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Mainly intellectual property (IP) issues Down Under

Phillip Morris sues Australia!

Phillip Morris has announced that it plans to sue Australia under the Australia-Hong Kong (SA) Bilateral Investment Treaty over the planned plain packaging legislation. What the Government is proposing to do Under the proposed Tobacco Plain Packaging Bill 2011, tobacco companies would be required to adopt a prescribed form of packaging for tobacco products. In its most recent form, this would involve all tobacco companies using the same olive brown.. Read More

How much to pay for an infringement

Over at the Fortnightly Review, Ass. Pro. David Brennan takes issue with the economists who argued that Larrikin should not have been paid any damages for the Kookaburra infringements. The economists’ argument seems to have been that Larrikin didn’t lose any sales as a result of Men at Works’ infringements and so suffered no loss. Damages under s 115(2) of the Copyright Act are compensatory: that is, they are calculated.. Read More

Raising the bar – some differences between the Exposure draft and the Bill

As noted previously, the Intellectual Property Laws (Raising the Bar) Amendments Bill was introduced earlier this week, following fairly extensive consultations on an exposure draft of the Bill. Patentology has now looked at some of the differences in the proposed changes to the Patents Act between the exposure draft and the Bill as introduced here. His earlier post looked at the different transitional regime for the new standards for patentability.

Will unsuccessful opponents be estopped?

As noted previously, the “Raising the Bar” bill aims to change the standard of proof required for acceptance of a patent application and for successful opposition from the prevailing “practically certain” or “clear” standard to a balance of probabilities. Currently, an unsuccessful opponent is not estopped from bringing revocation proceedings, largely because of the difference in onus applying at the opposition versus revocation stage: Genetics Institute v Kirin-Amgen at [17] and note.. Read More

The Raising the Bar Bill

Senator Carr introduced the Intellectual Property Laws (Raising the Bar) Bill 2011 into Parliament today. Press release Download the text of the Bill and EM from here (choose your own format). You will remember that (according to the Press Release) the main objects of the Bill include: raising patent standards to ensure Australian innovators are well placed to take their inventions to the world; increasing penalties for trade mark counterfeiters;.. Read More

A problem of expert evidence

VIP Plastics has successfully sued BMW Plastics for infringing its patent for a “Variable-length Dip Tube for a Fluid Transfer Container”. The most interesting point to emerge is why the expert evidence on one side prevailed and, on the other, failed – even so far as being rejected as inadmissible. How the battle was won As is typically the case, much of the battle turned on whether applicant’s expert evidence or.. Read More

ICANN approves ‘historic’ new gTLD regime

ICANN’s board meeting in Singapore today voted to launch new top level generic names: apparently 13 voted for, 1 opposed and 2 abstained. Currently, gTLDs there is a closed system, confined to 22 different types such as .com, .info, .biz etc. Under the new plan, there won’t be any limits on what can be the top level domain. Thus, if Sony wanted to launch its own top level domain such.. Read More

What happens on the Internet in 60 secs

70+ domain names registered 13,000+ iPhone apps downloaded 600+ new videos uploaded to YouTube … See the Infographic via Peter Black

iTunes Match and making Prof. Lessig’s case

Recap: Prof. Lessig’s argument. You will remember that Michael Speck from Music Industry Piracy Investigations was outraged by Apple’s pending iTunes Match service and, in particular, the part where the service would in your iCloud account copies of music on your hard drive which had not been bought through iTunes. At the time, it wasn’t clear (at least to me) whether Apple was going all gung-ho and just offering this.. Read More

Microsoft v i4i – US Supreme Court decides

Microsoft has lost its appeal to the US Supreme Court. Microsoft had argued it should have to prove its claim that i4i’s patent was invalid by “a preponderance of the evidence”. Under the US Patent Act, however, a patent having been granted after examination by the Commissioner is “presumed valid”. The US Supreme Court has ruled that “presumed valid” in this context had a settled common law meaning which Congress.. Read More