ethical negotiations that should ultimately underpin the transformation processes associated with ageing, and that our theoretical contextualisation of her remarks can help us see this more clearly. In this view, deteriorations in our physical and mental capacities are best understood as involving changes in how we see ourselves, i.e. in our identifications, and so what is at stake are losses of identity and the conditions under which we can engage in new processes of identification.

Da educação infantil ao ensino fundamental: o que contam as crianças sobre essa travessia na cultura de escola

From inquiries concerning the child as an individual with rights, this work takes as its object of study the perception of 5-7 years old children on their journey from kindergarten to elementary school, in a school culture. The objective of the research is, therefore, to investigate what the children tell in narratives drawn into a conversation circle about their experiences of school life in kindergarten and the first grade of elementary school. The participants were 18 children from a public school in the city of Natal (RN). Five rounds of conversation were held in which the children told a little alien, who was unaware of the school culture, what they knew about school and what they did at it. The research is linked to the project "Children's Narratives. What the children tell about childhood schools?"(Passeggi et all, 2011) and adopts epistemological principles and research methods of (auto)biographical education, taking as a working hypothesis the child's ability to reflect on their experiences and understand from their point of view, what happens to them. Analyses were organized based on the concept of school culture (Barroso, 2012). In the narratives of children, the three dimensions of school culture: the functionalist (purpose and rules), structural (structure and pedagogical organization) and the interactional (relations with others, with the spaces and with knowledge) are considered intertwined in their school perceptions and signal experienced tensions in a process of "conversion" from child to student. Children seem to realize the uniqueness of each level of education. They recognize as a characteristic of early childhood education the recreational activities, and as injunctions of the first year of elementary school the "study", "learning to read and write" to "be smart" to "change." The schooling will thus, constitute, in their eyes, as a time and a place where the children's culture gives way to school culture, and in this journey they experience that the desire to play and the duty/want to study cross the three dimensions of school. At the end of the journey, the status of children as cultural beings with rights is confirmed, whose narratives about school and about their experiences of "conversion" in a student, reveal much about the power of reflection on themselves, the school and the society in which they live, legitimizing their place in educational research and in child care policies.

Le cognitive enhancement en milieu universitaire : entre souffrance psychique individuelle, culture de performance et insécurités sociales

Ce projet de mémoire s’intéresse à la mise en relation du cognitive enhancement observé dans les universités occidentales contemporaines et de la société dans laquelle il s’insère. Nous avons voulu détacher la perspective du phénomène des analyses principalement orientées vers les programmes de sciences de la santé et de droit, ainsi que de l’approche quantitative, clinique, athéorique et somme toute moralisatrice qui lui est usuellement accordée afin d’explorer la nature des pratiques d’usages de psychotropes des étudiants universitaires en sciences humaines et sociales en vue d’augmenter leurs performances cognitives, d’approfondir la compréhension des raisonnements sous-jacents à ces pratiques, puis de resituer ces derniers dans leur contexte élargi. Nous avons interrogé treize étudiants de divers programmes de sciences humaines et sociales consommant, ou ayant déjà consommé, des psychotropes en vue de rehausser leurs performances cognitives en contexte académique. Les résultats suggèrent un écart dans la nature de leurs pratiques d’usage par rapport aux domaines d’études habituellement préconisés en ce sens qu’une grande variété de substances sont considérées comme supports cognitifs ; ensuite, que le recours aux psychotropes dans une visée de performance cognitive s’éloigne des logiques de la nécessité médicale et de la toxicomanie. En premier lieu, le cognitive enhancement est associé par plusieurs à une souffrance psychique liée à une perte de repères existentiels et les étudiants y ont recours dans une optique de compréhension de soi et de quête de repères dans un monde qu’ils ressentent comme instable. En second lieu, la consommation de psychotropes s’apparente davantage à un désir de satisfaire aux conditions incertaines et menaçantes des demandes externes de performance telles qu’ils les appréhendent qu’à un souci de soigner quelque condition médicale de la cognition. Nous pensons que le rapport au psychotrope qu’entretiennent les étudiants universitaires en sciences humaines et sociales s’insère en toute cohérence dans les discours et injonctions contemporaines de performance, en ce sens que leur souffrance psychique individuelle expose les limites de ce que la société attend d’eux.

