Archive | 2011, October | (4) posts

Personal branding – reflections after inspiring seminars with the famous adventurer Renata Chlumska

Awapatent is co-operating with the famous adventurer Renata Chlumska who is well known for several accomplishments, such as being the first Swedish woman to climb Mount Everest, and she also went around the US (the lower 48 states) by exclusively using a kayak and a bicycle in a challenge called “Around America Adventure” – quite impressive! Her next goal is to become the first Swedish woman in space, which at the earliest will take place during the fall of 2012.  

In a series of seminars for our customers in a number of our different offices, we have had the opportunity to listen to Renata’s adventures and thoughts concerning herself as a brand. Renata is aware of the value in herself as a brand, and also in matters of control in terms of protecting her own name as a trademark, as well as co-operation agreements with her sponsors.

Personal branding is of particular importance for people who provide services, goods and market themselves under their own personal brand. The person behind the brand is also the most essential intellectual asset for this kind of company. However, keep in mind that you are also the leader of your own personal brand and you decide the values of yourself as a company.

Nowadays, companies tend to move in the direction of providing more services than goods (or services connected to physical and intellectual goods) where the people who are providing the services are at the core of the product. In this context it is crucial to strategically and carefully consider how to create incentives for the people who are a part of the brand, and to control their knowledge. This is mutually of essence for the personal brand of the company, and the people who are promoting and exploiting the company. Control and incentives can be created differently depending on the business model, and strategy of the company. Naturally, a strategic use of the personal brand in relation to the business model is also closely linked to the revenues of the company.

Below are some starting points to reflect upon and discuss in terms of personal brand in your company and your own personal brand:

1. Ownership of knowledge and IP. First of all, have you discussed the ownership of knowledge, inventions, IP and know-how, which are created by employees or partners, in your employment and co-operation agreements and whether these assets are transferred to the company, or if it belongs to you as an employee, employer or partner?

2. Relationships and agreements. Secondly, in all relationships, internally and externally, it is crucial to decide upon a legal and business strategy on how to act in relationships with customers, clients, partners and employees, and where the focus of the co-operation, or service shall be. Are you pleased with the co-operation of your relationships today, or do you need to consider up-dating or revising your relationships and agreements?

3. Incentive model. Do you have an existing incentive model for the people who are contributing to the personal brand of your company today, or have you considered to make an evaluation of the incentive model for your company lately? 

The personal brand of people in service companies is, and will become increasingly essential. It becomes easier and faster to post what we like and don’t like on Facebook, to post on Twitter what we are currently up to and so forth. Remember that you are in charge as a leader of your own personal brand. Furthermore, you may be an employee of a company where the personal brands are of importance and where issues connected therewith should be addressed to the board as a key issue on the agenda.

Helena Ribbefors, Attorney at Law, Awapatent.

Patentability of inventions relating to human embryonic stem cells

The Court of Justice of the EU (CJEU) has recently issued a decision clarifying the situation on patentability, in Europe, of inventions relating to human embryonic stem cells. In the decision it is declared that the concept of a “human embryo”, the exploitation of which is excluded from patentability according to the EU Biotechnology Directive 98/44/EC, should be understood in a wide sense. This implies that patents relating to human embryonic stem cells will likely be more difficult to obtain, or at least enforce, also in more embryonic stem cell friendly states of the EU.

The case (C-34/10) pertains to a method and cells invented and patented by Oliver Brüstle, Professor of Reconstructive Neurobiology at the University of Bonn. Professor Brüstle invented a method for converting human embryonic stem cells into neural precursor cells, which can be used for the treatment of a range of neurological disorders, such as Parkinson’s disease. The embryonic stem cells used in the method of Professor Brüstle were cells isolated at the blastocyst stage. Thus, they were pluripotent but not totipotent, i.e. they had the ability to develop into all cell types of a human, but were not able to develop into a human being since they could not form extra-embryonic tissue, such as the placenta.

The patent was opposed by Greenpeace in Germany, and the case was subsequently referred by the German Federal Court to the CJEU. In its decision, the CJEU provides an interpretation of Article 6 of the European Biotechnology Directive (98/44/EC), which states that inventions related to ”use of human embryos for industrial and commercial purposes” shall be considered unpatentable.

Three main points are made:

1. The term “human embryo” should be understood in a broad sense.
According to the Court, the purpose of Article 6 of the European Biotechnology Directive was to ensure exclusion from patentability where respect for human dignity could be affected. Thus, any cell or organism that is capable of commencing the process of developing into a human being must be considered a “human embryo” within the context of the Directive.

The Court explicitly mentions that a fertilised ovum, a non-fertilised ovum into which the cell nucleus from a mature human cell has been transplanted and a non-fertilised human ovum whose division is stimulated by parthenogenesis all must be considered “human embryos”.

