Showing posts with label databases. Show all posts
Showing posts with label databases. Show all posts

Friday, 25 October 2024

Estonia

Tallinn Old Town
(c) 2024 Jane Lambert: all rights reserved

 














Jane Lambert

Last week I visited Estonia and was immediately reminded of Wales.  It is another small country on the Western seaboard of the landmass of which it forms part.  It has a larger territory but a much smaller population than Wales.  Although almost everyone speaks fluent English and many Estonians also speak Russian, the country has its own euphonic language the use of which was discouraged for much of its history   Like Wales, Estonia has a strong choral tradition.  The events by which Estonia regained  its independence are called "the Singing Revolution." 

Estonia has been very successful in establishing and growing new businesses. Examples of Estonian companies that have become household names are Skype, Bolt and Starship Technologies.  Although I had come to Estonia primarily to watch ballet I was also on the lookout for pointers to Estonia's success.  In this article, I have gathered information and pointed to resources that might be of use to UK entrepreneurs.  I will leave it to readers to consider whether Estonia has any lessons for the UK or for any of its nations and regions.

Many of Estonia's new businesses are in such activities as software development, fintech, electronics and robotics.   Those activities require a highly developed digital infrastructure.  In an article for Wired dated 28 Oct 2016, Matt Reynolds described Estonia as "the world's most digitally advanced society." It launched the first 5G mobile network in 2020 and offers very fast broadband to homes and businesses throughout the country.  Those activities also require a highly educated workforce and perhaps another reason for Estonia's success is that it scores high marks consistently in the OECD's PISA (Programme for International Student Assessment) (see PISA 2022 results: Estonia’s education is the best in Europe  Invesr Estonia.  

Estonia is party to the European Patent Convention and has its own Patents Act which was enacted in 1994.  It is also party to the Paris Convention, Patent Cooperation Treaty, the Patent Law Treaty and TRIPs.  Estonia also protects inventions as unitiltu models under the Utilities Models Act 1994.  Other intellectual property statutes to be noted are the Trade Marks Act 2002, the Industrial Design Protection Act 1997, the Layout-Designs of Integrated Circuits Protection Act 1998 and the Copyright Act 1992 which also protects rights in performances and database rights,  Estonia has acceded to the Berne and Rome Conventions, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.  Geographical indications are protected by Regulation 2019/787 and Regulation 2024/1143.

The Estonian Patent Office at Tatari 39 in Tallinn keeps comprehensive databases of inventions, trade marks, industrial designs and geographical indications.  It also keeps a list of patent attorneys.  A service that sounds as though it would be very useful to startup founders and other small business owners is pro bono advice on patent and utility model applications by patent examiners between 15:00 and 17:00 on Tuesdays (see "Free Consultations" on the Patent Office website. 

Precedents for establishing, investing in and advising new businesses are available from the Startup Estonia page.  These include agreements for assigning and licensing intellectual property rights which I have reviewed and believe to be sound.   Non-residents of Estonia who want to incorporate and run a company in that country remotely can apply for a status called e-residency,  Successful applicants receive a digital identity which enables them to access many government and private services that would otherwise be reserved for Estonian nationals and permanent residents.

Estonia is a civil law country.  The court system is divided into civil and administrative law branches.  Civil courts determine commercial disputes in accordance with The Estonian Commercial Code.  The County Court is the court of first instance for all matters including intellectual property disputes.  According to Taylor/Wessing's Patent Map Estonia does not have a specialist patents court though, as I mention below, there is at least one County Court judge with patents expertise.  Typical costs of a patent trial where infringement and validity are an issue are €25,000 to €45,000,  Appeal lies to the Circuit Courts and ultimately the Supreme Court which is also a court of cassation.

Estonia has ratified the Unified Patent Court Agreement and has adapted the unitary patent (see the UPC Member States Map on the Unified Patent Court website).   Estonia falls within the Nordic-Baltic Regional Division of the Court of First Instance which also includes Sweden, Latvia and Lithuania.  Kai Härmand who is also a member of the Estonian judiciary sits in that Regional Division.  One of the hearing centres of the Nordic-Baltic Regional Division is in Tallinn at Lubja 4.

