Australian Technology and IP Business

IP rights reforms

IP Australia has released three further consultation papers which discuss proposals for improving opposition proceedings and divisional application processes. The objective of the proposals is to reduce the period of uncertainty during which the public and third parties do not know where they have freedom to operate.

IP Australia invites any interested parties to make a written submission. Submissions should be made by 17 August 2009.

The three papers are:

Resolving Divisional Applications Faster

Resolving Patent Opposition Proceedings Faster

Resolving Trade Marks Opposition Proceedings

Ice TV not in breach of copyright

In IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14, the High Court has decided that IceTV's use of some of Nine Network's time and title information obtained from aggregated program guides did not infringe Nine's copyright in its weekly schedules. The High Court restored the trial judge's original decision (see here and here).

Proposed reforms to the IP system

The Minister for Innovation, Industry, Science and Research has called for written submissions on proposed reforms to the intellectual property (IP) system.

The reforms aim to:

• reduce barriers in the innovation landscape for researchers and inventors;
• improve certainty about the validity of granted patents; and
• allow patent claims to be resolved faster.

Two discussion papers have been issued:

• ‘Getting the Balance Right’ – Raising patentability standards and giving greater certainty in the validity of granted patents
• ‘Exemptions to Patent Infringement’ – Ensuring that patents do not inhibit research and development in Australia

IP Australia invites any interested parties to make written submissions by 8 May 2009.

Resale royalty scheme for visual artists

The Resale Royalty Right for Visual Artists Bill has been introduced into Parliament. This legislation provides a resale royalty right for Australian visual artists.

The scheme is expected to be in place by 1 July 2009. Under this right, visual artists will have a right to receive a share of sales of their artistic works on the secondary market for all works of art acquired after the legislation comes into effect over a threshold of $1000 at a rate of 5 percent.

The Bill has been referred to the Standing Committee on Climate Change, Water, Environment and the Arts for an advisory report by 20 February 2009.

Drink name dispute to be reheard

In Hansen Beverage Company v Bickfords (Australia) Pty Ltd [2008] FCAFC 181 the Full Court of the Federal Court of Australia allowed an appeal against the trial judge's decision that the use by Bickford's of the name "Monster" for its energy drink was not a misrepresentation by Bickford's that its drink was associated with Hansen's "Monster Energy".

There was no dispute that the similarities between the products could relevantly mislead or deceive for the purposes of the Trade Practices Act and the tort of passing off but the trial judge decided that Hansen failed to prove that as at the date when the conduct commenced, that it had the requisite reputation in the name or goods in Australia. Hansen's product was sold in USA but not trademarked in Australia.

The Full Court decided that the issue of reputation should be remitted to the primary Judge for reconsideration as he had erred in law by referring to the issue of a target market.

Free worldwide patent search

PriorSmart offers a free worldwide patent search facility. It lets you search over 60 different sites using a single interface. .

Trade Mark Counterfeit - Review of penalties and additional damages

IP Australia has recently completed a review of the penalty provisions in the Trade Marks Act 1995. The review also considered additional damages in civil actions for trade marks.

IP Australia considers that the maximum penalties for indictable offences should be raised to the same level as in the Copyright Act primarily because of the Commonwealth policy of consistency of penalty levels between similar offences.

IP Australia considers that introducing additional damages as an available remedy for civil actions  should be adopted primarily to allow for a punitive response where necessary in civil action for trade mark infringement.

IP Australia is seeking written comments by 27 February 2009.

Telepresence

I've started travelling again and am experiencing the syndrome of the late flights getting later as planes are cancelled or put back because of earlier flights' engineering problems etc.

So Connie Moore's post on telepresence (the technology) and her first use of it is an encouraging sign.

Lessons learned from Cyber Storm II: international cyber security exercise

A detailed report outlining Australia’s involvement in the recent international cyber security exercise, Cyber Storm II, has been released by Attorney-General Robert McClelland.

Cyber Storm II was held in March in conjunction with the US Department of Homeland Security National Cyber Security Division, the UK's Centre for the Protection of National Infrastructure, Public Safety and Emergency Preparedness Canada and New Zealand's Centre for Critical Infrastructure Protection.

Its key finding was that "Effective response is enhanced by routinely reviewing and testing Standard Operating Procedures (SOPs), Incident Response Plans and/or crisis management arrangements."

Law, blogs and technology...and grapes

Australian academic Peter Black (Freedom to Differ) hosts Blawg Review #178 for One Web Day 2008.

The review features a range of law blogs discussing the economy, society, politics, technology and education.

Most interesting was the post on the shrink-wrap licence surrounding a packet of grapes! Read it here.