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A COVID-19 vaccine: myriad patent litigation for years to come?

Thu, 12/10/2020 - 23:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Cynthia Cochrane 5 WENTWORTH CHAMBERS and Duncan Longstaff SHELSTON IP
Volume: 33
Year: 2020

Introduction Myriad patent rights will underlie a COVID-19 vaccine. The unprecedented human and commercial need to find a solution to the pandemic is driving innovation and collaboration worldwide. There is an emerging array of inventions, including candidates for the vaccine itself (produced using a variety of techniques and platform technologies), ...

Burger Wars — the latest instalment of McD Asia Pacific LLC v Hungry Jack’s Pty Ltd

Thu, 12/10/2020 - 23:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Christopher Mittiga LEGALVISION
Volume: 33
Year: 2020

Introduction Australia’s largest burger rivals, Hungry Jack’s and McDonald’s have been locked in a brand battle for the better part of 2020, stemming from alleged trade mark infringement on the part of Hungry Jack’s. McDonald’s has alleged that recent trade mark filings by Hungry Jack’s and the subsequent use of ...

Geographical indications: a new system of IP rights for Australia?

Thu, 12/10/2020 - 23:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Tommy Chen ALLENS
Volume: 33
Year: 2020

Key points • In its free trade negotiations with Australia, the EU is requesting very strong protection for a list of product names, which the EU claims are geographical indications (GIs) for food, beverages and agricultural goods originating in the EU. • If the demands are accepted, even in a ...

The Australian Copyright Act and the three-step test language — friends or foes?

Thu, 12/10/2020 - 23:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Dr Nikos Koutras EDITH COWAN UNIVERSITY WA
Volume: 33
Year: 2020

Introduction The three-step test is not new in copyright law. It is embodied not only in the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) (Art 9(2)) but also in the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement (Art 13) and the World Intellectual Property Organization (WIPO) ...

The UK Supreme Court’s decision in Unwired Planet: what’s the relevance for Australia?

Thu, 12/10/2020 - 23:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Mark Marfé and Anna Harley PINSENT MASONS LLP
Volume: 33
Year: 2020

Introduction In the recent case of Unwired Planet International Ltd v Huawei Technologies (UK) Co Ltd 1 ( Unwired Planet ), the UK Supreme Court (UKSC) held that a UK court has the power to grant an injunction to prevent the infringement of a standard essential patent (SEP) and determine the ...

Beware descriptive terms in trade marks: review of two Trade Mark Office Hearing Cases

Thu, 11/05/2020 - 23:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Binh Rey BAXTER IP
Volume: 33
Year: 2020

The following two cases highlight the importance of avoiding descriptive terms in a trade mark, as well as reinforcing the need to give enough evidence when presenting a case. Australian Black Sheep Pty Ltd v Australian Ugg Pty Ltd (8 July 2020) This matter 1 was an opposition to two trade marks filed ...

Ceramiche Caesar SpA v Caesarstone: the pitfalls to be avoided by raw material manufacturers seeking trade mark protection for use of their marks in relation to final end user products

Thu, 11/05/2020 - 23:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Jacqueline Chelebian and Khajaque Kortian SPRUSON & FERGUSON LAWYERS
Volume: 33
Year: 2020

In the recent decision of Ceramiche Caesar SpA v Caesarstone Ltd [2020] FCAFC 124 (28 July 2020), 1 the Full Court of the Federal Court considered the effect of an amendment during prosecution, expressly excluding goods in a trade mark application, when assessing “honest concurrent use”, and also the level of control required ...

Parallel imports in Australia

Thu, 11/05/2020 - 23:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Chris Round and Olivia Coburn K&L GATES
Volume: 33
Year: 2020

Introduction This article summarises the changes to parallel importation law as it relates to trade marks as a result of the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018 (Cth) (the Act). Trade mark holders will now find it much more difficult to prevent parallel ...

The Aboriginal Flag

Thu, 11/05/2020 - 23:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Dimitrios G Eliades BARRISTER
Volume: 33
Year: 2020

Introduction Since its design in 1971, the Aboriginal Flag has grown to become a symbol of First Nations peoples’ unity, providing them with deserved national and international identity and providing non-First Nations peoples with an opportunity to pay respect and acknowledge publicly this nation’s first peoples. Since 2018, events involving ...

Trade marks can make or break a distributorship

Thu, 11/05/2020 - 23:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Eric Ziehlke SWAAB
Volume: 33
Year: 2020

Introduction When an overseas principal sets up an exclusive distributorship in Australia, it will generally do all it can to support its exclusive distributor. However, the principal needs to ensure that its own trade mark rights are fully protected. Set out below are two scenarios which highlight how trade marks ...

Coffee capsule conflict: patent claims revoked in Caffitaly System SpA v One Collective Group Pty Ltd

Sat, 10/10/2020 - 23:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Alison Beaumer and Jessie McKenna ALLENS
Volume: 33
Year: 2020

Introduction In an orthodox application of the law on patent infringement and validity, the Federal Court, in Caffitaly System SpA v One Collective Group Pty Ltd , 1 has dismissed an application by Caffitaly System SpA (Caffitaly) for infringement of its coffee capsule patents and revoked the asserted claims for invalidity. ...

Patenting plants at the EPO — more restrictive than in Australia

Sat, 10/10/2020 - 23:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Humphrey Foote DAVIES COLLISON CAVE
Volume: 33
Year: 2020

Following the Enlarged Board of Appeal’s (EBA) decision in the G 0003/19 case earlier this year, 1 plants (and animals) that are exclusively obtained by means of an essentially biological process are no longer patent eligible subject matter at the European Patent Office (EPO). Here we briefly discuss how we got ...

Using copyright to battle trade mark pirates in China

Sat, 10/10/2020 - 23:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Courtney Macintosh and Yijie Zhao SIPS
Volume: 33
Year: 2020

This article examines how foreign rights holders can assert copyright against Chinese pirates who apply to register or use their design trade marks in China. It focuses in particular on a recent case decided by China’s Supreme People’s Court (SPC) that illustrates the protections available and explains the type of ...

Using post-filing data to help establish sufficiency and support

Sat, 10/10/2020 - 23:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Candace Wu, PhD and Michael Christie, PhD SHELSTON INTELLECTUAL PROPERTY
Volume: 33
Year: 2020

Australia introduced the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth) with the aim of aligning Australia’s written description requirements with those in the UK and Europe. The new requirements require the specification to disclose the invention in a manner which is clear enough and complete enough for the ...