Big week for parallel imports last week:
(1) the US Supreme Court declared US law applies a doctrine of international exhaustion for copyright material
(2) Adobe, Apple and Microsoft fronted the Australian Parliament to explain why digital “things” cost so much more in Australia than elsewhere (i.e., the USA).
Apple’s defence said, amongst other things, it was the price it had to pay to the owners of Australian copyright – lovely chart here. Other reports (with more analysis) here and here (which may be challenges Apple’s explanation a bit for its own products).
That didn’t really work as an explanation for Adobe, which gets lambasted here.
Perhaps, just maybe, treating digital downloads as a single global market might lead to some lowering of prices, but the beauty of digital delivery (from the content owner’s perspective) is that you can set your price and the customer can buy or not.
Is there a link between (1) and (2)?
In his analysis, Prof. Goldman sets out a number of reasons why he thinks Kirtsaeng, while it may provide some good news in terms of lower prices, will have only a short term effect.
(I suppose we can trumpet the fact that our technological protection measure protections don’t extend to protecting region coding (here and here), although I do wonder how one would prove that was the purpose of the (ac)tpm.)
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 was presumed to have adopted. As a result, Microsoft had to make its invalidity case “by clear and convincing evidence”. That is, there is a strong presumption of validity in the USA.
Microsoft Corp v i4i Limited Partnership
Initial commentary by Patently-O.
The case initially attracted international attention as Microsoft was ordered to stop selling versions of Word which had the capability of opening a .XML, .DOCX, or .DOCM file (“an XML file”) containing custom XML. This presumably means that Microsoft will have to pay the US$290 million damages awarded against it for infringement.
Under Australian law, a person alleging a granted patent is invalid has the onus of proof on the usual balance of probabilities standard.
A person opposing the grant of a patent, however, has to establish their case on the clear and convincing or practically certain standard. The exposure draft of the “Raising the Bar” amendment legislation proposes changing that standard, and the standard for acceptance, to the balance of probabilities standard too. (See items 14 and 15 of Sch. 1 (pdf) and pp 26 – 30 of the (draft) EM (pdf).
Patently-O speculates from the voting alignment of the current Court that the US Supreme Court is now shifting “to the right” or “pro-patentee”.
Selected microblog posts from the past week:
- RT @VogeleLaw: Found: Mary Beth Peter’s testimony (via @cathygellis – thanks!) http://bit.ly/Cijau #gbs_hearing [US Copyright Register opposes Google Book Settlement]
- Google Book in the EU? http://ff.im/-7OYfA
- RT @MegLG: A Billion Dollar Test of the DMCA Safe Harbors in Viacom v YouTube http://ow.ly/om66 via Cyberlaw Cases
Selected microblog posts from the past week:
- Wyeth gets interloc. injunction in Australia against Alphapharm for alleged infringement of Efexor-XR patent:http://bit.ly/dvYwy
- Kenny J also rejects a higher threshold for interlocutory injunctions in patent cases http://bit.ly/SQViX ; Beecham doesn’t rule.
Ernie the Attorney posts an interesting review of “Free the Market” by Gary L. Reback, apparently the principal Government lawyer behind the Justice Department’s anti-trust law suit against Microsoft.
The key question posed by the book is this: do we need better government regulation of the tech sector? Also: is the current state of technology development such that we need to re-examine how we use antitrust law to regulate it? These are important questions, and Reback does a great job of laying the groundwork for understanding these questions.
Fishpond’s price is AUD$36.69, which is not bad. If you do a search of the book on addall.com, you’ll see quite a number of bookshops are prepared to sell it for between US$6.60 and, say, US$20. That’s the new price, not just for used ones. The cheapest ones are mostly through Amazon. But, here’s the thing, none of them will sell them to Australia. You get a nice notice telling you that customs restrictions or somethings preclude the sale.
On 15 January 2009, the European Commission commenced new proceedings against Microsoft alleging that Microsoft was abusing its dominant position in the market by tying Internet Explorer to the Windows operating system:
According to the Commission:
The evidence gathered during the investigation leads the Commission to believe that the tying of Internet Explorer with Windows, which makes Internet Explorer available on 90% of the world’s PCs, distorts competition on the merits between competing web browsers insofar as it provides Internet Explorer with an artificial distribution advantage which other web browsers are unable to match. The Commission is concerned that through the tying, Microsoft shields Internet Explorer from head to head competition with other browsers which is detrimental to the pace of product innovation and to the quality of products which consumers ultimately obtain. In addition, the Commission is concerned that the ubiquity of Internet Explorer creates artificial incentives for content providers and software developers to design websites or software primarily for Internet Explorer which ultimately risks undermining competition and innovation in the provision of services to consumers.
Apparently, Microsoft has 8 weeks to reply.
Microsoft’s initial press release notes that the Statement of Objections served by the Commission specifically states that the US settlement with the DOJ in 2002 (Wikipedia here) does not make the inclusion of Internet Explorer in Windows lawful under EU law. Other than that it is fairly bland, as you would expect, stating that “We are committed to conducting our business in full compliance with European law.”
Read the Commission’s Press Release. Read Microsoft’s here or here.