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CLE Course Materials Emily C. & John E. Hansen Intellectual Property Institute 27th Annual Intellectual Property Law & Policy Conference www.fordhamipinstitute.com Fordham Law School, New York, NY Thursday and Friday, April 25 – April 26, 2019 Hugh C. Hansen Director Learn Debate Have Fun ______________________________________________________ CONFERENCE PROGRAM Subject to Change Wednesday, April 24 Reception & Dinner for Faculty and Sponsors Reception: Bateman Room, Fordham Law School 6:15 PM to 7:30 PM Dinner: Costantino Room, Fordham Law School 7:30 PM to 9:30 PM Sponsored by: Allen & Overy LLP CLE Course Materials 1 Table of Contents Panel 3A: Google v. Oracle Oracle America, Inc. v. Google Inc. 872 F. Supp.2d 974 1. Speaker Biographies (view in document) (2012). (View in document) 2. CLE Materials Panel 3B: DMCA: 20 Years Later Charlesworth, Jacqueline C. Beyond the DMCA Safe Panel 1A: Key Current IP Issues: Reflections & Harbors: The Shifting Winds of Liability. Analysis (View in document) Arnold, Richard (Mr. Justice). Website-blocking injunctions and streaming server-blocking injunctions. Hartline, J. Devlin. Twenty Years Later, DMCA More (View in document) Broken Than Ever. Supporting Document. (View in document) Carson, David O. Copyright in the Supreme Court: Fourth Estate, Rimini Street, and What May Be Next Hartline, J. Devlin. Twenty Years Later, DMCA More (View in document) Broken Than Ever. (View in document) Panel 1B: IP – Past, Present & Future Panel 3C: EU Copyright Reform Fourth Estate Public Benefit Corporation v Wall- European Commission. Directive of the European Street.com, LLC, 139 S.Ct. 881 (View in document) Parliament and of the Council. (View in document) Panel 1C: Government Leaders’ Perspectives on IP Panel 4A: Artificial Intelligence United States Patent and Trademark Office: 2019 Revised Stephens, Katharine. Patentability of Artificial Intelligence Patent Subject Matter Eligibility Guidance and Machine Learning: The EPO Publishes Guidelines for (View in document) Examination. (View in document) Panel 2A: PTAB Panel 4C: IP in China Badenoch, George E. Standing, Privity and Estoppel in Stronski, Jim. China’s Economic Aggression Through the Inter Partes Review Proceedings. (View in document) Acquisition (or theft) of Foreign IP and DOJ’s China Initiative. (View in document) Bailey, Vanessa P. Fostering Innovation Through Patent Quality – The Corporate Perspective. (View in document) Sunrise Seminar 1: Alternative Dispute Resolution Bollinger, James Moore. Dispute Resolution: Alternative Martone, Patricia A. Recent Changes to PTAB IPR Frameworks. (View in document) Practice: How Far Do They Go And Who Do They Help?. (View in document) Supported Documents. (View in document) Panel 2B: Priority Sunrise Seminar 2: Live Streaming Piracy Boards of Appeal of the European Patent Office. Patent U.S. Government Publishing Office. Piracy of Live Sports Case. (View in document) Broadcasting over the Internet. (View in document) Panel 2C: 2nd Medical Use/Plausibility Sunrise Seminar 3: ICANN: Rights Protection Takeshi, Maeda. Infringement of Medical Use Claims in Mechanisms Japan. (View in document) Levine, Gerald. Evidentiary Demands in the UDRP Process Begin with the Complaint and Response. Grabinski, Klaus Dr.; Bundesgerichtshof, Judge (View in document) Infringement of Second Medical Use Patents in German Case Law. (View in document) Shatan, Greg. The Squared Circle: Fitting Trademark Law Principles into ICANN’s Rights Protection Mechanisms. Pegram, John B. Plausibility- An American View. (View in document) (View in document) Panel 5A: Biologics & Biosimilars Dagg, Nicola. The Patent Trials and Tribulations of Panel 8C: U.S. Patent Developments Launching a New Biologic Medicine. (View in document) Collins, Kevin B. U.S. Patent Developments. (View in document) Coggio, Brian D. Biosimilars: “The Patent Dance” “I won’t Dance/Don’t Ask me”. (View in document) Richards, John. Patent Law Developments. (View in document) Kato, Shimako. Reasonable Protection of Antibody Patents: The Right Balance Between Patentees and Panel 9A: U.S. Copyright Developments Competitors. (View in document) Allen v. Cooper, 895 F.3d 337 (2018). (View in document) Panel 5B: Patent Potpourri Panel 9B: Music Modernization Act Hahn, Tobias. Sales of Products Outside of Germany: Title 1- Music Licensing Modernization Bill. Liability of Foreign Suppliers According to German Patent (View in document) Law. (View in document) Panel 9C: Fair Use Goddar, Heinz. Practice, Pros and Cons of Bifurcation in Capitol Records, LLC v. ReDigi Inc., 910 F.3d 649 (2018). German Patent Litigation- the View of a Practitioner. (View in document) (View in document) Panel 10A: Iconic Brands: Trademark Law for the Few Panel 6A: FRAND Timmann, Dr. Tobias. Are There Specific Expectations to United States Department of Justice and United States the Principle of Trademark Exhaustion for Luxury Under Patent & Trademark Office. Policy Statement on Remedies EU Law? (View in document) for Standards-Essential Patents Subject to Voluntary F/RAND Commitments. (View in document) Panel 10B: EU Trademark Law Update Brinkman, Edgar. 