Intellectual Property, Australia updates

Let's get physical? Software patentability in Australia
  • Australia
  • March 28 2016

In the last few years three subject matters have been lurking on the fringes of patentability: methods of treatment, genes and software. The High Court recently considered methods of treatment (which are generally patentable) and isolated naturally occurring genes (which are not). Now the High Court may have the opportunity to consider the extent to which software is properly the subject of patent protection.

Location, location, location
  • Australia
  • May 17 2010

'Location' is the catchcry of the real estate industry, but a recent case shows that where a particular location is trademarked, other parties wishing to mention that location in their advertising must tread a fine line between legitimate descriptive use and infringing trademark use.

A sweet finding for Sweet Rewards
  • Australia
  • March 29 2010

If your sweet tooth has you wandering the confectionery aisle in your local supermarket, you have probably noticed the range of imitation chocolate confectionery products. A recent decision suggests that in some cases there is little a well-known confectionery manufacturer can do to prevent this activity, no matter how famous the product or how closely the imitation product replicates non-distinctive elements of its packaging.

Careful copying not always taboo
  • Australia
  • March 01 2010

Have you ever picked up a new brand of your favourite product in the supermarket and noticed that its packaging looks suspiciously similar to that of your trusted old brand? A recent case between the producers of NutrientWater and Grassroots Enhanced Water acts as a reminder that it is difficult to stop a little shrewd copying of packaging unless it infringes registered rights or is likely to confuse customers.

Soft landings: trend of strong protection for pre-2004 registered designs continues
  • Australia
  • February 15 2010

The Designs Act 1906 (Cth) was replaced by the Designs Act 2003 (Cth), in part because of concerns about the weak protection for design registrations under the old act. However, since the new act came into force, decisions in old act infringement cases have taken a sudden turnaround in favour of registered design rights. After a century of weak protection, a number of cases have shown that old act design registrations have teeth.

Getting Away with (Brand) Murder: The Limits of Trademark Parody
  • Australia
  • November 16 2009

Trademarks are a shorthand expression of culture and meaning and thus an attractive target for parodies. In countries where freedom of speech is protected, parody may operate as a defence to trademark infringement. However, under Australian law, there is no constitutional guarantee of freedom of speech. Therefore, courts have approached the question of parody only incidentally as part of the application of black-letter trademark law.

All A-Twitter: and Trademarks
  • Australia
  • August 17 2009

Twitter, a social networking page through which users sum up current events in their lives in 140-character updates or 'tweets', has proven a fruitful arena for attacks on trademark rights through the registration of marks as usernames. On the face of it, this is nothing new. However, Twitter differs slightly from more familiar forms of online trademark infringement, particularly for the purposes of Australian trademark law.

An Icy Wind Blows Across Copyright in Australia
  • Australia
  • May 26 2009

The High Court has found that there was no copyright infringement when IceTV - the producer of the IceGuide - reproduced selected time and title information from Nine's programme schedule. The approach taken by the High Court significantly raises the bar for demonstrating authorship in copyright cases where subsistence, or what constitutes a substantial part of the copyright work, is at issue.

Commonsense Approach to Trademark Use and the Beer/Wine Dichotomy Confirmed
  • Australia
  • May 05 2009

In a recent decision the Full Federal Court addressed three key issues: the extent to which use of a trademark in Australia of a foreign-based trademark can be used to defeat a non-use removal action; the time at which a removal order takes effect; and the question of whether beer and wine are goods of the same description for the purposes of trademark infringement under the Trademarks Act.

Full Federal Court Protects "Look and Feel" of T-shirt Designs
  • Australia
  • February 23 2009

In a recent case the Full Federal Court found that the copyright in sports-style T-shirt designs, comprising arrangements of text and logos in a circular pattern, was infringed by a rival T-shirt manufacturer that instructed its employees to create T-shirts with the same look and feel, but with different text and logos.

Recent Full Federal Court Decision Permits Parallel Imports into Australia
  • Australia
  • February 16 2009

A recent Full Federal Court decision shows the limits in the application of copyright law to restrict parallel imports into Australia. In particular, the importation of articles bearing a label, such as a logo on a piece of clothing, will not infringe the copyright in the label. While unfavourable to copyright and trademark owners, the decision is welcomed by parallel importers.

Droit de Suite Scheme Introduced into Parliament
  • Australia
  • January 12 2009

After a number of inquiries and several years of ongoing debate, the government recently introduced a bill into federal Parliament intended to set up a scheme for granting resale royalty rights (droit de suite) to visual artists. According to proponents of the scheme, it will allow visual artists greater access to the economic benefits that flow from the success of their work when it is resold.

High Court Provides Guidance on Contributory Infringement Provision
  • Australia
  • November 24 2008

According to a recent High Court of Australia decision, suppliers of commercial products with limited uses may be liable for patent infringement if one of those uses is infringing. The decision is important because it is the first time that the High Court has provided guidance on the proper construction of Section 117 of the Patents Act 1990, commonly referred to as the ‘contributory infringement’ provision.

Advisory Council Announces Review of Scope of Patentable Subject Matter
  • Australia
  • September 15 2008

The Australian Advisory Council on Intellectual Property recently announced a review of the scope of patentable subject matter in Australia. The review is to focus primarily on the ‘manner of manufacture’ test, which operates as the threshold requirement for patentable subject matter under Australian law, including the ‘generally inconvenient’ exception.

How Substantial is a Sliver?
  • Australia
  • September 08 2008

The Nine v IceTV Case concerns a copyright infringement claim brought by the Nine television network against IceTV, the publisher of an electronic programme guide known as the IceGuide. The trial judge found that there was no copyright infringement as only "slivers" of work had been copied. The Full Federal Court disagreed.

Full Federal Court Dismisses Appeals in Patent Battle
  • Australia
  • September 01 2008

A recent case raised the issues of whether the sale of an enantiomeric compound infringed a patent for the racemic mixture and whether a later patent for the enantiomer was invalid due to misrepresentation (false suggestion) to the Patent Office.

Patent Battle over Anti-depressants Continues
  • Australia
  • August 26 2008

Citalopram is the subject of a patent filed by Lundbeck on January 5 1977. It is a chiral molecule which exists as a racemate, a mixture of two enantiomers in equal measures. On June 13 1989 Lundbeck filed a patent for the (+) enantiomer of citalopram, referred to as escitalopram or (+) citalopram. Alphapharm sought to invalidate the escitalopram patent on a number of grounds.

Full Federal Court Gives Clarity to Meaning of ‘Publicly Available’
  • Australia
  • August 18 2008

In a recent case the Full Federal Court of Australia held that the question of whether a claimed invention has been made publicly available will be answered by consideration of whether the relevant information was made available to a member of the public who was free in law and equity to make use of it.

Damages Awarded for Careless Use of Copyright
  • Australia
  • October 20 2003

The recent case of Sullivan v FNH Investments highlights the scope of damages that can be awarded for careless use of another's copyright. This case also illustrates the perils faced by businesses which assume that because they have paid for materials to be developed, they have the right to exercise the copyright in those materials.

Peer-to-Peer Systems Not Covered by Copyright Act
  • Australia
  • September 15 2003

Technologies such as Grokster and StreamCast allow internet users to download high-quality files of their favourite songs or movies free of charge. However, they are unlikely to be held to have infringed, or authorized infringement of, copyright under Australian copyright law as it exists today.

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