Subjects -> PATENTS, TRADEMARKS AND COPYRIGHTS (Total: 28 journals)
Showing 1 - 9 of 9 Journals sorted alphabetically
Berkeley Technology Law Journal     Free   (Followers: 15)
Expert Opinion on Therapeutic Patents     Hybrid Journal   (Followers: 9)
Fordham Intellectual Property, Media and Entertainment Law Journal     Open Access   (Followers: 17)
GRUR International     Full-text available via subscription  
IIC - International Review of Intellectual Property and Competition Law     Hybrid Journal   (Followers: 24)
International Data Privacy Law     Hybrid Journal   (Followers: 27)
International Journal of Innovation Science     Hybrid Journal   (Followers: 9)
International Journal of Intellectual Property Management     Hybrid Journal   (Followers: 26)
Invention Disclosure     Open Access   (Followers: 1)
IP Theory     Open Access   (Followers: 10)
JIPITEC Journal of Intellectual Property, Information Technology and E-Commerce Law     Open Access   (Followers: 21)
John Marshall Review of Intellectual Property Law     Free   (Followers: 8)
Journal of Copyright in Education & Librarianship     Open Access   (Followers: 29)
Journal of Data Protection & Privacy     Full-text available via subscription   (Followers: 5)
Journal of Intellectual Property Law & Practice     Hybrid Journal   (Followers: 25)
Journal of Intellectual Property Rights (JIPR)     Open Access   (Followers: 22)
Journal of Knowledge-based Innovation in China     Hybrid Journal   (Followers: 4)
Law, State and Telecommunications Review     Open Access  
Marquette Intellectual Property Law Review     Open Access   (Followers: 13)
Northwestern Journal of Technology and Intellectual Property     Open Access   (Followers: 7)
Reports of Patent, Design and Trade Mark Cases     Hybrid Journal   (Followers: 5)
Revista La Propiedad Inmaterial     Open Access  
The Journal of World Intellectual Property     Hybrid Journal   (Followers: 22)
World Patent Information     Hybrid Journal   (Followers: 15)
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IIC - International Review of Intellectual Property and Competition Law
Journal Prestige (SJR): 0.28
Number of Followers: 24  
 
  Hybrid Journal Hybrid journal (It can contain Open Access articles)
ISSN (Print) 0018-9855 - ISSN (Online) 2195-0237
Published by Springer-Verlag Homepage  [2469 journals]
  • “Truck Cartel II (LKW-Kartell II)”

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      Abstract: The empirical principle that market prices achieved within the framework of a cartel are on average higher than those that would have applied without the agreement restricting competition must also be applied when manufacturers agree on the list prices of a product, if the list prices form the basis of pricing at the manufacturer level and list price increases are indicative of cost increases in production for the manufacturers’ distribution companies not participating in the cartel or their independent dealers selling products who agree the transaction prices with the customers. In the case of cartel damages claims, for which the limitation period is suspended due to the initiation of proceedings by the European Commission for a cartel infringement pursuant to Sec. 33(5) Act against Restraints of Competition 2005, the six-month period of Sec. 204(2) of the German Civil Code does not begin with the notification of the penalty notice, but with the expiry of the time limit for bringing an action for annulment pursuant to Art. 263(4) Treaty on the Functioning of the European Union.
      PubDate: 2022-05-09
       
  • IP in Times of Climate Crisis – A Problem or a Solution'

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      PubDate: 2022-05-02
       
  • “Austro-Mechana v. Strato”

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      Abstract: Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the expression ‘reproductions on any medium’, referred to in that provision, covers the saving, for private purposes, of copies of works protected by copyright on a server in which storage space is made available to a user by the provider of a cloud computing service. Article 5(2)(b) of Directive 2001/29 must be interpreted as not precluding national legislation that has transposed the exception referred to in that provision and that does not make the providers of storage services in the context of cloud computing subject to the payment of fair compensation in respect of the unauthorised saving of copies of copyright-protected works by natural persons, who are users of those services, for private use and for ends that are neither directly nor indirectly commercial, in so far as that legislation provides for the payment of fair compensation to the rightholders.
      PubDate: 2022-04-28
       
