Australia: Intellectual Property News

Last Updated: 17 January 2008
Article by Charles Alexander

Copyright

Australia

Federal Court finds copyright in files comprising source code, but no infringement

The Federal Court has found in favour of Bullet Creative Pty Ltd, a design company and its employee, Mr Petro, in its dispute with Dais Studio Pty Ltd (Dais) over copyright in Dais's source code of the website content management system it has developed. Dais alleged that Bullet and Petro had infringed its copyright in the source code by Petro's downloading of the code. Dais alleged that the files comprising the source code were separate computer programs that should be protected as literary works. The Federal Court held that these files were literary works, however it found that copyright had not been infringed as there had not been a reproduction of a substantial part of the files comprising the particular source code.

The case can be found at: http://www.austlii.edu.au/au/cases/cth/federal_ct/2007/2054.html

International

Beijing court upholds finding against Yahoo China

The Beijing Higher People's Court has upheld a finding that Yahoo China facilitated the infringement of copyright. Yahoo China claimed that search engines should not be held responsible for content on other websites, however, the court rejected this argument finding in favour of the International Federation of Phonographic Industries. Yahoo China have stated that they hope to reach an agreement with music companies allowing for the creation of a licensed download service.

Further information can be accessed at http://www.usatoday.com/tech/webguide/music/2007-12-21-yahoo-chinaruling_ N.htm

UK launches consultation process to liberalise format-shifting

The Minister for Intellectual Property launched a consultation process that will explore the possibility of legalising format-shifting. Such a move would allow consumers in the UK to legally transfer files between CDs and MP3 players. Further recommendations made by the Minister include an exception under copyright law for parody and allowing archives and libraries to use technology to preserve material if it is likely to deteriorate in its current form. The first stage of consultation is open until 8 April 2008.

Further information can be accessed at: http://www.managingip.com/Article.aspx?ArticleID=1850230&Title=UK%20prepa res%20to%20liberalize%20format-shifting

Trade marks

Australia

Trade Mark Office finds in favour of In Focus DVD Pty Limited

The Australian Trade Marks Office (TMO) has allowed the registration of 'InFocusDVD.com.au', despite opposition by InFocus Corporation (the opponent). The opponent alleged that In Focus DVD Pty Limited (the applicant) should be prevented from registering the trade mark as it was substantially identical or deceptively similar to their registered trademarks, including 'In focus' and 'Infocus engine' for electronic image display apparatus. The TMO found that the applicant's services of reselling DVD movies, electronic games, CD music and DVD music were not closely related to the opponent's goods. Furthermore, the TMO found that the opponent's trade marks had not acquired a sufficient reputation in Australia and the applicant's trade mark was capable of distinguishing their services.

The case can be accessed at: http://www.austlii.edu.au/au/cases/cth/ATMO/2007/76.html

Patents

Australia

Australian Patent Office finds in favour of Nektar Therapeutics

Alkermes, Inc has had some success in its opposition to a patent application by Nektar Therapeutics relating to the use of perforated microparticles for delivery of an immunoactive agent. Alkermes succeeded in demonstrating a number of Nektar's proposed claims lacked novelty. However the Delegate of the Commission of Patents found against Alkermes on the issue of fair basing. Alkermes had argued Nektar's divisional application was not fairly based on its priority documents and therefore those priority documents would be novelty-destroying on a whole of contents basis. The Delegate rejected this argument, finding instead that a document that that did not "plainly foreshadow" the claimed invention (and therefore could not be a priority document) similarly could not contain the "clear and unmistakable" directions necessary to succeed in an attack on novelty.

The case can be found at: http://www.austlii.edu.au/au/cases/cth/APO/2007/39.html

International

UK High Court makes negative declaration regarding 3G patents

The UK High Court has handed down the first decision in that jurisdiction on the essentiality of a given patent to a technical standard, namely the European 3G Telecoms Standard. Under relevant law, patent holders are required to grant licences to any patents found to be essential to a declared technical standard and, conversely, manufacturers implementing the standard are likely to be found to be infringing if they do not obtain licences to essential patents. Here, Nokia sought a declaration that a number of patents owned by US company InterDigital were not essential to the 3G mobile phone standard. Accepting Nokia's arguments, the Court ruled that three of the patents and one claim of a fourth patent were not essential. One claim of the fourth patent was, however, found to be essential. In reaching its decision, the Court was required to consider whether it had the power to make a "negative declaration" and found that it was so empowered. InterDigital is expected to appeal.

The case can be found at: http://www.bailii.org/cgibin/ markup.cgi?doc=/ew/cases/EWHC/Patents/2007/3077.html&query=nokia&me thod=boolean

Designs

Australia

Australian Designs Office finds that confidentiality was lost once application for patent was made

The Australian Designs Office (ADO) has found that Trailer Vision Pty Ltd (the applicant), is not entitled to designs registered to Locmac Holdings Pty Ltd (Locmac). The applicant had argued entitlement to the designs based on a working relationship between the parties, or, alternatively, based on the fact the designs were derived from confidential information disclosed to Lomac by the applicant. The delegate found no basis in the parties' relationship for any entitlement and found that the designs could not be found to have relied upon confidential disclosures given the relevant information had entered the public domain "long before" the designs were applied for, as it formed part of a published patent application.

The case can be found at: http://www.austlii.edu.au/au/cases/cth/ADO/2007/7.html

Internet

International

Google gains USA federal approval for bid for DoubleClick

The USA's Federal Trade Commission (FTC) has approved Google's $3.1 billion bid for Internet advertiser DoubleClick. A majority of the FTC found that the proposed acquisition is 'unlikely to substantially lessen competition'. The European Commission is yet to grant clearance for the deal. The deadline of the European Commission's review is 2 April 2008.

Further information can be accessed at: http://www.usatoday.com/tech/techinvestor/corporatenews/2007-12-20-googledoubleclick_ N.htm

Policy Update

Communications Minister to outline policy development strategy for internet content filtering

The Communications Minister, Stephen Conroy will outline a policy development strategy for the Government's controversial internet content filtering plans in late February. The Government is proposing internet server provider level filtering that users will be able to opt out of. The Government has confirmed that it will be informed by at least two reports into its proposal; the first report being commissioned by the Internet Industry Association and the second being generated by the Australian Communications and Media Authority (ACMA).

Further information can be found at: http://www.australianit.news.com.au/story/0,24897,23021645-5013044,00.html

ACMA Releases Restricted Access Systems Declaration

The Australian Communications and Media Authority (ACMA) has released the final Restricted Access Systems Declaration 2007 (the Declaration) which will commence on 20 January 2008. The Declaration is mandated by amendments to the Broadcasting Services Act 1992 (Cth) which regulate content delivered over the internet, mobile phones and other convergent devices. The Declaration sets out the elements of systems required by the the amendments to be in place to limit access to prohibited or potentially prohibited content. Prohibited content includes content classified R18+, and in some circumstances content classified MA15+.

http://www.minterellison.com/public/connect/Internet/Home/Legal+Insights/Alert s/NA-ACMA+releases+Restricted+Access+Systems+Declaration

Review Of The Extension Of Legal Deposit

A Review of the Extension of Legal Deposit is being conducted jointly by the Attorney- General's Department and the Department of Broadband, Communications and the Digital Economy. The Review considers whether films, sounds recordings and other materials in an electronic form should be required to be deposited with the National Library of Australia or another collecting institution. A discussion paper on the Extension of Legal Deposit was released in late 2007 and submissions have now been received.

Further information can be found at: http://www.ag.gov.au/www/agd/agd.nsf/Page/RWP6C58A15A095D9476CA25737 200035E3E

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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