Regarding the pluripotent cells of Professor Brüstle’s invention, the Court notably held that it is for the referring court to decide whether a stem cell obtained from a blastocyst is capable of commencing the process of developing into a human being and therefore would fall within the definition of a “human embryo”. It is thus left to the national courts to decide on the patentability of blastocyst-derived, pluripotent stem cells, as long as the capability of the cells to develop into a human being is considered. The evaluation of patentability should also be made “in light of scientific development” and may therefore vary over time. This might have the rather interesting effect that the more technology in this field progresses, the less of the same technology constitutes patentable subject-matter.

2. The use of human embryos in scientific research is excluded from patentability.
The Court states that the use of human embryos for purposes of scientific research cannot in this context be distinguished from industrial and commercial use. Consequently, the Court concludes that scientific research entailing the use of human embryos cannot access the protection of patent law.

3. Inventions that require the destruction of human embryos are excluded from patentability.
In the case of Professor Brüstle, the patent specification does not mention the use or destruction of human embryos or blastocysts to obtain pluripotent stem cells. The Court, however, holds that an invention is excluded from patentability where its implementation requires either destruction or prior use of human embryos, even if the patent application does not explicitly refer to this use. Also, the Court states that the fact that destruction may occur at a stage long before the implementation of the invention, e.g. as is the case with embryonic stem cell lines, is irrelevant.

In conclusion, the CJEU interprets the term “human embryo” broadly, such that all cells that are capable of developing into a human being are excluded from patentability. Whether pluripotent human stem cells fall within this definition or not is left for the national courts to decide and may vary from case to case. In addition, only embryonic stem cells that are obtainable by methods that do not involve use or destruction of human embryos can be patentable. As is pointed out in the decision, inventions that are for therapeutic or diagnostic purposes which are applied to the embryo and are useful to it remain patentable.

Although the decision is not binding on the European Patent Office (EPO), it is binding on the EU member states, and will consequently most likely be followed by the EPO examiners in the grant procedure of European patent applications. Of note, the Enlarged Board of Appeal of the EPO has also, in decision G 2/06, reached the same conclusions as above with regard to points 2 and 3.

So what are the implications of this decision? On the one hand it might be sound that the economic incentives for developing therapies involving the destruction of embryos are reduced, and that the funding of such research will be more dependent on sources under public control. On the other hand, such research, which has the potential to be of immense benefit for patients with various serious diseases, might be more efficient when carried out with private funding. How this decision will affect the development of therapeutic methods based on embryonic stem cells thus remains to be seen.

Maria Malmqvist, Associate, Awapatent

“There is so much more to learn …” – first report from our Specialist programme

It is peculiar how all of a sudden all news media and even friends and family seem to discuss patents and intellectual property rights… Samsung vs. Apple (R.I.P. Steve Jobs), America Invents Act and EU-patents. Perhaps it is because when you start to work within a new field, you tune in things that used to pass you by.

Most of us, who started the Specialist programme close to six weeks ago, represent to some extent the best within our specific technology fields. It is therefore a somewhat odd feeling, finding ourselves knowing so very little… The more I learn, the more I realize how little I know… and to me this is quite exciting!

These past six weeks have revealed how multilayered and complex the role of a patent attorney is, encompassing science and technology, law and business, communication and salesmanship as well as writing, translations and grammar….  Who would have thought that at the age of 30 something I would be working on perfecting my Swedish grammar?

But it is a privilege to get the opportunity to learn and it is a lot of fun. Although, I must admit that is with a great deal of humility that I look back at the article in Ny Teknik entitled “Bara de riktigt duktiga kan bli patentkonsulter” (Only the best can become patent attorneys), published only days before we started the Specialist programme.

So far, it has been a little bit like the first day (or weeks) of school, realizing that there is so much more to learn… I am truly looking forward to the upcoming first home office period.

Joanna Applequist, Associate, Awapatent

EU patent to pave Europe’s way out of crisis

On 12 October 2011 the European Commission presented a so-called “Roadmap for stability and growth” outlining the response that they believe is needed to get Europe out of the current economic crisis. The roadmap includes five areas of action, four of which relate to financial and economic issues, including of course the problems currently encountered by Greece and the other Euro countries.

The last area of action is called “Speeding up stability and growth-enhancing policies” and suggests, amongst others, to accelerate the adoption of the proposed unitary European patent. If the 25 member states, who have indicated their intention to join the unitary patent, all do so the Commission estimates that it would lead to an 80% reduction in costs for companies utilising the system. Together with a series of other initiatives this should not only make life easier for European companies, but also contribute to making Europe more attractive to foreign investors.

Read more about the EU patent in our earlier blog post: A brighter future for the EU patent

The full document adopted by the Commission can be found here.

Vibeke Warberg Rohde, European Patent Attorney, Awapatent