Archive for December 24th, 2010

Summer daze

Friday, December 24th, 2010

IPwars has headed off for the summer sun.

Thank you for reading during the year, I hope you found something interesting and informative.

In the meantime, I wish you the compliments of the season and hope to see you again in the New Year (hopefully after Australia day celebrations).

The fee for using music in gyms

Friday, December 24th, 2010

Back in May, the Copyright Tribunal bumped up the fee payable for using recorded music in gym classes to $15 a class or $1 per attendee.

The Full Court has an allowed an “appeal” from that decision on the grounds of denial of natural justice. In setting the rate, the Tribunal had rejected the market survey relied on by the applicants, but had used the ‘rough and ready’ “pilot”. When the applicants opened the case, however, they expressly disavowed reliance on that first “pilot”. The subsequent evidence of the gym clubs referring to the survey was not sufficient to make it part of the case.

In short, the Full Court’s ruling does not affect principle (at least in terms of how much to pay); it is “procedural”, requiring the Tribunal to set the rate based on the material before it.

Fitness Australia Ltd v Copyright Tribunal [2010] FCAFC 148

A different take on originality (to IceTV and its progeny?)

Friday, December 24th, 2010

(Apparently) unlike its Australian counterpart, the High Court in England has reportedly found copyright in newspaper headlines (here and here).

In a variation on the theme, the Court of Appeal has referred a number of questions to the Court of Justice relating to the originality of football fixtures, so may be some definitiveness and uniformity (at least in Europe) will emerge in due course.

Gene patents

Friday, December 24th, 2010

The Commonwealth Senate’s Community Affairs committee tabled its report into the patenting of genes towards the end of last month.

After commenting on the still continuing cases (in both the USA and here), the Committee noted:

The Committee will continue to monitor these important international and national legal developments, and notes that these cases may bring greater clarity to the application of the invention-discovery distinction to isolated genetic materials. As part of its watching brief on this area, the Committee may wish to revisit this issue if the area remains problematic following the outcomes of these cases.

The, after referring to the private members bill (see below), the Committee recommended:

The Committee believes that the introduction of the Bill to the Senate will provide a further, and much-needed, opportunity for the arguments and questions around the impacts and effectiveness of an express prohibition on gene patents to be considered. The Committee is of the view that a Senate inquiry into the Bill should be undertaken, with a focus on the specific terms of the proposed amendments and the implications of their implementation for human health and other potentially affected fields of innovation. The Committee notes that its inquiry into gene patents has served a valuable purpose in bringing the issue of gene patenting to the light of public interest and attention, and provides a sound basis on which a targeted inquiry into the Bill can build. Accordingly, Recommendation 3 of the report requests that the Senate refer the Bill to a relevant Senate Committee for inquiry and report.

Then, there are a bundle of recommendations:

  • increase the threshold requirements of patentability (improve patent quality);
  • reduce the scope of patent claims;
  • reinforce mechanisms and policies by which governments can and should intervene with the rights of patent holders; and
  • assist judicial interpretation of the Act and establish an external accountability and quality control mechanism for the patent system.

Recommendation 9 appears directed at the Lockwood No 1 ruling:

5.175    The Committee recommends that the Patents Act 1990 be amended to introduce descriptive support requirements, including that the whole scope of the claimed invention be enabled and that the description provide sufficient information to allow the skilled addressee to perform the invention without undue experimentation.

Recommendation 16 called for the establishment of a patent audit committee.

Patentology commented here.

In the same week, Senators Heffernan, Coonan, Stewart and Xenophon and introduced their private members’ bill, Patent Amendment (Human Genes and Biological Materials) Bill 2010, which (according to the Parliamentary bills summary) is intended prevent the patenting of biological materials which are identical or substantially identical to materials as they exist in nature.

As Patentology reports here, it has been referred to the Senate’s Legal and Constitutional Affairs Committee for inquiry. Your comments are requested by 25 February 2011 and the Committee is scheduled to report by 16 June 2011.

In a different environment, the US Justice Department, perhaps surprisingly, filed an amicus brief in the Myriad appeal supporting the District Court’s conclusion that the patent was invalid.