  • “Spinnin Records”

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      Abstract: The test of Art. 25f(2) Copyright Act – which stipulates that a provision is voidable if unreasonably onerous for the author – should be lighter than under Art. 6:2 of the Civil Code. The test of Art. 25f(2) Copyright Act involves examining the facts that prevailed before or at the time of the conclusion of an agreement (ex tunc), not applying to facts that postdate the conclusion of a contract. The assessment of whether the application of a term is unacceptable according to standards of reasonableness and fairness, unlike the assessment of whether a provision is unreasonably onerous within the meaning of Art. 25f(2) Copyright Act, may also take into account facts that postdated the conclusion of the contract, such as the way in which the agreement was implemented. The production is central to the definition of “phonogram producer” (Art. 1(d) Law on Related Rights). The person who undertakes the organization of the first recording and is financially responsible for it is to be regarded as the phonogram producer. Such can be, as is the case here, a DJ. […]
      PubDate: 2022-04-28
       
  • Main Contents and Comment on the Invention Law of the Democratic
           People’s Republic of Korea

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      Abstract: Abstract On 20 January 2021, the Invention Law of the Democratic People’s Republic of Korea was amended and supplemented by the Presidium of the Supreme People’s Assembly of the DPR Korea. The law defines the system and orders governing the application, examination and protection of patents and inventor’s certificates. The law provides a domestic legal guarantee to promote the development of science and technology of the country and encourage economic development in conformity with the requirements of international patent-related treaties. The paper provides a summary description and analysis of the DPR Korean invention law with an eye to patent-related multilateral treaties to which the country has acceded, patent-related documents of the WIPO and other countries’ patent laws.
      PubDate: 2022-04-26
       
  • “Fenicia”

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      Abstract: With the “lump-sum-method”, damages for loss of profits may be determined with reference to a “fair mutually agreed price” (i.e. a sum not less than the reasonable royalty rate or fee that the infringer would have had to pay for a hypothetical licence granted to it by the right holder). The “reasonable royalty” criterion of Art. 125(2) Industrial Property Code (IPC) is a purely virtual consideration, which constitutes ex lege a mandatory minimum. The “reasonable royalty” criterion for quantifying damages concerns only loss of profits and not any other indemnifiable elements of the damage. The damage from a [in this case: trademark] infringement cannot be considered in re ipsa and therefore does not exempt the injured party from the burden of proof. Although the rule laid down in Art. 125(2) IPC may constitute a method for quantifying damages ex aequo et bono, by means of the criterion of the “fair mutually agreed price”, intended to ease the burden of proof of the plaintiff, no such quantification can be made on the basis of an abstract assumption of through the automatic application of that criterion. Even this method of quantification requires the application of Arts. 1223 et seq. Civil Code and cannot therefore dispense with proving an adequate causal link between the unlawful act and the damage suffered and reported. Damage for which compensation is payable is similar to, but does not overlap with, “competitive harm” from the point of view of unfair competition, since for the purposes of the latter, the abstract potential to cause harm is sufficient, whereas for the purposes of compensation due to a [in this case: trademark] infringement, the market factors must actually be altered.
      PubDate: 2022-04-13
       
  • “COPERSUCAR”

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      Abstract: As the Brazilian Law for the Protection of Plant Varieties does not regulate the limitation period for actions for the collection of royalties and does not provide for any other fallback regulation, the Civil Code applies. However, this does not mean that the general limitation period of the Civil Code (Art. 205) should be applied, but rather that the regulations of the Civil Code must be applied. It is only where there is no specific rule in the Civil Code that the general ten-year period will apply. The licensing agreement must describe the object and the limits of the use authorisation, the form of calculation and the method of payment of the consideration. There is more than one way of calculating the value of the consideration for use of a plant variety: taking into account the duration of use, the area planted, or the volume, which may be in units, kilograms or litres. In the latter cases, settlement of the obligation will depend on the information provided by the licensee regarding the quantities used to make up the amount due under the agreement. Claims for collection of net debts resulting from a private instrument lapse after the five-year period set out in Art. 206(5)(I) of the Civil Code.
      PubDate: 2022-04-11
       
