June 2009

Parallel imports and books (again)

Professor Joshua Gans published an opinion piece railing in the Age against the laws restricting parallel imports of book (via his blog here).

The burden of his argument is that it is absurd and outrageous that he can’t even download an electronic copy of the book he authored for use on his Kindle here.

Now, don’t get me wrong, I’m very frustrated not to be able to buy anything on a Kindle here (when I’m not dreaming about what an Apple iTablet might be). It is absurd. It is outrageous.

He says:

So why is it possible for hard copies of books to move across international borders but not electronic copies? The answer is that publishers, who have intellectual monopolies over these works, for their own reasons have not done the deals to make it possible. Regardless of what I, as an author, might like, a gatekeeper is standing between my readers and my book.

But, this doesn’t have anything to do with the laws on parallel imports. As he points out, even under the laws he is trying to bring to an end, you, he and I can parallel import physical copies of his book.

Rather, the problem is that, he negotiated split publishing rights – University of NSW for Australia and The MIT Press for (at least) North America – presumably in the hope that the two publishers would maximise his returns from the different markets and he didn’t negotiate a global electronic rights deal.

Now, maybe he would say he tried and the publishers refused or, more likely, even if one gave a single publisher the global electronic publishing rights, maybe they would still parcel up the world into individual territories.

If you can do a deal to co-publish with 2 physical publishers, why not with a third electronic publisher like Amazon’s Kindle? Why not do the deal with Amazon’s Kindle (or someone like that) first and then line up the physical publisher?

Parallel imports and books (again) Read More »

Re-examining a patent

VIP Plastic Packaging is suing BMW Plastics for infringing the former’s standard patent for a “Variable-length dip tube for a fluid transfer container”.

BMW Plastics denies infringement and has counter-claimed for invalidity.

Now, Kenny J has refused BMW Plastics’ attempt to get an order to have the Commissioner re-examine VIP Plastic Packaging’s patent.

Section 97 provides for re-examination of a standard “patent” in 3 situations:

  1. following acceptance, but prior to grant;
  2. following grant (when no other relevant proceedings are on foot in the Court); or
  3. following a direction from the Court in the course of relevant proceedings.

In the first situation, the Commissioner can refuse to grant the patent following re-examination. In the second, the Commissioner can revoke. In the third, the Commissioner just prepares a report which (presumably) forms part of the evidence before the Court.

As reported by her Honour, BMW Plastics’ thinking was that the Commissioner could provide the benefit of technical expertise which the Court might otherwise not have and there might be a costs saving. To this end, it was prepared to undertake not to contest the findings of the Commissioner’s report. VIP Plastic Packaging refused to reciprocate and, rather heroically, BMW Plastics contended that Court should order VIP Plastic Packaging to be bound too.

Kenny J was (with respect) justifiably sceptical about the costs savings that might flow:

I doubt that the provision of a report by the Commissioner after re-examination would reduce the cost of this proceeding and expedite its determination. First, the Commissioner’s report after re-examination is not binding on the Court. In the absence of an undertaking of the kind sought by B.M.W. Plastics from VIP Plastic, the provision of a report under s 100 will not necessarily relieve the Court of the task of deciding the issues of novelty and lack of inventive step by reference to the admissible evidence. If the Commissioner’s report were unfavourable to VIP Plastic, it would desire to put on evidence and dispute the report. There may be additional issues for the Court to determine if it receives such a report. Further, both parties said that, regardless of the lack of novelty and inventive step grounds, there will be a need for evidence, including expert evidence, to be adduced before the Court on various other issues. In the circumstances, I am not persuaded that re-examination by the Commissioner would be most expeditious or reduce costs.

(my underlining)

VIP Plastic Packaging Pty Ltd v BMW Plastics Pty Ltd [2009] FCA 593

Re-examining a patent Read More »

Terms of Service Tracker

The blogosphere ‘lit up’ and Facebookers (?) went on the rampage when it emerged that Facebook was unilaterally changing its terms of use (and not telling anyone) – Facebook: All Your Stuff is Ours, Even if You Quit.