As far as I could judge prices in Estonia seem to be about the same as in the United Kingdom although hotels and restaurants in the old town can be expensive.  A good tip from a dancer friend is to eat in the food court of the Solaris shopping centre which is just across the road from the Estonian National Opera House.  That is where the locals eat.   I bought a very nourishing meal of chicken, chips and sparkling mineral water at The Lido for €6.80  before watching my friend dance in Cinderella.   I would never get away with that in Covent Garden.

Anyone wishing to discuss this article should call me on 020 7404 5252 during office hours or send me a message through my contact page.

Sunday, 17 January 2021

How Brexit has changed IP Law

 
EU Intellectual Property Office, Alicante
Author Kristof Roomp Licence CC BY 2.0














Jane Lambert

In Were we to go - what would Brexit mean for IP? (26 Feb 2016 NIPC Law) I first considered the consequences of Britsh withdrawal from the European Union.  It was obvious that EU trade marks, Community designs and Community plant varieties would cease to apply to the UK.  Also, I could not see how the UK could remain a party to the Unified Patent Court Agreement as the agreement was open only to EU member states. I considered the topic further in IP Planning for Brexit on 7 Dec 2016 in Implications of Brexit on Intellectual Property Law: What can be salvaged from the UPC Agreement on 17 Feb 2017 and in my contribution on IP to Helen Wong's Doing Business After Brexit.  As the UK has withdrawn from the EU and the transitional period is over, it is now possible to take stock. 

Art 50 Treaty on European Union ("TEU")

A timetable for the UK's departure was set by art 50 of the TEU.   Art 50 (2) requires the EU to negotiate and conclude an agreement with that departing state, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the EU.  Art 50 (3) adds:
"The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period."

The former Prime Minister, Mrs Theresa May MP, served notification of the UK's intended departure under art 50 (2) on 29 March 2017.  Subject only to the possibility of an agreed extension to the notification period, the British government had to try to negotiate a withdrawal agreement and legislate for the UK's departure before 29 March 2019.

European Union (Withdrawal) Act 2018

The statute that effected the UK's departure from the EU was the European Union (Withdrawal) Act 2018.  As EU law would cease to apply to the UK from the expiry of the notification period or the entry into force of a withdrawal agreement, s.3 (1) of the Act preserved Council regulations by incorporating them into the laws of the UK.  These included the Council Regulations establishing EU trade marks,  Community designs, Community plant varieties and supplementary protection certificates.   S.8 (1) and Sched. 1 of the Act enabled Ministers to amend such Regulations by statutory instrument.   

The 2019 Statutory Instruments

Since it was not certain that a withdrawal agreement could be made and ratified by the 29 March 2019, the following statutory instruments were made in case the UK left the EU without such an agreement:

The Patents (Amendment) (EU Exit) Regulations 2019 (SI 2019 No 801) were made on 4 April 2019 after an extension had been agreed in accordance with art 50 (3) TEU.   The Agricultural Products, Food and Drink (Amendment) (EU Exit) Regulations 2019 (SI 2019 No 1366) were made on 21 Oct 2019.

The Withdrawal Agreement

Following further extensions in accordance with art 50 (3) TEU, the appointment of a new prime minister and more negotiations with the EU  the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community ("the withdrawal agreement") was concluded on 19 Oct 2019.  That agreement was ratified by the European Union (Withdrawal Agreement) Act 2020 on 23 Jan 2020.

Title IV of Part Three of the withdrawal agreement included the following provisions on IP:
  • Art 54 provided for continued protection in the UK of intellectual assets that had previously been protected as EU trade marks, registered Community designs, Community plant varieties and geographical indications;
  • Art 55 established a procedure for registering trade marks, designs and plant breeders' rights to protect such assets in the UK;
  • Art 56 provided for continued protection in the UK of international trade marks designating the EU under the Madrid system and international designs designating the EU under the Hague Agreement;
  • Art 57 provided for continued protection in the UK of unregistered Community designs that would have come into being before 23:00 on 31 Dec 2020 for the remainder of their term and the creation of a similar UK intellectual property right to protect such designs that might come into being afterwards;
  • Art 58 required continued protection of databases;
  • Art 59 provided for pending applications for EU trade marks, RCD and Community plant variety rights;
  • Art 60 provided for supplementary protection certificates' and
  • Art 61 for the exhaustion of rights.
Although the UK left the EU on 31 Jan 2020 pursuant to the withdrawal agreement, art 126 provided for a transition or implementation period until 23:00 on 31 Dec 2020 during which time EU law would continue to apply to the UK.

