ENTREPRENEURSHIP & LAW eJOURNAL
Sponsored by the Kauffman Foundation
"Understanding the Jurisdiction of Pakistan's Specialized Courts for Intellectual Property Rights Enforcement"
FAISAL DAUDPOTA, Advocate High Court
On 01 October 2015, the Intellectual Property Organization of Pakistan confirmed through a press release that Pakistan’s Federal Government has appointed presiding officers to three Intellectual Property Tribunals (IP Tribunals) that have been set up pursuant to mandate of Intellectual Property Organization of Pakistan Act, 2012 (IPOPA’12). This certainly is a long-awaited development. That will improve intellectual property rights development in Pakistan, as well as a demonstration of pragmatism of Pakistan authorities.
This article provides an overview as to the jurisdiction that these IP Tribunals are to exercise in Pakistan. For convenient reading the body of this article has been arranged into nine parts as below. The first serves as the introduction to subject matter of this article, the second part in general terms lists the practical benefits of having IP Tribunals, the third part identifies the causes of actions that expressly have been included in the original jurisdiction of IP Tribunals, the fourth part analyses the causes of action that IP Tribunals can try in its capacity as a civil court, the fifth part alludes the causes of action that IP Tribunals can try in its capacity as a criminal court, the sixth part points out the causes of action that do not fall within the jurisdiction of IP Tribunals, the seventh part notes the thresholds as to transfer of pending cases to IP Tribunals, as well as to the appeals that can be preferred against the rulings of IP tribunals, the eight part described the powers and composition of IP Tribunals, and the final ninth part serves as the conclusion to this article.
"Standard Essential Patents and Their Competition Law Regulation - Discovering the Law, in the Realm of Inventions"
RAVIN KAPUR, Independent
Patent protection is the fruit of invention. Its commercial monetization drives the research and development machinery of various industrial establishments. Notwithstanding the monetary gain, an ‘invention’, serves a great social purpose by adding to the existing pool of technical knowledge.
In a highly technical industry, such as the telecommunications industry, the commercial viability of various technical products depends on their inter-operability across various platforms. In order to enable such inter-operability, common standards are developed through the process of ‘Standardisation’. Such technological standards are termed as ‘Standard Essential Patent’ (SEP) when they are given patent protection, for which there are no non-infringing alternatives. The terms of licensing of such patents are sought on principles which are Fair, Reasonable and Non-Discriminatory (FRAND Principles).
Once a patent is declared as Standard Essential Patent, it faces no competition from other patents until that patent becomes obsolete due to new inventions. Therefore, the only alternative is another Standard Essential Patent. Consequently, the Patent holder is a monopolist in its domain, holding absolute power. As power corrupts and absolute power corrupts absolutely, this absolute power of the Patentee needs to be regulated by effective regulatory machinery.
The legal discourse at present is centered on, as to which regulatory body would be the appropriate forum to regulate the conduct of such patentees. The jurisprudence regarding the appropriate forum is yet to be discovered and developed. The scope of this paper is circumscribed around the regulatory powers of the competition commission qua the Standard Essential Patent holders and how it can foster competition and curtail any abuse of dominance by such class of patentees.
"Life after Ridgely: While Some Contingency Fee Restrictions Have Been Lifted, Practitioners Should Be Mindful that Reportable Transaction Rules Apply"
Journal of Tax Practice and Procedure, Vol. 17, No. 5, 2015
CHARLES R. MARKHAM, Markham & Company LLC
The purpose of this article is to alert practitioners that despite the judicially enforced relaxation of the 10.27 restriction, another rule, the reportable transaction rule, has been applicable to any type of contingency fee arrangement and could become problematic if this failure to report is noticed by the IRS, presumably in an examination of the refund claim. While the reportable transaction rules regulate a number of aspects of tax shelter activities, this article will narrowly focus on one aspect of the reportable transaction rules. Namely, that under Reg. §1.6011-4(c)(4), nearly any contingent fee arrangement such as the type now legalized by the Ridgely decision will, nonetheless, be subject to the disclosure rules, and a Form 8886 must be submitted with the amended returns or the taxpayer (and possibly the preparer) could be subject to severe penalties.
