Ms Skildum-Reid’s application for preliminary discovery against the University of Queensland (UQ) has failed for a number of reasons, the most interesting of which is Derrington J’s ruling that it is likely that a six year statute of limitations applies to infringements of moral rights. Some background The problem An attempted solution The State statute of limitations applied Rule 7.23 Some background Ms Skildum-Reid is a corporate sponsorship consultant, adviser, speaker and author. Over the years since 2006, she has given presentations at various workshops. In the course of doing so, Ms Sk ..read more

Last week reviewed the notice and take down / moderation procedure the majority of the Full Federal Court adopted to limit the injunction against Redbubble’s trade mark infringement. In the course of allowing Redbubble’s appeal, the Full Federal Court also unanimously flagged significant questions about when the use of a trade mark on a website overseas may constitute trade mark infringement in Australia. On these matters, Perram and Downes JJ delivered the main reasons and Nicholas, Burley and Rofe JJ agreed. Some more facts Did this infringe? At first instance The appeal Why is a trap ‘vi ..read more

The Full Federal Court has allowed Redbubble’s appeal from the remedies granted for its eleven infringements of five Hells Angels’ registered trade marks. In doing so, the majority instituted a kind of monitoring and notice and take down system as a “safe harbour” against trade mark infringement. In addition, the Court raised questions about how use of a trade mark on a website overseas may, or may not, constitute infringing conduct in Australia. Some background The injunction Perram and Downes JJ Nicholas, Burley and Rofe JJ Concluding comments Some background Redbubble operates a websit ..read more

The High Court has refused Jusand’s application for special leave to appeal [1] the Full Federal Court’s affirmation that Jusand’s patent was invalid on sufficiency and support grounds under the Raising the Bar tests. In refusing special leave, the High Court simply stated: The proposed appeal does not have sufficient prospects of success. Otherwise, the proceedings are not a suitable vehicle for the point of principle the proposed appeal seeks to raise. I think Perram J’s reasons in the Full Federal Court were the first detailed consideration of the operation of these “new” provisions at th ..read more

Reflection upon those European and UK authorities yields the following principles: (i) The requirement of sufficiency imposed by art. 83 of the EPC exists to ensure that the extent of the monopoly conferred by the patent corresponds with the extent of the contribution which it makes to the art. (ii) In the case of a product claim, the contribution to the art is the ability of the skilled person to make the product itself, rather than (if different) the invention. (iii) Patentees are free to choose how widely to frame the range of products for which they claim protection. But they need to ensur ..read more

Judge Manousaridis has had to address whether criticism of the academic skill and rigour of the author of a scientific paper constitutes derogatory treatment in relation to the work. His Honour concluded it was not. Some facts The moral right of integrity Mr Hoser’s argument What the Judge decided Some facts Mr Hoser is the author of a number of papers in which, amongst other things, he describes or identifies new species and/or new sub-species of various animals.[1] Between 2015 and 2021, the respondents published a number of articles referencing Mr Hoser’s papers and making statements that ..read more

The United Kingdom Supreme Court has ruled that DABUS is not an inventor for the purposes of UK patent law and so Dr Thaler’s applications for a patent claimed to be invented by DABUS have failed. You will recall that Dr Thaler has applied in the UK (and many other parts of the world) for the grant of patents in his name for inventions said to have been generated by a machine acting autonomously and powered by the artificial intelligence, DABUS. Section 7 of the UK Patents Act 1977 provides in part: 7 Right to apply for and obtain a patent. (1) Any person may make an application for a patent ..read more

The High Court has unanimously allowed Real Estate Tool Box (RETB) and other parties’ appeals against findings that they had authorised infringements of copyright in Campaigntrack’s “DreamDesk” software. The High Court made a point of emphasising that whether a person can be found liable for authorising copyright infringement depends on “the proper inference to be drawn from all of the facts of the case.” I am afraid that, as their Honours said, “It is therefore necessary to set out those facts in some detail.” Some facts At trial The Full Court The law The High Court Some comments Some fact ..read more

The Commonwealth Attorney-General, Mark Dreyfus, yesterday announced that the Government will form a Copyright and Artificial Intelligence reference group “to better prepare for future copyright challenges emerging from AI.” The Attorney-General and his department have held a number of roundtables during the course of the year to consult about a range of issues. One of the issues discussed included the issues arising from the use of AI tools. According to the Media Release: AI gives rise to a number of important copyright issues, including the material used to train AI models, transparency of ..read more

In dismissing Lolicel’s opposition to the registration of SIMPLY DELISH by Stanmar, Assistant Commissioner Rendle excluded evidence witnessed by a patent attorney in Australia because a patent attorney is not authorised to witness a declaration under New Zealand’s Oaths and Declarations Act 1957. The Assistant Commissioner would have dismissed the opposition even if the evidence had been allowed. Background Stanmore applied to register SIMPLY DELISH, TMA No. 1163933, in respect of dessert mixes, dessert mousse, dessert puddings and the like in class 30. Lolicel opposed, claiming use of the mar ..read more