Compulsory licensing of standard-essential patents and injunctive relief as abuse of dominant position in violation of Article 102 TFEU

When a dominant undertaking holding a standard-essential patent uses its exclusive right to the IP to seek injunctions against those wishing to produce either de jure or de facto standard compliant products, it creates a conflict between the exclusive right to the use of the IP on the one hand and the possible abuse of dominance due to the exclusionary conduct on the other. The aim of the thesis is to focus on the issues concerning abuse of dominance in violation of Article 102 TFEU when the holder of the standard-essential patent seeks an injunction against a would-be licensee. The thesis is mainly based on the most recent ECJ case law in Huawei and the Commission’s recent decisions in Samsung and Motorola. The case law in Europe prior to those decisions was mainly focused on the German case law from Orange Book Standard which provided IP holders great leverage due to the almost automatic granting of injunctions against infringers. The ECJ in Huawei set out the requirements for when a de jure standard-essential patent holder would not be violating Article 102 TFEU when seeking an injunction, requiring that negotiations in good faith must take place prior to the seeking of the injunction and that all offers must comply with FRAND terms, thus limiting the scope of case law derived from Orange Book Standard in Germany. The ECJ chose not to follow all of the reasoning the Commission had laid out in Samsung and Motorola which provided a more licensee-friendly approach on the matter, but rather chose a compromise between the IP holder friendly German case law and the Commission’s decisions. However, the ECJ did not disclose how FRAND terms themselves should be interpreted, but rather left it for the national courts to decide. Furthermore, the thesis strongly argues that Huawei did not change the fact that only vertically integrated IP holders who have made a FRAND declaration are subject to the terms laid out in Huawei, thus leaving non-practicing entities such as patent trolls and entities that have not made a FRAND declaration outside its scope. The resulting conclusion from the thesis is that while the ECJ in Huawei presented new exceptional circumstances for when an IP holder could be abusing its dominant position when it seeks an injunction, it still left many more questions answered, such as the meaning of FRAND and whether deception in giving a FRAND declaration is prohibited under Article 102 TFEU or not.

PROTECTING TRADE SECRETS IN LITIGATION - THE IMPACT OF ARTICLE 9 OF THE EU TRADE SECRET DIRECTIVE ESPECIALLY ON FINNISH LAW

In November 2013 the European Commission issued the “Proposal for a Directive on the European Parliament and of the Council on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure” (referred to as “TSD”). The TSD offers minimum harmonisation and aims at promoting sharing of knowledge, and the exploitation of innovations on the Internal Market. The European Parliament adopted the TSD on April 14, 2016 and the EU Member States will have two years to implement it. The TSD includes a harmonised definition of a trade secret that builds on the definition provided in Article 39 of the TRIPS Agreement. Moreover, it also ensures the freedom of expression and information and the protection of whistle-blowers. Appropriate means of actions and remedies against unlawful acquisition, use and disclosure of trade secrets are also included, such as provisional and pecuniary measures, injunctions and corrective measures or allocation of damages. This study examines the protection of trade secrets in the course of litigation regulated in Article 9 of the TSD. Currently, the protection of trade secrets within the EU is fragmented especially in this regard, which makes companies reluctant to resort to litigation when a trade secret has unlawfully been misappropriated or it is suspected that a trade secret is being misused. The regulations in Article 9 expand only to the hearing in court. Such protection is welcomed and a step in the right direction. However, in my study I have found that in order for the protection to be sufficient there is a need to further establish measures to protect trade secrets during the entire process, from the filing of the claim to the end when the judgement is given. Consequently, I also discuss different measures that could be used to strengthen the protection of trade secrets before the hearing in court, as evidence are gathered.