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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 ...

Electronic gaming machines come up trumps for Aristocrat

Thu, 09/03/2020 - 22:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Paul Mahony BLACKWATTLE IP
Volume: 33
Year: 2020

Key points • Computer-implemented inventions continue to be patent eligible subject matter in Australia, subject to some important caveats. • Characterisation of the “substance” of an invention is not an assessment of the “inventive concept”. • The role of expert witnesses and common general knowledge is limited to assisting the ...

Let’s get clinical — when will clinical trial documents anticipate?

Thu, 09/03/2020 - 22:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Rebekah Gay, John Lao and Henry Simpson HERBERT SMITH FREEHILLS
Volume: 33
Year: 2020

The recent decision of the Full Federal Court of Australia in Mylan Health Pty Ltd v Sun Pharma ANZ Pty Ltd ( Mylan v Sun Pharma ) 1 confirmed that documents from a clinical trial can be novelty defeating, even if the disclosure is of matters that are yet to be scientifically ...

Mylan v Sun Pharma: Full Court clarifies test for infringement of Swiss-style claims

Thu, 09/03/2020 - 22:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Angela McDonald 5 WENTWORTH CHAMBERS
Volume: 33
Year: 2020

Introduction A five-judge bench of the Full Court in Mylan Health Pty Ltd v Sun Pharma ANZ Pty Ltd recently clarified the test for infringement of Swiss-style claims. 1 Key points • In determining infringement of Swiss-style claims, the question which must be answered is: “as the product of the claimed ...

Parody songs under Australian copyright law

Thu, 09/03/2020 - 22:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Miriam Zanker and Lachlan Sadler DAVIES COLLISON CAVE
Volume: 33
Year: 2020

In addition to its far more serious impacts, the COVID-19 pandemic (and, in particular, the accompanying prolonged periods of social isolation) has inspired various aspiring musicians to create imaginative parody songs, from “My Corona” to “Coronavirus Rhapsody”, to riffs on The Beatles’ “Yesterday”. As well as providing some much-needed comic ...

Second time’s a charm: preliminary discovery from ISPs to unmask copyright infringers

Thu, 09/03/2020 - 22:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Daniel Jepson and Jacob Daly HOLMAN WEBB LAWYERS
Volume: 33
Year: 2020

Introduction Over the years, rights holders have tried several different creative ways to identify and prosecute copyright infringers using the internet. One way of doing that is to compel the potential infringer’s internet service provider (ISP) to produce relevant information through preliminary discovery. The recent decision of Siemens Industry Software ...

Battle between burger brands: In-N-Out Burgers, Inc v Hashtag Burgers Pty Ltd (No 2)

Wed, 08/05/2020 - 22:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Miriam Zanker and Courtney White DAVIES COLLISON CAVE
Volume: 33
Year: 2020

In a Federal Court decision handed down in February 2020, 1 an Australian company operating burger restaurants under the name Down-N-Out was found liable for trade mark infringement, misleading or deceptive conduct and passing off based on the similarity of its mark to the US brand In-N-Out Burger. On 5 June 2020, 2 Katzmann ...

Design of a decade: reform for design regime still planned after nearly 10 years of review

Wed, 08/05/2020 - 22:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Christopher Mittiga LEGALVISION
Volume: 33
Year: 2020

Regulatory changes to Australia’s designs ecosystem have been a long time coming, with a review process commencing nearly 10 years ago finally bearing fruit: IP Australia has indicated that later this year, an exposure draft of a proposed Bill to amend the Designs Act 2003 (Cth) (the Act) will be released. ...

Facebook, Inc [2020] APO 19 — further guidance on patent manner of manufacture for computer implemented inventions

Wed, 08/05/2020 - 22:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Ryan Boe SPRUSON & FERGUSON
Volume: 33
Year: 2020

Key points • A technical improvement to a computer using generic implementation can be considered patentable subject matter in Australia under s 18 of the Patents Act 1990 (Cth). 1 • Where generic computer implementation directed towards solving a non-patentable (in this case a business) problem is used, it may still ...

Infringing or not infringing? That is the question — reducing infringement risks for pirated foreign brands that wish to manufacture goods in China following the Hondakit decision

Wed, 08/05/2020 - 22:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Grace Chen and Dan Plane SIPS
Volume: 33
Year: 2020

The legal standard for determination of trade mark infringement in relation to “Original Equipment Manufacture” (OEM) products has been constantly evolving over the last 20 years in China. Following issuance of the Honda Motor Co, Ltd v Chongqing Hengsheng Xintai Trading Co Ltd and Chongqing Hengsheng Group Co Ltd 1 ( ...

Liability for copyright infringement through streaming and downloading platforms in Boomerang Investments Pty Ltd v Padgett

Wed, 08/05/2020 - 22:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Emma Gorrie and Sarah Muller ALLENS
Volume: 33
Year: 2020

Key points • “Sung lyrics” are part of a musical work. • Platforms licensed to authorise streaming or downloading of a copyright work do not infringe by authorising the same conduct for a second work which reproduces a substantial part. Introduction Boomerang Investments Pty Ltd v Padgett (Liability) 1 illustrates potential ...

More to logo trade marks than meets the eye

Wed, 08/05/2020 - 22:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Anita Brown PHILLIPS ORMONDE FITZPATRICK
Volume: 33
Year: 2020

Key takeaways • Trade marks comprising of or incorporating artistic works may be protected under copyright legislation. • Should copyright subsist in an artistic work that is also intended to be the subject of a trade mark application, lawyers should advise clients that the artistic work must: — meet the ...

Office decision sees patent applicant ousted from applications following inventorship dispute

Wed, 08/05/2020 - 22:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Mattia Pagani and Chris J Carter DAVIES COLLISON CAVE
Volume: 33
Year: 2020

Introduction A decision by the Australian Patent Office (Office) has resulted in a patent applicant losing entitlement to his applications after it was found that he was not the true inventor. Vuly Pty Ltd v Yang 1 involved a dispute between a company and its ex-employee over the ownership of a ...