The Intellectual Property (Amendment etc.) (EU Exit) Regulations 2020

Because of the extensions under art 50 (3) and the conclusion of a withdrawal agreement, the 2019 statutory instruments were not required until the end of the transition period.  As they had been drafted before the withdrawal agreement was concluded, they had to be modified to give effect to Title IV of that agreement.  The Intellectual Property (Amendment etc.) (EU Exit) Regulations 2020 (SI 2020 No 1050) amended the 2019 statutory instruments as follows:
  • Part 2 amended the Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019, 
  • Part 3 amended the Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2019, 
  • Part 4 amended the Trade Marks (Amendment etc.) (EU Exit) Regulations 2019, 
  • Part 5 amended the Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations 2019, and  
  • Part 6 amended the Patents (Amendment) (EU Exit) Regulations 2019.
Part 7 amended the Patents Act 1977 and Part 8 and the Schedule Council Regulation (EC) No 469/2009, Regulation EU) No 2019/933 and the Patent Rules 2007.

Implementation of Title IV

Title IV of the withdrawal agreement is implemented as follows:

EU Trade Marks: Reg 2 and Sched 1 of The Trade Marks (Amendment etc.) (EU Exit) Regulations 2019 as amended by The Intellectual Property (Amendment etc.) (EU Exit) Regulations 2020  implement the provisions of arts 54 and 55 of the withdrawal agreement relating to EU trade marks.  Sched. 1 of the Regulations inserts a new s.52A and Sched 2A into the Trade Marks Act 1994.  They require an existing EU trade mark to be treated as registered under the Act.  Para 2 provides an opt-out for those who do not want a national trade mark. Part 3 governs applications for European Union trade marks which are pending on 31 Dec 2018.  

International Trade Marks Designating the EU: Reg 6 of The Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations 2019 as amended implements art 56 of the withdrawal agreement by inserting a new s.54A and Sched 2B into the Act.  S. 54A provides for international trade marks designating the EU to be treated as though they had been registered under the Trade Marks Act 1994.  Sched 2B establishes a procedure for the registration of such marks as UK trade marks as well as certain other matters including an opt-out. 

Registered Community Designs:  Reg 5 and Sched. 3 of The Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations 2019 implement the provisions of arts 54 and 55 of the withdrawal agreement relating to registered Community designs.  Para 2 of Sched. 3 inserts a new s.12A and a new s.12B into the Registered Designs Act 1949.  Para 3 inserts a new Sched 1A and a new Sched 1B into the Act.  S.12A and Sched 1A provide for existing registered Community designs to be treated as designs registered under the 1949 Act. S.12B and Sched 1B provide for international designs designating the EU are to be treated as though they had been registered under the 1949 Act. 

Continuing Unregistered Community Designs:  Reg 4 (3) and Sched 2, of The Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations 2019 transpose into the laws of the UK the requirement in art 57 of the withdrawal agreement that designs that had been protected as UCD before the 31 Dec 2020 will continue to be protected afterwards. Any UCD that came into being before 23:00 on 31 Dec 2020 will continue to be protected in the UK for the remainder of its term as a “continuing unregistered Community design”.  Reg 4 (3) (a) and Part 1 of Sched. 2 of the 2019 Regulations anend the provisions of the Community Design Regulation that relate to unregistered Community designs.  Reg 4 (3) (b) and Part 2 of Sched. 2 further amend  The Community Design Regulations 2005 (SI 2005 No 2339).

Supplementary Unregistered Designs:  The obligation in art 57 of the withdrawal agreement to protect new designs having individual character that come into being after 23:00 on 31 Dec 2020 by a new UK intellectual property right to be known as the "supplementary unregistered design" is implemented by reg 3 and Sched. 1 of The Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations 2019.  Part 1 of Sched. 1 amends the Community Design Directive and Part 2 The Community Design Regulations.

Databases:  No new legislation was required to preserve The Copyright and Rights in Databases Regulations 1997 (SI 1997 No 3032) in accordance with art 58 of the withdrawal agreement, but that statutory instrument has been amended by reg 28 of The Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019.

