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I was interested, the other day, to see this Online Opinion article by Nick Gruen (Club Troppo) on Australia’s pharmaceutical industry and the idea of manufacturing generics for export. The basic point of in Nick’s post is that investment in the manufacture of generic biologics in Australia is being prevented by Australian patent law and provisions introduced by the AUSFTA (or, at least, government’s interpretation of those provisions). In summary:

1. Australia extends the term of patents for pharmaceuticals to compensate drug companies for delays in the marketing approval process;
2. Patents last longer in Australia than elsewhere - at least partly because pharma companies apply for marketing approval later here than elsewhere, which means marketing approval is granted later, which means the drugs come off patent later.
3. You can’t manufacture for export during the (extended) patent term, even for export (ie even where the drugs won’t be sold in Australia, and even if they’ll only be sold where the drug is off patent);
4. By the time the drugs are off-patent in Australia, generic manufacturing based elsewhere in the world has garnered post-patent market share in many countries, putting a company that manufactures in Australia too far behind the eight-ball;
5. Result: generics manufacture not possible in Australia meaning that high tech industry not possible here - even though result is only that the manufacture ends up elsewhere (like India) where there is no patent term extension.

Since I’m on record as saying that actual changes to IP law brought about by the AUSFTA were less dramatic than people said at the time, this warranted investigation. So I’ve investigated.

My view? Looking at the literal terms of AUSFTA, it looks like there are reasonably supportable ways through for Australia. AUSFTA is constraining (more constraining than TRIPS is), and that is a problem. But there’s always some room for interpretation. Which makes me wonder. Is this another potential case of Australia being the overly-conscientious ’stick to full letter and spirit of the treaty law’, ‘don’t rock the boat’ goody two-shoes, adopting a conservative interpretation of treaty language that prevents it taking full advantage of the flexibilities available? More over the fold. (more…)

SMH has the story here.

more analysis later.
updated: judgment now available on AustLII.
Further update: commentary will have to wait until after my classes today. But please consider this an open thread for any discussion!
Further Further Update: Warwick Rothnie has some very interesting thoughts on the case here. He’s certainly right about one thing. There’s a heckuva lot of food for thought in these judgments.

“Senator Kim Carr, Minister for Innovation, Industry, Science and Research, today called for written submissions on proposed reforms to Australia’s intellectual property (IP) system.

A strong and efficient IP system is a cornerstone of successful innovation.

The proposed reforms are designed to help Australian innovators take their inventions to a global marketplace and encourage foreign investors to bring their new technology to Australia.

This means growth both for our economy and our skilled workforce.

The call for submissions provides a valuable opportunity for interested parties to contribute to the Government’s work in strengthening Australia’s innovation sector and boosting the nation’s economic prosperity.

The multifaceted reforms aim to reduce barriers in the innovation landscape for researchers and inventors, allow patent claims to be resolved faster and strengthen penalties for counterfeiting and other serious forms of trade mark infringement.

The Australian Government is committed to working with business and professionals to get the balance right so the IP system can better serve innovation in Australia.”

Media Release here.
Discussion/Reform Papers on IP Australia Website here.

Submissions due by 8 May 2009.

According to the Exec Summaries of the two papers, the proposed reforms aim to improve the balance in the patent system by:

1. raising the thresholds set for grant of a patent in Australia and better aligning Australia’s key
   patentability standards with standards in countries which are our major trading partners; and
2. improving the scope and stringency of examination to reduce inconsistencies and give
   greater certainty in the validity of granted patents.
3. introducing a statutory exemption covering certain experimental activities

Let the fun begin!

I’ve discovered podcasts. Yes, I know it’s a little late in the piece, but really, it’s been a pretty recent thing: since I (a) got an iPhone and (b) started walking to work every day. At half an hour each day, I get a lot of listening done and music doesn’t quite do it for me. And lo and behold, there are all these interesting things to listen to online. I want to promote one specific thing, which is actually not a podcast, but a Webinar:

Managing IP magazine’s Asia editor Peter Ollier will be conducting a live online interview with IP Australia director general Philip Noonan on Friday March 6 at 4pm Australian Eastern Standard Time (3pm for us Brisbanites).

The one-hour interview will cover topics such as the recommendations in Terry Cutler’s venturousaustralia report, innovative step and inventive step in Australia’s patent law, the controversial Anti Counterfeiting Trade Agreement and the impact of the credit crunch on patent and trade mark applications in Australia. Registration for this event is free. To register please go to www.managingip.com/webseminars. Listeners will also be able to submit questions during the interview. Click here to go to the registration page.

Hey, how often do you get to hear about IP from the ‘horse’s mouth’, the dude in charge, so to speak? Think up your tricky questions about ACTA and the Innovation Review now! The other thing I wanted to mention was podcasts. There are a lot of cool podcasts out there. Apart from the wonderful material from our ABC, it’s worth highlighting:

1. The IP Colloquium (run by Doug Lichtman, UCLA);
2. The Software Freedom Law Center podcasts (all things open source)
3. The amazing collection of stuff at iTunes U - lots of free lectures on all kinds of interesting things: from Berkeley, Stanford, LSE and other exciting places;
4. TED.com. Very cool.
5. Digital Planet at the BBC
6. Search Engine on CBC (Canadian Radio)
7. Academic Earth (great lectures on all kinds of topics)

I’m sure there are others. Feel free to add them in the comments. Always looking for good new listening!

IP Australia is reviewing the penalties (criminal offences) and additional damages in trade mark law. Actually, they’ve been reviewing this for a while: we had the ACIP Review, and then an Options Paper (pdf) published by IP Australia back in November; submissions on the Options Paper close this week.