  • “Influencer II”

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      Abstract: The provisions of Sec. 6(1) No. 1 Telemedia Act for commercial communication in telemedia, and Sec. 58(1) first sentence Interstate Broadcasting Treaty and Sec. 22(1) first sentence Interstate Media Treaty for advertising in telemedia, are sector-specific provisions concerning market conduct in telemedia. The media law value decisions expressed in these special provisions must not be undermined by the application of the unfair competition law general provision of Sec. 5a(6) Act against Unfair Competition (continuation of decision of the Federal Supreme Court, 24 March 2016 – I ZR 7/15, GRUR 2016, 1068 para. 20 = WRP 2016, 1219 – Textilkennzeichnung). The criterion of financial return provided for in Sec. 6(1) No. 1 Telemedia Act for commercial communication in telemedia and in Sec. 58(1) first sentence Interstate Broadcasting Treaty and Sec. 22(1) first sentence Interstate Media Treaty for advertising in telemedia only applies to promotional practices for the benefit of third parties, but not to self-promotion.
      PubDate: 2022-04-11
       
  • “Renaissance”

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      Abstract: Insofar as Sec. 29(2) of the Trade Mark Act (TMA) is concerned, it is sufficient that any of the conditions as provided in clauses (a), (b) or (c) is satisfied. In case of an eventuality covered under Sec. 29(2)(c) of the TMA, and in view of the provisions of Sec. 29(3) of the same act, it is to be presumed that it is likely to cause confusion on the part of the public. In order to avail the benefit of Sec. 30 of the TMA, apart from establishing that the use of the impugned trade mark was not such as to take unfair advantage of or is detrimental to the distinctive character or repute of the trade mark, it is also necessary to establish that such a use is in accordance with the honest practices in industrial or commercial matters.
      PubDate: 2022-04-07
       
  • Robustness Check: Evaluating and Strengthening Artistic Use Defences in EU
           Trademark Law

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      Abstract: Abstract The 2015 EU trademark law reform introduced a peculiar rule for reconciling trademark rights with freedom of artistic expression. According to Recital 21 EUTMR and Recital 27 TMD, artistic use can be deemed fair as long as the artist ensures compliance with “honest practices in industrial and commercial matters”. The honest practices proviso forges a link with the provisions on limitations of trademark rights. Article 14(1) EUTMR and Art. 14(1) TMD exempt from the control of trademark proprietors several types of use that can allow for artistic use. All these limitations, however, apply only when the use satisfies the test of honest practices. Confirming the obligation to comply with honest practices in industrial and commercial matters, the fairness rule of Recital 21 EUTMR and Recital 27 TMD turns out to be a double-edged sword. Instead of readily immunizing artistic use against trademark claims, it obliges artists to rely on limitations of trademark rights and furnish corresponding proof. Moreover, artists are expected to align their artistic activity with behavioural standards in the field of industry and commerce – a realm that is alien to the artistic community. Evidently, this approach endangers artistic autonomy. To avoid detrimental effects on artistic expression, it is advisable to strengthen the position of artists and develop a legal solution that resembles the measures taken in Art. 9(3)(f) EUTMR and Art. 10(3)(f) TMD with regard to freedom of commercial expression. Drawing inspiration from cultural sciences and case law on both sides of the Atlantic, the analysis explores avenues for achieving this goal.
      PubDate: 2022-04-07
       
  • “Influencer I”

