Author name: war

A barrister practising mainly in Australian patents, trade marks, copyright and other IP law; lecturer and contributing author to LexisNexis' Copyright & Designs and Patents looseleaf services

Substantial part of a video game

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The UK Court of Criminal Appeal has dismissed an appeal against a criminal conviction for selling modchips to enable Sony Playstations, Nintendo and Microsoft to play counterfeit games.

The 1709 [delete mouthfull of title] blog has a detailed report.

Those of us living in the autochthonous realm hidden away in the summer sun may find some interest in the reasons why the playing of the (counterfeit) games would result in a reproduction of a substantial part of the copyright – a point doubted or left open in Stevens v Sony [2005] HCA 58 at [80] – [99].

However, a considerable degree of caution will be required:

First, (what I guess constitutes a plurality of) the High Court has already ruled that a single image (or “frame”) from a film is not (or is not necessarily) a substantial part – at least of a television broadcast (Network Ten v Nine Network):

Secondly, as Stevens v Sony shows, Australia has very definitely embarked on its own course in relation to technological protection measures and this whole area of “meta” copyright.

Thirdly, at least 3 of the judges in the IceTV case resoundingly declared that it is not appropriate to test substantiality by reference to the taking of  the skill and effort of the author. Well, that is what they said; whether or not it is what they did is another matter. The 3 judges in the other judgment, of course, appear very much to have applied that misappropriation of the skill and effort (in expression) approach.

Those of you who are political philosophers or constitutional scholars may also look with some bemusement, or perhaps appreciation, on the Court of Criminal Appeal’s thundering against the idea of leaving to that engine of democracy, otherwise known as the jury, such recondite questions as copyright infringement, when perfectly well-trained Chancery judges were ready and waiting to serve. Of course, those of us who practise in the civil jurisdiction where IP cases are usually heard might well be horrified by the prospect of trying to present such a case to 12 men and women good and true!

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ACTA coming a little bit more out of the shadows

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Michael Geist has a link to the leaked EU comments on the chapter for third party liability on the internet – being drafted by the USA.

The Guardian has weighed into the debate.

Kim Weatherall has emerged from her self-imposed seclusion to comment here, here and here.

DFAT’s must recent summary and overview of key elements. Anondyne USTR statement.

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Parallel imports, books and Australia

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The Australian Government has announced today that it will not be changing the limitations in the Copyright Act on the parallel importation of books.

According to the Press Release:

Australian book printing and publishing is under strong competitive pressure from international online booksellers such as Amazon and The Book Depository and the Government has formed the view that that this pressure is likely to intensify.
In addition, the technology of electronic books (e-books) like Kindle Books will continue to improve with further innovations and price reductions expected.
The Government has not accepted the Productivity Commission’s recommendation to remove the parallel importation restrictions on books.

Australian book printing and publishing is under strong competitive pressure from international online booksellers such as Amazon and The Book Depository and the Government has formed the view that that this pressure is likely to intensify.

In addition, the technology of electronic books (e-books) like Kindle Books will continue to improve with further innovations and price reductions expected.

The Government has not accepted the Productivity Commission’s recommendation to remove the parallel importation restrictions on books.

You could write a book on the rules governing parallel importation of books so I won’t attempt to summarise them here.

The Productivity Commission’s report. I still don’t think there has been any answer to the question whether the prices of music CDs or computer software fell after open markets were introduced for those products.

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In re Bilski

4 Comments / Patents / / / , , , , , ,

Patently-O has extracts from and links to transcripts of the oral argument before the US Supreme Court and some informed reportage.

Also, make sure you read Prof. John Duffy’s rebuttal of the charge that the Federal Circuit’s decision in State Street “opening the floodgates” to business method patents is a case of judicial activisim gone wild.

Then ask yourself, would the world really be a better place if we all adopted the European practice of banning the patenting of  business methods and computer programs “as such“?

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Vegemite iSnack 2.0

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Kraft’s attempt to extend the Vegemite range has been attracting attention around the world.