Anyway, I was just reading through the options paper again, and I noticed that IP Australia is proposing to adopt something like the tiered system of liability that we now have in the Copyright Act: or at least, some of it. They are proposing to have indictable offences for intentional trade mark infringement, and summary offences for negligent trade mark infringement. This, of course, is based on the Copyright Act system. And so I thought it was raising the question again: what kind of a silly standard for criminal liability for IP infringement is negligence? (more…)

Hi everyone (or at least, those of you who are still there. probably just an echo, right?). Been a while, hasn’t it?

I’d vowed to resist, so far as possible, the blogging thing on IP. There were good reasons for resisting: I have lots of other work to do; I need to spend time working on publishable material rather than current commentary; after my last post a certain friend and colleague started calling me Kimberlee ‘Sue the User’ Weatherall … (ok that last one was just funny). And, of course, there’s been plenty of people to fill the gap: Warwick Rothnie, Nic Suzor, the wonderful folks at the Australian Trade Marks Law Blog…

But you know, every now and then I get the urge to say something. So I’m not going to apologise for radio silence. But I am going to post. Sometimes. When I think something won’t be covered by anyone else!

Artist Shepard Fairey, who created the “Hope” poster of now President Obama, has filed a pre-emptive law suit against the Associated Press. The suit, which has been filed in United States District Court in New York, seeks a declaratory judgement for Fairey ruling that the poster is protected by fair use and does not infringe AP’s copyright in the photograph. The suit also seeks an injunction preventing AP from asserting its copyright in the photograph against Fairey.

From left to right: the original AP photograph (taken by Mannie Garcia in April 2006) and Shepard Fairey's poster

So, how does Fairey’s claim measure up against the four factors considered in fair use arguments? (more…)

Ever wanted a copy of the Australian Constitution when not at your desk? If so, you may be interested to hear that the full text of the Australian Constitution is now available for your iPhone (or iPod Touch). It’s a free application, available internationally through iTunes (please note that this link will work only if you have iTunes installed).

It may interest readers to know that our own Ben wrote the application and uploaded it to the Apple App Store.

Thanks, Ben!

There is certainly a value to social networking websites. Some serve professional networking purposes (such as LinkedIn). And others, like Facebook, have proved to be an effective means of connecting with old friends (for me, including ones I’d lost touch with completely).

It’s not news that we use these websites at our own peril. But here’s a couple of more reasons to be wary, both legal and technical.

A new Facebook notification? “You’ve been served!”

In what seems to be a legal first, a judge of the Australian Capital Territory Supreme Court has upheld the right of lawyers to serve legally binding court documents and notices by posting them on defendants’ Facebook sites.

Plaintiff MKM Capital applied to Master David Harper of the Supreme Court to use Facebook to serve notice of a judgment on two borrowers who had defaulted on a loan. The defendants had failed to repay a loan of $150,000 they borrowed from MKM last year to refinance their mortgage. After being granted a default judgment for the loan amount and for possession of the house after the couple failed to appear in court to defend the action, MKM then had to locate the defendants and serve them with the papers.

After hiring private investigators and 11 failed attempts to find the couple, the lawyers identified the Facebook profiles of the defendants, convinced the court that those profiles did in fact belong to the couple, and satisfied the court that communication through their Facebook pages was a sufficient means of communicating with the defendants.

Wormholes

It was just a matter of time before social networking websites became infected with computer viruses. And now it’s happened: Koobface, a Trojan worm, has been making its way through Facebook and to other social networking websites. The worm generates profile comments that encourage users to click through to an external website that pretends to offer a video to view, but then says that an upgrade of Adobe Flash is necessary first. Users who click on the “install” button infect their computer with the virus. The result? Enabling identity theft and click fraud.

Wonderful post from Professor Mark Davison on the Australian Trade Marks Blog. ‘Nuff said.

Does this site strike anyone else as, well, just a bit dodgy? “International validity for a lifetime”???

I’m very sad to hear of the death of Sir Hugh Laddie. Tributes are pouring in, of course. I’ll remember him for the 1995 Stephen Stewart lecture, “Copyright, Over-Strength, Over-Regulated, Over-Rated,” 18 E.I.PR. 253 (1996) - I read it the same year I first studied copyright, and it’s influenced my thinking ever since. His Modern Law of Copyright and Designs, too, is a constant standby when I teach: wonderful for its teasing out of the implications of rules through hypotheticals, cases, and more cases. He was a bold thinker, never cowed by IP orthodoxy (or the ECJ for that matter), and never shying away from the need for a strong, sensible IP system. He has been respected by all sides in the IP world - no mean feat in itself. He will be very much missed.

The IPKat has its own tribute; as does the IAM Blog and Howard Knopf, but for a sense of the man, you might want to look at Patry’s older post on his conversation with Sir Hugh after his decision to retire from the bench.

Update: Bill Patry’s heartfelt tribute.

AFACT have a new (I think?) set of resources for teaching copyright to school kids.You can write your own copyright law (results of that might be interesting). You can even make your own anti-piracy ad! yay! (of course, people have been doing that for a while now… and here…. and here….) :)

I’ve yet to have a proper look, but as Tama Leaver comments:

I’ve never read an educational resource before which feels the need to include this disclaimer (p. 4.):

The resource is not a propaganda exercise. It does make clear to students that there are harmful consequences from film piracy, but it does so through educationally valid processes. It is an educational approach that allows students to face a significant civics and citizenship issue: their role in a society where many of them and their peers are breaking the law.

Actually, what this kind of warning tells me is that this area is really fraught, and that it’s really hard to be seen as treading the line between teaching and propaganda. I wonder who AFACT consulted with, and what testing they did, on this material before publication?

ZDNet has some interesting discussion of different ISPs’ policies.