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      Abstract: If a plaintiff association for the promotion of fair competition takes action against commercial practices of the defendant for the benefit of the latter’s own business as well as that of third-party businesses, the plaintiff must have both a considerable number of members who are in a competitive relationship with the defendant within the meaning of Sec. 8(3) No. 2 Act against Unfair Competition and members who are in a competitive relationship with the promoted third-party businesses. An influencer who offers goods and services and promotes them through her presence in social media (here: Instagram) regularly engages in commercial practices for the benefit of her own business with her posts published in this manner. If an influencer receives consideration for a promotional post in social media, this publication constitutes a commercial practice for the benefit of the promoted business. If an influencer does not receive any consideration for a post containing a reference to a third-party business published in social media, this publication constitutes a commercial practice for the benefit of the third-party business if the post is excessively promotional in the light of its overall impression, i.e. if it contains a promotional excess so that the promotion of a third-party’s competition plays a greater role than merely a necessarily accompanying one (continuation of decision of the Federal Supreme Court, 9 February 2006 – I ZR 124/03, GRUR 2006, 875 para. 23 = WRP 2006, 1109 – Rechtsanwalts-Ranglisten). Whether a post by an influencer in social media contains the promotional excess necessary for the assumption of a commercial practice for the benefit of another business is to be assessed on the basis of a comprehensive assessment of the entire circumstances of the individual case, taking into account the interaction of the presentation features (e.g. posted product photos, editorial context, linking to websites of third-party businesses). The fact that the influencer added “tap tags” to images in order to designate the manufacturers of the depicted goods is not in itself sufficient to assume a promotional excess of the Instagram posts. A link to a website of the manufacturer of the product depicted, on the other hand, as a rule contains a promotional excess, even if the purchase of products is not directly possible on the manufacturer’s linked page. The reference to the commercial intent of a commercial practice required under Sec. 5a(6) Act against Unfair Competition must be made so clearly that it is obvious at first glance and beyond doubt from the point of view of the consumer who is reasonably well informed and reasonably observant and circumspect and who belongs to the group addressed. The reference to the commercial intent appearing in the text part of a post published in social media is as a rule not sufficient to identify the commercial intent of a “tap tag” appearing on the image placed next to the text as being promotional. The commercial intent of an influencer’s advertising post published in social media for the benefit of a third-party business within the meaning of Sec. 5a(6) Act against Unfair Competition does not result directly from the fact that the influencer acts not only for purely private purposes but also for the benefit of her own business. It is not sufficient that some commercial intent of whatever kind is apparent to the addressees from the circumstances; instead, the commercial intent pursued with an act of communication must be recognisable. The non-disclosure of the commercial intent of a “tap tag” containing a link to the website of a third-party business is as a rule capable of inducing the consumer to make a transactional decision to click on the link which he would not have made otherwise.
      PubDate: 2022-04-07
       
  • “Link Collection Site”