Plant Varieties:  The requirement in art 54 (1) (c) of the withdrawal agreement that the holder of a Community plant variety right granted pursuant to Council Regulation (EC) No 2100/942 shall become the holder of a plant variety right in the United Kingdom for the same plant variety is implemented by reg 3 (2) of The Plant Breeders’ Rights (Amendment etc.) (EU Exit) Regulations 2019.  The Regulations revoke Regulation 2100/942 and provide for the registration of Community plant variety rights as UK plant breeders' rights and the processing of pending applications for Community rights. The statutory instrument also amends the Plant Varieties Act 1997 and regulations made under that Act.

Geographical Indications:  Art 54 (2) of the withdrawal agreement requires the UK to continue to protect protected designations of origin, protected geographical indications and traditional specialities guaranteed which are protected throughout the EU by Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ L 343, 14.12.2012, p. 1–29).  That requirement is implemented by The Agricultural Products, Food and Drink (Amendment) (EU Exit) Regulations 2019 (SI 2009 No 1366).  The regulations amend Regulation 1151/2012.  I discussed the UK scheme in Geographical Indications in the UK after 31 Dec 2020 in NIPC Law on 30 Sept 2020 and in The New Protected Food Names Scheme as it will apply in Wales on 26 Oct 2020 in NIPC Wales.

Supplementary Protection Certificates:   Such certificates protect the active ingredients of patented pharmaceutical or plant protection products. for up to 5 years (and in the case of products used to treat children's diseases an extra 6 months)  from the expiry of a patent for such a product. Art 60 (1) of the withdrawal agreement provides for Regulation (EC) No 1610/96 and Regulation (EC) 469/2009 to continue to apply to applications for SPCs lodged before 23:00 on 31 Dec 2020.  That provision is implemented by the incorporation of those regulations into the laws of the UK and their amendment by Part 6 and Part 8 of The Patents (Amendment) (EU Exit) Regulations 2019 as amended.   Further amendments have been made by The Intellectual Property (Amendment etc.) (EU Exit) Regulations 2020.

Exhaustion of Rights:  Art 61 of the withdrawal agreement is implemented by the Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2019 as amended by The Intellectual Property (Amendment etc.) (EU Exit) Regulations 2020.

The Intellectual Property Office's news story Intellectual property after 1 January 2021 summarize the changes brought about by this legislation.

Unitary Patent and Unified Patent Court

No provision was made for the unitary patent or the Unified Patent Court in the withdrawal agreement even though such a patent and court had been longstanding objectives of British diplomacy and London was to have hosted part of the Central Division of the Court of First Instance and had fitted out the accommodation for such a court at some expenses. For several years after the referendum, the government argued that it should be possible for the UK to participate in the project as the Unified Patent Court Agreement was an international treaty outside the scope of the European Union.   Mr Boris Johnson MP in his role as Foreign Secretary actually deposited an instrument of ratification of the Agreement on 26 April 2018 (see British Ratification of the UPC Agreement - Possibly the best thing to happen on World Intellectual Property Day  26 April 2018 NIPC News).  Less than 2 years afterwards the government changed its mind and withdrew from the project on 20 July 2020 (see Volte Face on the Unified Patent Court 29 Feb 2020 NIPC News and Unified Patent Court Ratification Bill clears Lower House of the German Federal Parliament  30 Nov 2020).

Trade and Cooperation Agreement

On 24 Dec 2020, negotiators for the European Commission and the British government concluded a Trade and Cooperation Agreement to govern the UK's future relationship with the EU.  The Agreement was ratified by the European Union (Future Relationship) Act 2020 on 30 Dec 2020.   Title V of Part Two of the Trade and Cooperation Agreement contained a large number of provisions relating to IP which I discussed in The IP Provisions of the EU-UK Trade and Cooperation Agreement on 30 Dec 2020.  However, none of those provisions appears to require implementing legislation for the time being and there was no mention of intellectual property in the Future Relationship Act.

Further Information

I intend to give a talk on these provisions over Zoom between 16:30 and 18:00 on Tuesday 26 Jan 2021.  This talk will be free but attendees should register in advance here.  Anyone wishing to discuss this article or any of its contents may call me on +44 (0)20 7404 5252 during normal office hours or send me a message through my contact form.

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