Copyright
Australia
Microsoft wins software infringement dispute in Federal Magistrates Court
The Federal Magistrates Court has found in favour of software publisher Microsoft Corporation ('Microsoft') in a copyright dispute against Rodney Mayhew. Identifying himself as one of the "Official Microsoft Windows Vista Beta Testers", Mr Mayhew offered and sold unlicensed copies of Microsoft software programs to the consumer public loaded onto a computer hard drive and supplied on CD-ROM. The Court held that the 'mere sale or offer for sale of the PC loaded with the unauthorised copies of the Microsoft Software' constituted a contravention of s 38(1) of the Copyright Act 1968 (Cth). Microsoft was therefore found to be entitled to compensatory damages for lost license fees under s 115(2) of the Act, and was awarded $1,126.35 in this respect. Additional damages totalling $12,000 were also awarded for the 'deliberate infringement of copyright for gain' tantamount to deliberate and flagrant conduct, and for Mr Mayhew's conduct in dealing with the claim and proceedings which ultimately frustrated the Court system.
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Full Federal court finds in favour of Foxtel in copyright infringement appeal
The Full Federal Court has dismissed an appeal by Fouad Haddad against the Federal Court's finding of copyright infringement by Mr Haddad. Mr Haddad was found to have been 'involved in the commission of flagrant breaches of Part VAA of the Copyright Act 1968 (Cth) by unauthorised use of Foxtel smartcards', and appealed against his conviction on the grounds that Foxtel did not make an 'encoded broadcast' as within the meaning of s 135AN of the Act. It was argued by Mr Haddad that the provision by Foxtel of its broadcasting service free of charge to a select number of persons contradicted s 16 of the Broadcasting Services Act 1992 (Cth) which requires the provision of these services to the general public only on payment of subscription fees. However, the Court held that the parties that were offered free of charge broadcast services by Foxtel had a 'rational connection or relationship with Foxtel' and were selected for specific commercial and philanthropic reasons, and therefore did not fall within the definition of the 'general public' as required by Mr Haddad's grounds for appeal.
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International
European Commissioner announces intention to extend copyright protection
The European Internal Market Commissioner has announced that he intends to put forward a proposal to extend the term of protection for sound recordings from 50 years to 95 years. If the proposal is adopted, the European rules on the copyright term for sound recordings will mirror those in the US. The extension of the term of protection would affect only performers and not composers. The Commission has stated that the proposal could be ready for adoption as early as mid 2008. In addition, the Commissioner has proposed a 'use it or lose it' provision which will allow a performer to change labels if their record company is unwilling to re-release a performance during the extended term.
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Trade Marks
Australia
Change of renewal period for trade marks to take effect on 28 March
In accordance with amendments to the legislation incorporated in the Trade Marks Amendment Act 2006, the period in which a trade mark can be renewed after it is due will reduce from 12 months to 6 months as of 28 March 2008. Trade marks due for renewal before 28 March 2008 will still be able to be renewed for up to 12 months after this date.
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Scotch Whisky association denied leave to appeal
The Federal Court has denied Scotch Whisky Association's leave to appeal over the trade mark 'Glenn Oaks'. As reported in our 30 November 2007 edition, the Federal Court had earlier found against Scotch Whisky in its opposition to the registration of 'Glenn Oaks' for bourbon products. Scotch Whisky had contended that the trial judge had failed to consider whether the trade mark would be contrary to law by contravening ss 52 or 53 of the Trade Practices Act 1974, would involve passing off or would contravene State legislation and that this was a clear prima facie case of error. However, Jessup J stated that such a conclusion should not be drawn by a single Judge of the Court and his Honour dismissed the leave for appeal.
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Patents
Australia
Full Federal court finds 'joint inventorship' in patent dispute case
The Full Federal Court has upheld a finding of joint inventorship in a patent dispute between Polwood Pty Ltd ('Polwood') and Foxworth Pty Ltd ('Foxworth'). Polwood claimed sole entitlement to the patent, which relates to both methods and apparatus for producing plant growth media (potting mix). Polwood argued that the invention was a single concept, which it had devised and which covered both the apparatus and the methods claimed. Foxworth argued that the apparatus it had developed was an inventive contribution to the invention. The Court accepted this argument, upholding the trial judge's finding of joint inventorship based on the entirety of the patent without any need to assess the parties' contributions to individual claims.