Jonathon Bailey at Plagiarism Today looks at the EFF’s new TOSBack so you can keep up to date with how your service provider is “shifting the goalposts”.

Google, for example, amongst other things insidiously changed “Terms of Service for Blogger.com” to “Blogger Terms of Service”. (Vote of thanks to whichever Supreme Being I’m following today that I don’t use Blogger!)

All joking aside (and remembering the outrage at Facebook – hope Twitter doesn’t own all my tweets?), this could be a very practical tool.

p.s. Facebook did allow its outraged users to set up a community on Facebook to campaign against the change.

Terms of Service Tracker Read More »

Madrid Protocol users

Apparently those of you out there doing Madrid Protocol filings are grumbling with discontent.

IPKat reports on the LinkedIn user group breakfast at INTA and the formation of a lobby group to get things done.

The group is a moderated Google group so you have to apply via email to join. Go direct here or, if you’re unfamiliar with Google groups (you will need to sign up for a “free” Google account) IPKat has the email details here.

Madrid Protocol users Read More »

Linklaters’ IP update

is online here.

ECJ highlights are:

  • Owners of registered trade marks for luxury goods will be encouraged by a ruling of the European Court of Justice in Copad SA v Christian Dior Couture SA.
  • The European Court of Justice has confirmed that domestic legislation which seeks to prohibit businesses from offering goods and services tied to the offer of other goods and services is in breach of EU consumer protection rules.

Linklaters’ IP update Read More »

Bilski v Doll

The US Supreme Court granted certiorari overnight. So, we’ll eventually get to find out about the patentability of business methods in the US.

Patently-O reports the questions are:

Whether the Federal Circuit erred by holding that a “process” must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing (“machine-or-transformation” test), to be eligible for patenting under 35 U.S.C. § 101, despite this Court’s precedent declining to limit the broad statutory grant of patent eligibility for “any” new and useful process beyond excluding patents for “laws of nature, physical phenomena, and abstract ideas.”

Whether the Federal Circuit’s “machine-or-transformation” test for patent eligibility, which effectively forecloses meaningful patent protection to many business methods, contradicts the clear Congressional intent that patents protect “method[s] of doing or conducting business.” 35 U.S.C. § 273.

Scotusblog has links to the docket and the rounds of briefs here.

The comments on Patently-O anticipate the end of State Street and business methods in the USA.

Bilski v Doll Read More »

WIPO Copyright progress

William Lye has a comprehensive report on the conclusion of the latest round of WIPO’s Standing Committee on Copyright – a late agreement:

  1. to address a proposed treaty on copyright exceptions for visually impaired persons and others; and
  2. for renewed focus on the rights of audio-visual performances; and
  3. to continue discussion on the need to protect (badly misunderstood) broadcasters.

William Lye’s report here; the Chairman’s draft conclusions here. The discussion of exceptions seems to be much broader than just rights of the visually impaired: full range of discussion papers and working materials here and here.

For some reason, the Australian government is opposed to the proposals for visually impaired persons: Nic Suzor wants to explain to you why you should do something to help change this here.

WIPO Copyright progress Read More »

Googling it …

From the blogsite:

We started with a set of tough questions:

  • Why do we have to live with divides between different types of communication — email versus chat, or conversations versus documents?
  • Could a single communications model span all or most of the systems in use on the web today, in one smooth continuum? How simple could we make it?
  • What if we tried designing a communications system that took advantage of computers’ current abilities, rather than imitating non-electronic forms? 

After months holed up in a conference room in the Sydney office … And now, after more than two years of expanding our ideas … Today we’re giving developers an early preview of 

Google Wave


Lid dip @joshgans; Where Tim O’Reilly sees it fitting in (via @dhowell via Dennis Kennedy via Shelley Powers). Mashable here and here.

Googling it … Read More »