Neil Wilkof considers what the impact from a trade mark or branding perspective was.

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boohoo.com v missboo.co.uk

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Warren J has granted an interim injunction to Wasabi Frog restraining until trial the operation of an online clothing retailer.

Wasabi Frog has traded since 2006 as an online retailer of young women’s fashion at Boo Hoo and Boohoo.com. It also has CTMs for BOO HOO, BOOHOO.COM and BOO.

missboo.co.uk started up in September 2009 as an online retailer of women’s fashion, targetting the same demographic: 17 to 25 year olds.

His Lordship found a triable issue on likelihood of confusion on the basis of a number of factors. One involved another player in the fashion industry apparently mistaking the applicant for the defendant.

Interestingly, another was the inferences to be drawn by traffic that Wasabi Frog generated after purchasing the Google Ad Words “Miss Boo”. Other aspects considered included the similarities in the respective companies’ websites and the “very very savvy” target markets of both companies.

Damages were clearly not an adequate remedy for Wasabi Frog, all the more so as the defendant was impecunious.

Wasabi Frog Ltd v Miss Boo Ltd [2009] EWHC 2767 (Ch)

Lid dip: Peter A Clarke

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A mere collocation

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The Full Federal Court (Finn, Bennett and Middleton JJ) has allowed an appeal against the grant of an interlocutory injunction which prevented Smith & Nephew entering the market .

The interlocutory injunction had been granted on the basis of a threatened infringement of claim 49 – apparently, only infringement of claim 49 had been pursued for the purposes of the interlocutory injunction.

Claim 49 was for:

An apparatus for applying negative pressure to a wound beneath a fluid-impermeable seal comprising: a screen means for positioning beneath said seal for preventing overgrowth of tissue in the wound, said screen means being sufficiently porous to allow gases to reach the wound and sufficiently rigid to prevent wound overgrowth, said screen means comprising an open cell polymer foam section configured to overlie the wound such that said negative pressure is maintained within said foam and applied to the wound; a flexible tube having an inlet and inserted into said open cell polymer foam section and an outlet end for extending from beneath said seal and for supplying said negative pressure; and wherein said apparatus is in an aseptic package.

The Full Court considered that all of the integers interacted in combination, save for the aseptic package. The aseptic package, while an essential integer, did not interact with the other integers in any meaningful way to produce negative pressure on a wound

25 There is no doubt that claim 49 is a claim to a combination. The question is whether each of the integers of the claim interact to produce negative wound pressure. It is to be asked how, if at all, does the aseptic package interact with the other integers to produce the result of negative wound pressure. It is the mere bag in which the device that ‘does the work’ is stored before use. It is discarded before any negative would pressure is applied. No doubt it is beneficial to have sterile packaging for a therapeutic device, however, the aseptic bag itself does nothing to cause, limit or affect the functional result of negative wound pressure as desired.

Accordingly, the claim was for a “mere collocation” and so was invalid.

Smith & Nephew Pty Ltd v Wake Forest University Health Sciences [2009] FCAFC 142

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Designs Law and Practice

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Prof. Ann Monotti and I will be teaching Designs Law and Practice in Monash Uni’s postgraduate program from 10 December to  15 December this year.

Details here.

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IPRIA Seminars

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Prof. Ann Monotti and other experts will be talking about what University of Western Australia v Gray means for Universities in

  1. Melbourne on 17 November
  2. Brisbane on 23 November; and
  3. Perth on 20 November.

Details and registration here.

Judge Hiroki Morishita will be providing an Introduction to the High Court of Intellectual Property in Japan on 9 November in Melbourne. Details and registration here.

And, if you’ve recovered from Oaks Day, you could find out what difference a patent makes in Melbourne on 6 November.

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IPwars and irregular posting

Leave a Comment / Because I felt like it / /

Due to the exigencies of my day job, it is unlikely that IPwars will be in a position to post with anything like a degree of frequency until after Cup Day.

Hope to see you at the other end of the tunnel!

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