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      Abstract: The act of linking to content, including audiovisual works infringing the right of communication to the public or to webpages on which such content is located, does not constitute such an infringement, on the grounds that the requirements for making available stipulated in the relevant provisions are not met. This was an established precedent of the Supreme Court. Links only contain the location information and routes for connecting to the content or webpages that store the (third-party’s) materials, including various kinds of audiovisual works. When internet users directly connect to the content that infringes the copyright by clicking on the links in question, the perpetrator is not the person who creates the links, but the one who uploads the contents to the internet servers. Links should be treated as a request to retrieve a certain content, a preparatory measure to do so or a route thereto. The act of creating links does not make the copyrighted works available. Thus, the precedent holding that such links do not constitute copyright infringement should be followed. The Supreme Court’s precedent on the liability for aiding the communication to the public follows the legal doctrine that creating links on the internet does not constitute copyright infringement on the grounds that “such an act may not be seen as aiding the commission of an act infringing the right of communication to the public.” This is true in cases where the links merely directly connect the content infringing the copyright holders' right of communication to the internet users. Links are said to have a unique social meaning and function to promote the free diffusion of information and realise freedom of expression on the internet. If creating links is to be treated as a wrongful act, it would result in imposing liability for aiding the infringement of the right of communication without cautious consideration, and excessively disturb the realisation of freedom of expression and the general freedom of action. However, the precedent that says that creating links is not to be seen as an act of aiding the infringement of the right of communication to the public should be re-examined when considering the general legal principles on liability for aiding the predicate offence. This is a different issue from the fundamental standpoint that such a liability should not be commonly established where links on the internet are at issue. When the principal offender has uploaded to the internet content that infringes copyright in a manner that members of the public may access it at any time and place, such act in itself already gives rise to criminal liability. It does not depend on the actual transmission of the infringing content to the public. In this circumstance, if the principal offender does not remove the content from the servers or prevent others from accessing it, the commission of the crime, that is, the making available of illegal content, continues. If such an infringing act is still in progress, aiding such a predicate offence is punishable. Where, despite sufficient knowledge of the fact that the principal offender infringes the right of communication to the public, someone who creates links to the content infringing copyright undertakes such acts continuously and for profit to allow members of the public to have easier access to it or the webpages containing it, such as an operator who provides a multitude of links to connect to such content, is said to aid the criminal act. This leads to liability for aiding. Creating links is closely related to the act of the principal offender to make content infringing copyright available to the public before the crime committed by the principal offender ends, which also expands the possibility of fulfilling the requirements for the predicate offence and realising the results it causes. In doing so, such a person is held to have facilitated the commission of the principal offender’s criminal act prejudicing the rights recognised by law for a longer time and on a larger scale. In such cases, both the principal offender and the aider intentionally commit the act. Where creating links, e.g. providing a multitude of links to audiovisual content infringing copyright, does matter, the liability of the aider may lie with the party committing such an act, that is, creating links that seem, in consideration of the actor’s intention and their forms, closely related to the infringement of the right of communication to the public. In this circumstance, the unique social significance of internet links to enable the circulation and diffusion of information cannot justify such an act. However, in cases where a person who creates links does not have sufficient knowledge of the fact that such materials are illegal, their guilt as an aider does not constitute a criminal act. The same is true in cases where providing links to content that infringes copyright is not continuous and for profit. Thus, the intention of the aider or the causality between the principal offender’s crime and the aider’s aiding act may be denied, or can be socially tolerated from the perspective of the entire legal order.
      PubDate: 2022-04-05
       
  • Copyright and Digital Teaching Exceptions in the EU: Legislative
           Developments and Implementation Models of Art. 5 CDSM Directive

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      Abstract: Abstract Article 5 of the 2019 EU Directive on Copyright in the Digital Single Market (CDSM) attempted to modernize the regime of copyright exceptions and limitations related to teaching activities. Its aim is to enhance the flexibility behind permitted uses to the benefit of educational institutions regarding their digital and cross-border teaching. The pressing need for such a legislative reform was confirmed by the outbreak of the COVID-19 pandemic, which dramatically moved teaching environments to online platforms. This paper dissects Art. 5 CDSM Directive unveiling three layers of analysis. First, the substance, logic, and promises of the new provision are introduced. Second, it identifies diverging national implementation models, developing a comparative study of the Hungarian, German, and Italian experiences. Third, drawing from the comparative study, the paper provides fundamental guidance in understanding whether Art. 5 CDSM Directive can be considered an evolution or, rather, a devolution of the copyright teaching exceptions in Europe. Focusing on the systematic concerns arising from the new provision, its embedded limits, and the strategic uses of the licensing carve-out, we conclude that the EU legislature has only partially achieved the goal of striking a more European, modern, and sustainable balance between copyright protection and the right to education in the digital environment.
      PubDate: 2022-04-05
       
  • “DABUS”

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      Abstract: An inventor as recognized under the Patent Act can be a non-human such as an artificial intelligence system or device. However, a non-human inventor can neither be an applicant for a patent nor a grantee of a patent.
      PubDate: 2022-04-04
       
