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On Monday, the US Supreme Court granted certiorari (equivalent to the Australian High Court granting special leave) in a patent case, LabCorp v. Metabolite. The case is about patentability of medical processes, and has the potential, according to the Patently-O Blog, of addressing some of the ‘patentability of processes’ issues raised in the Ex p Lundgren case that I’ve commented on before (here and here).

See Patently-O for more detail.

I think it is worth noting that Australians didn’t only do well in the Nobel Prizes this year. All praise, of course, to Barry J. Marshall and J. Robin Warren, who received the Nobel Prize in Physiology or Medicine, “for their discovery of the bacterium Helicobacter pylori and its role in gastritis and peptic ulcer disease”.

Australians also did well in the Ig Nobels this year (more…)

I’ve added two links to the blogroll as part of a general clean up of the Weatherall’s Law blogroll. (more…)

A little while ago I blogged about Ex parte Carl A. Lundgren, a decision of the Board of Patent Appeals and Interferences of the US Patent and Trade Mark Office (USPTO). In that decision, the Board overturned the Examiner’s objection to the patent, holding there is no separate “technological arts” test in determining whether a process is statutory subject matter. The decision potentially broadened the patentability of what you might call ‘pure business methods’ – those not instantiated in ‘technology’ (like software or hardware). (more…)

While I’m on the subject of copyright and the constitution, Simon Evans, a colleague here at Melbourne, the other day pointed me to his submission in the fair use/fair dealing inquiry. It’s an interesting read on some of the constitutional, rule of law and free speech issues raised by copyright exceptions – highly recommended. I’ve also added it to the list of submissions.

One of the passages in the recent High Court case on anti-circumvention laws (or the Oz-DMCA), Stevens v Sony which attracted a little bit of attention, even excitement from people I know the following part, from Justice Kirby’s judgment:

[216] The provisions of the Australian Constitution affording the power to make laws with respect to copyright operate in a constitutional and legal setting that normally upholds the rights of the individual to deal with his or her property as that individual thinks fit. In that setting, absent the provision of just terms, the individual is specifically entitled not to have such rights infringed by federal legislation in a way that amounts to an impermissible inhibition upon those rights constituting an acquisition. This is not the case in which to explore the limits that exist in the powers of the Australian Parliament, by legislation purporting to deal with the subject matter of copyright, to encumber the enjoyment of lawfully acquired chattel property in the supposed furtherance of the rights of copyright owners. However, limits there are.
…

[218] To the extent that attempts are made to push the provisions of Australian copyright legislation beyond the legitimate purposes traditional to copyright protection at law, the Parliament risks losing its nexus to the constitutional source of power. That source postulates a balance of interests such as have traditionally been observed by copyright statutes, including the Copyright Act.’

But what do these passages really mean? (more…)

I don’t have time to say much at this stage on the TPM submissions, made to the Legal and Constitutional Affairs Committee in the context of its current review. I’m reading through them, in the hope of producing a kind of concentrated summary as I did for the fair dealing review. I suspect there are many more yet to come onto the website. I’ve already commented on the CAL submission, of course.

However, I commend to interested people the ABC submission. In its discussion, the ABC makes it clear just why some exceptions are necessary, if we are to have an effective free media. The submission highlights the practicalities that sometimes intrude and that academics like me sometimes forget. In particular, the submission makes the explicit argument that:

Australian law must comply with the implied right to governmental and political discussion. Any law which protects TPMs but which does not permit an exception to allow free government and political discussion will not be appropriate and adapted to its purpose and will be unconstitutional.

This implied constitutional right plays a critical role in the media and is fundamental to the ABC meeting its charter.’

Interesting reading.

Well, it’s true. iTunes have apparently launched in Australia.

The Economist has an issue on IP. Unfortunately, we’re all going to have to go out and buy it, because most of the articles are for subscribers only on the website. But I’ll certainly be buying one. (more…)

Ah, the government submission process. Having finally completed my submission on the inquiry into TPM exceptions being run by the Legal and Constitutional Affairs Committee, now I can’t publish it until they decide to publish it. Shame really. I’ll put up a link as soon as it happens…

Oh well, in the meantime, if you’re starved for my views (as if!) there is the submission I made on the Attorney-General’s review of the availability of Safe Harbours under Part V Div 2AA of the Copyright Act. (more…)

As the Legal and Constitutional Affairs Committee hunkers down to think about DRM, they might like to take note of a column just published in the Wall Street Journal, on DRM: (more…)

A little while ago I noted that the University of Chicago Law Faculty had a Faculty Blog. Interesting, I thought.

I think this new Yale Law Journal experiment (also via Jack Balkin) is even more interesting: (more…)

iTunes? In Australia? I just can’t get my hopes up again…I couldn’t stand the disappointment…

Interested in why/how the High Court refused special leave in The Panel case? Read Starkoff’s post.

UPDATE: Warwick Rothnie has also commented at some length on the issue. (true confessions: not sure I agree with Rothnie’s basic point here, which is that, in the end, substantial part is just a matter of fact/judgment. But while I think our law on ‘substantial part’ is now problematic for Part IV works, that’s not the Full Federal Court’s fault. That’s the High Court’s fault, for saying that ‘quality’ is relevant for Part IV subject matters. How do you judge ‘quality’ of non-original works, if not by the ‘highlights’ method used by the Full Court?).

Alan Fels and Fred Brenchley have an opinion piece on anti-circumvention laws, mod chips, the Stevens v Sony case, and the current moves to reform Australian TPM law in the Australian Financial Review today (sorry, subscribers only). A taste: (more…)