15 Years Since Landmark ECJ Cases Panel 6B: International Copyright Post Office and Biomild: Where does that leave us? Ryden, Jerker. Copyright- Progression or Regression? (View in document) Does the existing copyright regime provide the incentive for a diverse and sustainable culture and strike an Nurton, James. Three CJEU Cases from 2018-19: Messi, adequate balance between the exclusive right and Mitsubishi and Koton. (View in document) exceptions and limitations. (View in document) Panel 10C: U.S. Trademark Law Update Panel 7A: Copyright Trademark Enforcement Marijuana Marks: The Struggle with the Lawful Use New Help for Copyright Lawyers? How the Federal Requirement. (View in document) Communications Act Should Transform Antipiracy Strategies in the IPTV and OTT Era. (View in document) Panel 7B: Multilateral Developments Weeraworawit, Chomwan. Geographical Indications and the Textiles Industry in Developing Countries: The Case for Multilateral Protection. (View in document) Panel 8A: Competition Delrahim, Makan. The “New Madison” Approach to Antitrust and Intellectual Property Law. (View in document) Panel 8B: Supplementary Protection Certificates Gray, Brian W. Patent Term Extension in Canada. (View in document) http://fordhamipinstitute.com/material/faculty‐bios‐4/ Website-blocking injunctions and streaming server-blocking injunctions Fordham Intellectual Property Law & Policy Conference 25 April 2098 (Mr Justice) Richard Arnold 1. The legislative basis for intermediary liability in the EU and UK European Parliament and Council Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (“InfoSoc Directive”) 8(3) Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right. Copyright, Designs and Patents Act 1988 (as amended in 2003) 97A(1)The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright. 1. The legislative basis for intermediary liability in the EU and UK European Parliament and Council Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights (“Enforcement Directive”) 11 … Member States shall also ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right … No UK legislative implementation 2. Website-blocking injunctions: the current position in England & Wales following Cartier v Sky • First injunction granted in 2011: 20th Century Fox v BT (Newzbin 2). • No appeal by ISPs or copyright holders on any point. • Subsequently injunctions granted in another 15 copyright cases against over 250 websites on unopposed applications. • Cartier v Sky was first application and injunction in trade mark case. • ISPs appealed against injunction to Court of Appeal and (on costs only) to Supreme Court. • Decisions of Court of Appeal and Supreme Court confirm the jurisprudence built up at first instance in copyright cases since 2011 save with respect to costs of implementation. 2. Website-blocking injunctions: the current position in England & Wales following Cartier v Sky • The courts of England & Wales have jurisdiction to grant website- blocking injunctions to combat trade mark infringement (and by implication any other IP right) despite the absence of legislative implementation by UK of third sentence of Article 11 of Enforcement Directive. • The Supreme Court held that the courts had this power applying ordinary principles of equity regardless of EU law: “orders for the disclosure of information are only one … category of order which a court may make against a third party to prevent the use of his facilities to commit or facilitate a wrong” (Lord Sumption). • The courts’ jurisdiction is adequately prescribed by law. 2. Website-blocking injunctions: the current position in England & Wales following Cartier v Sky • The threshold conditions for the grant of such an injunction are that (i) the defendants are intermediaries, (ii) the users and/or operators of the website are infringing the claimants’ IP rights, (iii) those users and/or operators
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