Interlocutory injunctions in patent disputes

An injunction is a Court order directing a person or entity to do a specific thing or refrain from doing something.  Whilst an injunction in itself can amount to final relief in litigious matters, it can also be sought on an interlocutory or temporary basis (Interlocutory Injunction).  This applies where a temporary remedy is sought to maintain the status quo until the larger legal issues can be heard at trial.

In matters relating to the infringement of a patent, an injunction may be sought by the patent owner (Applicant) to stop a defendant (Respondent) from doing the acts the patent owner alleges infringe the patent, until the Court has had the opportunity to determine whether or not the patent has been infringed.  In this article we consider Interlocutory Injunctions in patent matters and how the tests differ from non-patent matters. [Read more…]

Artificial intelligence – introductory thoughts on the legal issues

Whenever there is a wave of innovation, in the absence of statute, the Courts necessarily apply old world legal principles to the new technology.  This was certainly the case when social media and online business became mainstream.  Similarly the law in Australia that applies to bitcoin and the blockchain has left the promoters of initial coin offerings (ICO’s) struggling to understand their legal position – see our article titled:  “What is an initial coin offering”.  The advent of artificial intelligence (Artificial Intelligence or AI) however creates somewhat more challenging legal issues to be considered by technology lawyers whose client’s seek to develop applications with embedded AI. [Read more…]

Disputing ownership of a patent – joint inventors

The Patents Act 1990 (Cth) (Act) provides the framework for patent registration and regulation in Australia. [Read more…]

What is an injunction?

An injunction in its simplest form is a Court order directing a person or entity to do a specific thing (Mandatory Injunction) or, more commonly, to not do a specific thing (Prohibitory Injunction).  Whilst an injunction in itself can amount to final relief in a matter, it is generally sought on an interlocutory basis (Interlocutory Injunction) which is where a temporary remedy is sought to maintain the status quo until the larger matter can be heard.  If a temporary order is granted it will generally become permanent if the applicant is successful in the larger claim. [Read more…]

Can you infringe a trade mark by exporting a product?

A trade mark is a sign used to distinguish goods or services from other similar goods or services, generally to associate that good or service with a brand.  Trade mark signs are a valuable form of intellectual property as they allow consumer to quickly and easily associate products with their favourite brands.  In Australia, the Trade Marks Act 1995 (Cth) (Trade Marks Act) provides protection for the owners of registered trade marks.  In this article, we consider whether a person infringes a trade mark by manufacturing a good to sell overseas rather than in Australia – does the Trade Marks Act protect the Australian trade mark owner? [Read more…]

Is the use of a trade mark in AdWords an infringement?

The concept of ‘Googling’ has become a part of everyday life.  But does anyone ever stop to think how Google results are collated?  In the case of Veda Advantage Limited v Malouf Group Enterprises Pty Limited [2016] FCA 255 (Veda Advantage case) one company did just that, and they were not happy with the answer.  The case concerned the use of registered trade marks as keywords and in the title tags and descriptions of sponsored link advertising in the Google AdWords program. [Read more…]

Take care when alleging patent infringement

A patent entitles the holder to exploit the invention disclosed in the patent to the exclusion of all others (unless authorised by the holder of the patent).  Where the patent holder is made aware of the use of their invention by another who is not authorised to do so, they may commence patent infringement proceedings to recover the loss sustained because of the infringement.  It is important for patent holders to be aware of the provisions rules regarding making unjust threats of patent infringement.  The recent decision in Mizzi Family Holdings Pty Ltd v Morellini (No 3) [2017] FCA 870 provides an example of how the Court considered an unjust threat of patent infringement and the damages that may be payable by the maker of such threats. [Read more…]

What is an end user licence agreement?

An end user licence agreement (EULA) is a contract between two or more parties based on the proprietary rights of a licensor to grant a right to the licensee/s to use or access a product or service.  The proprietary right may be based on a variety of intellectual property (IP) rights, including copyright, trade marks, patents, designs and trade secrets.  EULAs are common in the software and web development industries, where copyright subsists in the written code of a program or website as a literary work in under the Copyright Act 1968 (Cth). [Read more…]

Infringement of copyright in computer code

Computer code, like other literary works are automatically protected by copyright.  Subject to exceptions, only the copyright owner has the exclusive right to reproduce a literary work in which copyright subsists, pursuant to section 31 of the Copyright Act 1968 (Cth) (Act).   Generally the reproduction of another programmer’s code without their consent amounts to an infringement of copyright – section 36 of the Act.
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Patents, grace periods and revocation – how does it all work?

The registration of a patent entitles the owner to protection of their invention under the provisions of the Patents Act 1990 (Cth) (Act).  In order to qualify for these protections, the invention must pass the tests for patentability set out in the Act.  Part of these tests require that the invention must be new, with the Act distinguishing between patents based on their ‘inventiveness’ or ‘newness’; between standard patents and innovation patents.  Regardless of this distinction, a patent will not be granted where the invention is known to the public through prior use or disclosure of the invention.  In this article, we consider the implication of disclosure of an invention prior to application and the effect of the ‘grace periods’ on revocation. [Read more…]

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