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International
Inventor awarded $us501 million in patent infringement case
Boston Scientific Corp. ('Boston Scientific') has been ordered to pay over $501 million to Mr Bruce Saffran for infringing his patent relating to drug delivery by coronary stents. The patent claims a device used to combat coronary artery disease by reducing blockage within the artery via a drug releasing layer that targets damaged tissue. Boston Scientific, who holds 55% of the market for drug-eluting stents, was found to employ an infringing layer in the Taxus Express and Taxus Liberté stents, prompting the jury to award Saffran $431.8 million US for the infringement of his patent. While Boston Scientific has announced it intends to appeal the verdict, it has subsequently been ordered to pay Saffran an additional $69 million US in pre-trial interest by a federal judge.
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UKIPO Amends Guidelines On Patentable Subject Matter
The UK Intellectual Property Office (UKIPO) has accepted the High Court's ruling in Astron Clinica Ltd v The Comptroller General of Patents (reported on in our February 15 edition) and has amended its guidelines on the issue. The High Court decision held that the UKIPO had been wrong to refuse all patent claims covering software embodied in computer disks and internet downloads. Despite accepting the decision, the UKIPO has stated that the ruling 'does not have the effect of making computer programs generally patentable in the UK but it does allow innovators to enforce all aspects of their patentable inventions directly'.
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Designs
Australia
Review Australia wins design infringement case
The Federal Court has found in favour of Review Australia Pty Ltd ('Review'), owner of registered designs relating to women's fashion, in an infringement dispute with Innovative Lifestyle Investments Pty Ltd ('Innovative'). Innovative contended that its conduct in procuring the manufacture of clothing of similar design to that registered by Review was not infringing as the products were manufactured by an independent subcontractor and thus Innovative had not 'made or offered to make a product' as required by the Designs Act. This argument was rejected by the Court, which stated that 'In the policy context of the Designs Act...the reference, in s 71(1)(a) thereof, to a person who "makes" a product includes a reference to a person who directs, causes or procures the product to be made by another, whether or not an employee of the person.' Review were awarded $7,500 in damages for the infringement, and $10,000 in additional damages for damage to their reputation.
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Internet
International
The Economist magazine fails to gain control of disputed domain name
The World Intellectual Property Organisation ('WIPO')'s dispute resolution service has denied financial magazine The Economist control of the internet address theeconomist.com. The site, registered to Jason Rose in 1996, displays a photo of former US Federal Reserve chairman Alan Greenspan with a caption calling him 'the economist of the century'. Under WIPO rules a domain name can only be transferred if three separate elements are shown to exist, one of which is that the address was registered and used in bad faith. The Economist failed to show that Rose, who claimed he had never heard of the magazine in 1996, had in fact registered the domain name in bad faith. WIPO panellist Sir Ian Barker, a QC, admitted that although Rose's claim was questionable, the WIPO system was not designed for ruling on such questions of fact, and therefore the registration remained with Rose.
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Policy Update
Rudd Government considers 'three-strikes' policy for music pirates
The Rudd government has announced its intention to consider a 'three-strikes' policy against computer users who download music illegally. The policy would mirror legislative provisions currently being introduced in the UK which require Internet Service Providers (ISPs) to police the activities of their subscribers. Under the new policy, offenders who illegally share music and video files using peer to peer technology would first be issued with a warning, followed by account suspension for any further infringement, and ultimately account cancellation for a third strike. Despite present legislation providing severe penalties for music piracy, Music Industry Piracy Investigations general manager Sabiene Heindl said that the manner in which pirated music is shared makes the crime more difficult to prosecute. 'Because P2P file sharing involves these music files sitting on individual people's computers, there is very little that MIPI can do to remove those files or stop them being shared,' she said. 'That's why we have been pushing a proposal to internet service providers for a commonsense system of warning notices which, if unheeded, would ultimately result in a user having their account suspended or disconnected.' National Internet Industry Association chief executive, Peter Corones, has expressed his members' reservations about the proposal.
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