Application of law vs «improvement of legislation» (some considerations on current legal practice)

Relevant problems of the practice of application of law and permanent process of improvement of the Ukrainian legislation are examined in this article. In particular authors stress on contradiction between process of the permanent improvement of the legislation and sustainability, predictability and legal certainty as principles of legal system. On the one hand, constant reforming of the legislation of Ukraine does not give possibility for subjects of law to create stable legal relations, which are regulated in a predictable way. On the other hand, legislation of Ukraine must be actual and even few “step ahead” the actual situation in Ukraine. It must give necessary methods, tools and legal instruments, which regulate relations between subjects of law. Described judicial and notarial practical cases show in what way flexibility of the legislation could be provided in conditions of the ongoing changes. Authors consider that qualified and high-quality application of the current legislation by the subjects of application of law gives possibility to provide flexibility of the legislation. Such application of law is done by subjects applying the law, although their actions are not directly provided for by the legislation, but they are not prohibited either. Essential principle of such application of law must be the whole tendency to create those legal consequences of the application of law which will not lead to the direct infringement of somebodies rights and interests within the process of application of law. Illustrated lawsuit and case of notarial practice show how exactly interpretative mechanism and analogy as a tool of the subject applying the law help to avoid infringements of rights and interests of heirs of the deceased person. Keywords: application of law, improvement of the legislation, notary, judge, court and notarial practice.

Generics (UK) Ltd (T/A Mylan) v Warner-Lambert Company LLC

Patents – Swiss-form claims – Pregabalin – Use in the manufacture or preparation of a medicament for the treating of pain – Construction – Validity – Infringement – Meaning of “for treating” neuropathic pain – Whether central neuropathic pain included – Insufficiency – Biogen insufficiency – Plausibility – Whether plausibility required across full width of claim – Nature of the plausibility requirement – Direct infringement under s.60(1)(b) – Whether intention a necessary element – Nature of the infringement test in relation to claims in Swiss form – Manufacturer liability – “Downstream” liability – Whether subjective intention required – Reasonable foreseeability – The role of packaging – Indirect infringement – Amendment – Post-trial validating amendments – Abuse of process – Discretion – Appeal to Supreme Court

Protecting Animals from Mistreatment through Private Prosecutions in South Africa: A Comment on National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development 2016 1 SACR 308 (SCA)

The general rule in South Africa is that, when an offence is committed, the suspect has to be prosecuted by a public prosecutor. However, there is an exception whereby a victim of crime is permitted to institute a private prosecution if the prosecutor has declined to prosecute. South African law allows natural, but not juristic, persons to institute private prosecutions. In the case examined in this note, the appellant argued that the law prohibiting juristic persons from instituting private prosecutions is discriminatory. The Supreme Court of Appeal held that private prosecutions are only permitted on grounds of direct infringement of human dignity. This note argues that section 7 of the Criminal Procedure Act is unconstitutional for excluding juristic persons from instituting private prosecutions and recommends steps the appellant could take to institute private prosecutions against those who mistreat animals.

Grounding Trademark Law Through Trademark Use

The debate over trademark use has become a hot-button issue in intellectualproperty (IP) law. In Confusion over Use: Contextualism in Trademark Law,Graeme Dinwoodie and Mark Janis characterize it as a dispute over whetherto limit trademark holder rights in a new and unanticipated way. Yet thereis another - in our view more historically accurate - way to frame thetrademark use debate: the question is whether courts should, absentspecific statutory authorization, allow trademark holders to assert a newand unprecedented form of trademark infringement claim. The pop-up andkeyword cases involve attempts to impose third-party liability under theguise of direct infringement suits. Dinwoodie and Janis's thorough accountnotwithstanding, it remains the fact that, before the recent spate ofInternet-related cases, no court had ever recognized a trademark claim ofthe sort that trademark holders are now asserting. Trademark infringementsuits have always involved allegations of infringement by parties who usemarks in connection with the promotion of their own goods and services. Thequestion raised by the trademark use cases, as we view it, is whethercourts should countenance a radical departure from that traditional modelwithout specific instruction from Congress. We think they should not.In this paper, we explain the origins of trademark use doctrine intraditional limits on the scope of the trademark right and in thedistinction between direct and contributory infringement. We also explainwhy we cannot simply rely on the likelihood of consumer confusion test tosolve the problems the trademark use doctrine addresses, and we examine thedifficult problem of defining the scope of the trademark use doctrine.