Archive for October, 2008

Business method patenting?

Friday, October 31st, 2008

The US Federal Circuit (9 panel bench) has handed down its decision ruling that Bilski’s method of hedging risks in commodities trading was not patentable.

As summarised by Patently-O, the majority opinion substantially retreats from State Street.

a process claim [must be] tailored narrowly enough to encompass only a particular application of a fundamental principle rather than to pre-empt the principle itself. A claimed process is surely patent-eligible under § 101 if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.

Judge Newman would have found the invention patentable; Judge Rader would have rejected the patent, without the need to develop a new principle, on the grounds that all that was claimed was an abstract principle.

Read Patently-O’s summary, which also has a link to the decision itself.  Compare our Full Federal Court in Grant.

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Google book

Thursday, October 30th, 2008

You may recall that some time ago, Google started scanning/digitising every book they could find and putting on the internet for searching.

Court actions ensured and the project was scaled back somewhat to out of print/out of copyright books.

Now the court case has been settled (subject to the Court’s approval) and the project goes on:

IPkat here (with press releases etc.) – the horse’s (well, Google’s) mouth here.

Publisher’s Weekly here via Marty.

Australian Copyright Council here.

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Review cases handed down

Sunday, October 26th, 2008

On Friday, Kenny J handed down the 2nd and 3rd substantive design cases under the new Act:

  • in Review v Redberry [2008] FCA 1588, her Honour found the design valid but not infringed;
  • in Review v New Cover [20089] FCA 1589; valid and infringed including $85,000 damages (of which $50,000 were for additional damages).

The judgments will no doubt be up on Austlii soon but, until then, students can download pdfs from the links below:

review-v-redberry-judgment

review-v-new-cover-judgment

Lid dip, Sue Gatford.

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Designs Act 1906

Thursday, October 23rd, 2008

The Designs Act 2003 is online for free at Austlii, here. (Updated to fix link.)

Succor is also available for those looking for a downloadable online version of the Designs Act 1906 (as at the date of repeal on 17 June 2004) and the Regs.

Thanks, Thomas and Michael.

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Patenting software in the UK (Europe)

Thursday, October 23rd, 2008

The UK Court of Appeal has apparently broadened the scope to patent computer software:

Symbian Limited v. Comptroller General of Patents [2008] EWCA Civ 1066

Paul Cole guest posts at Patently-O. IPKat extensively here.

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IP, China and Hong Kong

Tuesday, October 21st, 2008

The IP Dragon has two worthwhile papers:

(1) Hong Kong is a Special Administrative Region of the People’s Republic.  What does that mean for protecting your IP? here (and here)

(2) China’s National IP strategy 2008 here.

He also has a link to an interesting paper on your IP strategy in China – most experience suggests you need to get on the ground where your outsourcing is taking place.

Meanwhile, IPKat looks at the problem of bad faith trade mark registrations in China – Phony Sony anyone?

Meanwhile, as the death penalty for IP infringement is proving to be than an absolute deterrent, lateral thinking has been required.  We only sell real products here, really!

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The record industry against the world

Monday, October 20th, 2008

The EFF undertakes a review of the recording industry’s war against file sharing on the fifth anniversary of the launching of the RIAA’s first case.

Meanwhile, the RIAA is suing an attorney who seems to work overtime for defendants sued by the RIAA: here and. Amongst other things, Mr Beckerman maintains a checklist of tips for people facing an action by the RIAA: they won’t be directly applicable here, but who knows what food for thought you may find. If you want to get a better understanding of how the US litigation works, read Mr Beckerman’s article from the Judges Journal here.

And the RIAA is appealing (more here) the Jammie Thomas decision, seeking to be heard before the retrial.

Lid dip: Excess Copyright.

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Traditional Knowledge, Folklore, And Genetic Resources -updated

Saturday, October 18th, 2008

The Chairman has released a report outlining how WIPO’s future work on the protection of Traditional Knowledge, Folklore and Genetic Resources following the conclusion of the 13th session of the Intergovernmental Committee.

pdf link via Intellectual Property Watch.

Kaitlin Mara has an lengthy report from the fallout of the last day’s negotiations: ‘No Agreement For WIPO Committee On Traditional Knowledge And Folklore’ here. It is interesting that ‘progress’ and ‘positive outcome’ relate solely to the adoption of yet another treaty with new rights.

Meanwhile, Lebanon is claiming, amongst other things, a ‘food copyright’ no less in felafel. Beauty Marks exposes the ‘plot’ and points to some common confusions; the IPKitties claim that Egypt really has first dibs and, as it is not claiming rights, everything is OK. Now, would a several thousand year old food count as folklore, traditional knowledge or, like Champagne, a geographic indicator?

The collection of papers for the IGC, here, and brief summary.

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Contributory patent infringement

Friday, October 17th, 2008

The High Court has allowed the Northern Territory’s appeal against the finding that it infringed the Collinses’ patent under section 117 of the Patents Act 1990 (Cth) by granting a statutory licence to ACOG to harvest certain trees from Crown land.  It was alleged ACOG then used oil extracted from the trees to make blue cypress oil by a process protected by the Collinses’ patent.

From a quick skim of the judgments (there are several), it appears that the Northern Territory escaped liability because the trees were a staple commercial product and so it was necessary to show that the Northern Territory had given instructions or inducements to use the product by means of the patented process (not merely ‘facilitated’ it).

It also looks like the High Court rejected the Northern Territory’s argument that Rescare set out the correct interpretation of s 117; not Bristol-Myers Squibb v Faulding.

Northern Territory v Collins [2008] HCA 49.

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3 helpful iPhone apps for Australians

Wednesday, October 15th, 2008

AroundMe

Metro Public Transport (Melbourne, Sydney and Perth) a free and paid version for Melbourne

Pocket Weather AU (like the great widget, but you have to pay)

Another 5 another lawyer likes.

The three I mention can be (are) Australian specific information services.  These work well because they relate to location specific things which the iPhone can retrieve.  Most of the other apps I find useful really need to sync with my computer; first, because it’s easier to enter the data on the computer and, secondly, because you don’t want to be entering things twice or three times or ….

Unfortunately, the way the iPhone is designed to work means that most of these apps – sugarsync, Evernote etc. – work “in the cloud” (Our ABC here). They must be stored on the internet or pass through an internet host. That has potential security and privacy concerns (assuming the technology works).

That feeds into a different concern raised by Jonathan Zittrain in The Future of the Internet and How to Stop it. We are being present with a range of proprietary offerings that are acting a bit like gated communities in which you only get what the provider is willing to offer. Prof. Zittrain contrasts that to his view of the way the Web has worked till now: someone provided the underlying technology and hosts of people came along with hosts of customised solutions that you could choose to use.

Android? Well, it seems potentially to be much more open than the iPhone. Hopefully, it will force a lot more open-ness through competition but, of course, Google has its own “cloud”.

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