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ISSUE 1 2014 MASCHIO & SOAMES IP LTD
by its technical function” and “features of appearance of a product which must necessarily be reproduced in their exact form and dimensions in order to permit the product in which the design is incorporated or to which it is applied to be mechanically connected to or placed in, around or against another product so that either product may perform its function”.
Technological fixes have also been tried. For example, some ink-jet cartridge manufacturers incorporate “clever chips” in their patented cartridges that prevent use of the cartridge after it has been refilled. One could envisage marking consumables with machine-readable code or trademarks to prevent use of unauthorised consumables. The legality of such fixes in non-patented consumables has not, as far as we know, yet been tested by the EU competition authorities, but it seems quite likely to be problematical. Incidentally, the “clever chips” have not been banned by the EU competition authorities. Instead, they have recently been banned under the electro scrap recycling directive!
There remains also the possibility of controlling supply of consumables by contract. Tying of consumable sales to the sale or lease of the primary equipment is not excluded by European competition law in most circumstances (although any such arrangement should be checked for compliance by a competition lawyer). Such arrangements are probably not practicable in the business to consumer space, such as domestic printers or coffee machines. However, they can be useful in the professional and business to business spaces, in particular, if the primary machine is leased rather than sold outright.
BOLAR EXEMPTIONS IN EUROPE – RECENT DEVELOPMENTS
Anthony James
European Union Directive 2001/83/EC as amended by Directive 2004/27/EC established minimum requirements for Bolar-type exemptions in Europe. The directives specify that research activities related to obtaining regulatory approval of generic medicines and biosimilars shall be made exempt from patent infringement in each member state. Corresponding Directives exist for generic and biosimilar plant protection products.
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