  • Patent Notice (Failure) in the Era of Patent Monetization

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      Abstract: Abstract The most commonly provided economic rationale underlying the patent system is that it incentivizes inventive effort that may not be carried out in its absence. In addition to this utilitarian rationale, economic and legal scholars frequently refer to a second rationale: the dissemination of technological information to the public. This notice function is thought of as an important mechanism to enable a more efficient investment in innovation by stimulating further (cumulative) innovation, reducing wasteful duplicate innovative efforts, and limiting unnecessary litigation. Courts have placed a great deal of emphasis on the notice function and have described it as the quid pro quo of granting patent owners the right to exclude. Whereas the notice function is traditionally confined to the adequate disclosure of inventions, we propose that in light of the recent trend towards rapidly growing markets for patent monetization it should also encompass the adequate disclosure of holders of patent rights. Specifically, we argue that knowing the identity of rightsholders is a fundamental prerequisite for any patent transaction to occur. Based on a comparative analysis of the provisions of six patent offices, we illustrate that even though current provisions warrant an adequate disclosure of the identity of initial patent applicants, they provide the public with only limited opportunities to track subsequent changes of ownership. Whilst most patent authorities require to file notice when patent rights are assigned, strict enforcement mechanisms are absent. This allows for a lack of transparency of patent ownership, which may hamper rather than facilitate technology transactions.
      PubDate: 2022-04-04
       
  • Correction to: Perverse Results from Pharmaceutical Patents in the United
           States

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      PubDate: 2022-04-01
       
  • “Maxxus Group”

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      Abstract: Article 19 of Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States relating to trade marks must be interpreted as precluding a procedural rule of a Member State which, in proceedings concerning an application for revocation of a trade mark for non-use, requires the applicant to carry out market research concerning the possible use of that mark by its proprietor and to make in that regard, to the extent possible, substantiated submissions in support of its application.
      PubDate: 2022-03-31
       
  • Pricing Algorithms as Collusive Devices

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      Abstract: Abstract This article undertakes a critical review of the prospect that reinforced-learning, or more loosely described machine-based, pricing algorithms will lead to widespread collusion without human involvement. There is no evidence, no antitrust case, and no strong theoretical and practical reasons for this belief. Notwithstanding this dearth of evidence, legal commentators continue to insist that algorithmic collusion poses a significant threat and that there is a “gap” in antitrust laws that needs to be filled. However, a reasonable assessment suggests that EU antitrust law and its enforcement are adaptable enough to deal with the cases that may arise.
      PubDate: 2022-03-28
       
  • “Bladcentralen”

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      Abstract: Agreements capable of removing uncertainty as to future market behavior and not involving pricing and volumes may still constitute a restriction of competition by object. The exchange of information capable of removing uncertainties such as the timing, extent and details of measures to be adopted by the undertaking are to be regarded as pursuing an anti-competitive object. Indirect effects for volumes are also covered by Sec. 10 subsection (a) of the Competition Act on selling prices and trading conditions. It is sufficient for establishing an anti-competitive object that a collective boycott harms competition as such, being a collective boycott affecting a customer also covered. It is not necessary for a competitor to be affected. A strict interpretation and a requirement of consistent experience cannot entail that the cooperation in question, to have as its object the restriction of competition within the meaning of the Competition Act, must coincide with an already familiar form of cooperation with the same object. It must simply be clear that the agreement constitutes a restriction by object. The mere existence of pro-competitive effects cannot preclude characterization as a “restriction by object”. As to the measurement of fines, an undertaking must not be organized (e.g. be the same undertaking) to give an unjustified advantage.
      PubDate: 2022-03-15
       
  • “Secretary of State for Health & Anor v. Servier
           Laboratories Ltd & Ors”

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      Abstract: The so-called “dealing requirement” concerning the tort of causing loss by unlawful means is part of the ratio of OBG (OBG Ltd v. Allan [2007] UKHL 21; [2008] AC 1). A successful deceptive patent application, resulting in a patent or injunction grant, and the enforcement of said patent, which lead generic manufacturers not to enter the market, thus preventing a competitive process from arising and ultimately a lowering in prices, which in consequence causes a party to pay too much for a medication does not fall under the unlawful means tort as the dealing requirement is not met.
      PubDate: 2022-03-14
       
 
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