"Image Rights: Exploitation and Legal Control in English and Hungarian Law"
CORINNA COORS, University of West London - Ealing Law School
PETER MEZEI, Institute of Comparative Law
In the past decades due to changed technical advances, features of the personality have become economically exploitable to an extent not previously known. Pop stars, TV celebrities as well as famous athletes have sought protection against the commercial use of their images, names and likenesses without their consent. Despite the economic value of personality and image rights, there is currently no international standard or agreed legal concept for recognizing an image right. While many jurisdictions, for example, the US, Germany, France and Hungary offer express statutory protection against the unauthorized commercial use of an individual's image by a third party in the context of publicity or personality rights, English law provides no cause of action for the infringement of image rights as such. Although a celebrity may currently obtain protection through various statutory and common law rights, such as the developing law of privacy, trade mark law breach of confidence and, in particular, the tort of passing off, none of these rights were designed to protect image or personality rights. In this context, this article explores the potentially enforceable rights, their benefits and practical strategies to protect name and image rights in the UK and Hungary.
"Does Antitrust Have a Role to Play in Regulating Big Data?"
Cambridge Handbook of Antitrust, Intellectual Property and High Tech, Roger D. Blair & D. Daniel Sokol editors, Cambridge University Press, Forthcoming
D. DANIEL SOKOL, University of Florida - Levin College of Law, George Washington University Law School Competition Law Center
ROISIN E COMERFORD, Wilson Sonsini Goodrich & Rosati
The collection of user data online has seen enormous growth in recent years. Consumers have benefitted from the growth through an increase in free or heavily subsidized services, better quality offerings, and rapid innovation. At the same time, the debate about Big Data, and what it really means for consumers and competition, has grown louder. Many have focused on whether Big Data even presents an antitrust issue, and whether and how harms resulting from Big Data should be analyzed and remedied under the antitrust laws. The academic literature, however, has somewhat lagged behind the debate, and a closer inspection of existing scholarly works reveals a dearth of thorough study of the issue. Commentators generally split into two camps: one in favor of more proactive antitrust enforcement in the Big Data realm, and one opposing such intervention, considering antitrust inappropriate for regulation of Big Data. The academic case for the former has not, as yet, been fully developed, and is relatively light at present. Meanwhile, policy-focused work by academics practitioners in this arena suggests that antitrust intervention in Big Data would be premature and misguided, especially considering the myriad pro-competitive benefits offered by Big Data.
In this handbook chapter, we review the scholarly work on the implications of Big Data on competition, and consider the potential role of antitrust in the regulation of Big Data. Part I provides an overview of current, scarce, academic literature specifically addressing the role of antitrust in Big Data issues. Parts II and III delve into the policy issues surrounding Big Data and whether it poses a risk to competition that warrants antitrust intervention. Part II details the ways in which Big Data may prove pro-competitive while Part III reviews and critiques the suggested potential harms to competition from Big Data. Part IV discusses the suitability of antitrust as the institutional choice for Big Data issues, and Part V concludes that, at present, antitrust is ill suited as the institutional choice. This conclusion is further born by the fact that thus far there have been no cases in the United States or Europe that have found Big Data itself to be a basis for a theory of harm on antitrust grounds for mergers or conduct cases. Further, the scholarly case for such harm has not yet been adequately established.
About this eJournal
Sponsored by the Kauffman Foundation
This eJournal distributes working paper and accepted paper abstracts in subject matters that concern how the law, broadly conceived, impacts entrepreneurship, small business, growth companies, entrepreneurship within large companies, and innovation policy generally.
The eJournal welcomes research not only on topics of regulation and public policy, but also the law of contracts, contract design, and informal relationships and networks that affect entrepreneurs and may substitute for legal contracts. Topic areas include contract design, judicial interpretation and enforcement of contracts, corporate law, partnership law and choice of entity, family businesses, franchising and joint ventures, intellectual property and licensing, small business regulation, securities law, bankruptcy, and social responsibility and sustainability. The Journal welcomes submissions from scholars in finance, economics, sociology, and other disciplines as well as legal scholars.
Editor: Victor Fleischer, University of San Diego
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