Intellectual Property News

Parliament will introduce experimental use exception to Patent Act

The Australian parliament has announced its intention to make amendments to the Patents Act to ensure that researchers and businesses can accelerate the pace of innovation. The move comes after the Advisory Council on Intellectual Property (ACIP) was asked to examine the patent system in Australia. The Government accepted all of the ACIP's recommendations, including that an experimental use provision be introduced. The amendments will outline the research activities which can be undertaken without infringing a patent holder's right, including: determining how the invention works, determining the scope of the invention, determining whether there are avenues for improvement, and assessing the validity of the claims. The changes are said to give researchers greater scope to test fresh ideas and rediscover something new about an invention without the threat of patent infringement.

The recommendations can be accessed at:
http://www.ipaustralia.gov.au/pdfs/news/20070708.pdf

The press release can be accessed at:
http://www.ipaustralia.gov.au/pdfs/news/CMR07-389.pdf

A trial Judge in the US District Court of California has reversed a $USD1.5 billion jury verdict against Microsoft for infringement of a patent for MP3 technology held by Alcatel-Lucent (Lucent). Microsoft uses the MP3 patent in its 'Windows Media Player' software, and paid a licence fee to a consortium, which includes the Fraunhofer institute (a co-owner of the patent), for the use of the right. Lucent claimed that Microsoft infringed patents relating to the technology before it worked with Fraunhofer, and was therefore owed royalties from Microsoft. In overruling the jury verdict, the trial judge held that since one of the particular patents was not owned outright by Lucent, and because Microsoft had a licence to use the patent through its co-owner, Fraunhofer, Microsoft did not infringe Lucent's patent. Microsoft saw the ruling as a 'victory for consumers of digital music and a triumph for common sense in the patent system'. Lucent may appeal the ruling.

The article can be accessed at:
http://www.out-law.com/page-8362

Patents continued

Patent suit brought against Apple for iPhone keyboard

SP Technologies, a Florida-based technology company, has filed a patent infringement claim against Apple in a US Federal Court in Texas. SP Technologies alleges that Apple's 'iPhone' infringed their patent for a 'readable keyboard display' which is similar to the iPhone's touch screen. SP Technologies is seeking 'reasonable royalties' from Apple and a permanent injunction preventing Apple from using the patent in its hardware. Further information can be accessed at:
http://www.out-law.com/page-8360

The Madras High Court has dismissed a challenge to India's patent law by Novartis, a Swiss drug company, which sought to argue that s 3(d) of India's patent law was unconstitutional and did not comply with the World Trade Organisation's 'TRIPS' agreement. Novartis challenged the law after its patent application for Glivec, a pharmaceutical product, was rejected under s 3(d) of the law which requires salts and other derivatives to 'differ significantly in properties with regard to efficacy' in order to be patented. Patent protection for pharmaceuticals was only introduced in India in 2005. Activist organisations which campaign for greater access to medicines claimed that if the challenge to the new patent law was successful, it would restrict access to affordable medicine in the developing world. Novartis denied these allegations and asserted that international agreements safeguard access to medicines.

Further information can be accessed at:
http://www.managingip.com/Article.aspx?ArticleID=1401051&LS=EMS136797

Nine Network Australia Pty Ltd (Nine) has been unsuccessful in an action for infringement of copyright against IceTV, a company which produces an electronic program guide (EPG) called 'The IceGuide', in the Federal Court. Nine brought the copyright action against IceTV on the basis that their electronic program guide infringed Nine's copyright by reproducing its Weekly Schedule in electronic form. The Court held that Nine owned the copyright in its program guide, however dismissed Nine's infringement claim on the basis that IceTV 'does not reproduce a substantial part of' Nine's guide. The Court noted that IceTV's EPG was compiled independently, and its arrangement and expression of information differed from that in Nine's Weekly Schedule. The Court ordered the parties to make submissions as to costs.

The decision can be accessed at:
http://www.austlii.edu.au/au/cases/cth/federal_ct/2007/1172.html

The Full Federal Court has handed down a decision in which the Court was asked to determine whether the Copyright Tribunal could, as a matter of law, grant access to results from surveys of school copying conducted by CAL, to the Copyright Advisory Group which represents the schools. The Court determined that there was nothing in the Act which would prevent the Tribunal granting access to the surveys. The Court emphasised that whether access should be granted and if so on what terms was a matter for the Tribunal to determine. Costs were awarded against Copyright Agency Limited.

The decision can be accessed at:
http://www.austlii.edu.au/au/cases/cth/FCAFC/2007/124.html

A report by the New Zealand Commerce Committee, a parliamentary select committee, has recommended that alterations be made to the Copyright (New Technologies and Performers' Rights) Amendment Bill which could affect format shifting provisions. Format shifting provisions in other jurisdictions, including Australia, operate as an exception to copyright infringement by allowing individuals to copy music from one form to another form for personal use, for example, from a CD to an MP3 player. The Committee recommended that a two year sunset clause on format shifting be removed from the Bill, and should be replaced by a clause which provides music companies with an option to opt out of the provision. Consumer rights organisations have criticised the recommendations questioning why format shifting provisions exist if companies can opt out of them. The Bill will now go before the New Zealand parliament for its third reading.

Further information can be accessed at:
http://www.managingip.com/Article.aspx?ArticleID=1401046&LS=EMS136797

The music publisher of Eminem, a rap musician, has sued Apple Inc. for copyright infringement, claiming that Apple allowed unauthorised downloads of Eminem's songs. The multi-million dollar suit was filed in a US District Court in Detroit. The complaint follows a previous copyright dispute brought by the artist in 2004 concerning the use of Eminem's music in a TV commercial for Apple's iTunes music store which was settled out of court.

Further information can be accessed at:
http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1185883297815

The Computer & Communications Industry Association (CCIA) has filed a complaint with the Federal Trade Commission asking it to investigate a 'nationwide pattern of unfair and deceptive trade practices' with regard to copyright notices. The CCIA, whose members include Google and Microsoft, claim that content owners publish copyright warnings on their products to intimidate the public and deny them their right to copy the material on a fair-use basis. The complaint was filed against Major League Baseball, the National Football League, NBC/Universal, DreamWorks, Harcourt and Penguin. The CCIA stated, 'In some cases, copyright holders threaten criminal and civil penalties against consumers who choose to exercise Constitutionally guaranteed rights', and this is a violation of the law of fair-use. NBC/Universal has denied there is anything untruthful or deceptive about the copyright notices.

Further information can be accessed at:
http://www.managingip.com/Article.aspx?ArticleID=1401114&LS=EMS136797

Toyota is considering legal action against Jetstar, an Australian airline, over its use of a 'Toyota-style' jump in its advertising campaign. A Toyota spokesperson stated, 'Someone has executed a jump that is not dissimilar to ours and it would be remiss of us to ensure that our brand isn't properly protected'. Toyota has not yet formed an opinion whether or not to proceed with the complaint.

Further information can be accessed at:
http://www.smh.com.au/articles/2007/08/04/1185648204805.html

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.