Very brief. Just sufficient to point you towards this detailed analysis of IBM’s new ‘patent policy’, all part of a very general debate about technology and patents that has been going on in the US for some time (hat tip: Fire of Genius).

More quick news: the Intellectual Property Laws Amendment Bill passed Parliament yesterday. This won’t really surprise observers: it was pretty clear that while there are plenty of people in the profession jumping up and down about various provisions in the Act, this was always going to pass. A full summary of the effect of the provisions from IP Australia is available here. A quick list is over the fold. (more…)

Readers may recall that one of the big issues in Australia’s FTA negotiations with the US was the issue of drug pricing, the pharmaceutical benefit scheme, and drug listing. This was one issue where the Australian government stood its ground – to some extent (of course, there’s plenty of debates about whether the ground they gave was too great – see Peter Drahos’ work on this generally, particularly this working paper for the Evatt Foundation).

Well, now it’s apparently Korea’s turn. (more…)

The Full Federal Court has handed down its decision in the case of Grant v Commissioner of Patents. I’ve blogged about the case before (here, and here): in essence, it’s about patentability of a ‘business system or method‘ – where the particular business system or method is a legal scheme, to protect assets in the case of bankruptcy. Something that got a little controversial recently, of course, when the Supreme Court decided to punt in a case that might have dealt with the issues – see here. Warwick Rothnie’s already blogged in some detail about the decision – but I have a couple of quick comments. (more…)

CNet reports that the US Senate Judiciary Committee will be looking at patent system reform. The home page for the hearing on 23 May contains links to some interesting testimony. I have set out some extracts from the two most striking witnesses. (more…)

Time for some Friday morning links, if you are in a reading mood today:

  1. Michael Geist has a column this week on The Legal Limits of Government Tinkering with Technology. It discusses the French legislative proposals to mandate the interoperability of digital products: law which would require Apple to reveal technological specifications to its competitors so that they can design compatible devices, so that iTunes songs would play on anything. Australia makes a particular appearance in the column, with Geist commenting about the TPM Inquiry’s recommendation that the government establish the legal right to break region coding as part of Australia’s new anti-circumvention laws.
  2. James Boyle has a column this week too, on documentary films and the clearance culture. A taste:

    This should be the Golden Age of documentary film, and in some senses it is. A profusion of television channels allows programs that cater to smaller and smaller markets. As viewers, we show an insatiable appetite for biographies of the famous – celebrity infomercials disguised as documentaries – but we also show a taste for quirkier material: … There are documentaries about mental illness and spelling bees and Star Trek fandom – though not all in the same film. And the drop in the price of cameras and editing software, together with the availability of internet distribution, potentially puts a million documentarians on the streets.

    But as Larry Lessig and others have pointed out, documentary film is rapidly becoming the latest victim of the explosion of intellectual property rights I have discussed in these pages. Ironically, the problem here is not a broadening of the rights themselves, but a “clearance culture” that demands licenses for the tiniest fragment of copyrighted material caught in the viewfinder or on the soundtrack of the documentary film.

    Boyle is writing from a US/international perspective. But similar issues were noted in Australia in a recent report for SADC, the Council for Documentary Makers (click here for the BIG pdf). The report, released in November 2005, noted that investors such as the FFC and AFC require a legal opinion that all material used in the documentary has been examined for violation of third party copyright and all necessary clearances obtained. Insurance premiums have also increased. It’s a shame that that same report didn’t look at doing what has been done in the US though – producing a ‘Best Practices’ Model for the Industry that reflects a consensus on what uses are and aren’t acceptable without a clearance. For the most part, the Best Practice Model produced by the Centre for Social Media is a very reasonable set of guidelines on when clearance should be obtained. Something similar could be created for Australia.

  3. The other story doing the rounds of the blogosphere and media at the moment is the Philips Electronics patent application on technology that could let broadcasters freeze a channel during a commercial, so viewers wouldn’t be able to avoid it. See eg Techdirt. 4 brief comments on this:
    (a) oops bad publicity,
    (b) this is proof of one fundamental truth about intellectual property: that having a right doesn’t mean you have a marketable product. What, people are going to buy this? What, if people don’t want to buy it, governments are going to back the right of content owners to impose this technology on people? Even as they try (as our government is at the moment) to ensure that legitimate uses of legitimately accessed materials are preserved?
    (c) There is a move to parse out all the ‘consumer value’ in content and make it something that can be charged for. You can imagine paying ‘extra’ for the ‘right’ to channel surf. There are rights owners who think that is a legitimate method of doing business. Although see point (b) above.
    (d) Philips have apparently commented that they had no intention of using the technology in their products, but ‘Philips wanted to provide the technology and seek the patent only as part of the broader developments within the industry’. How many ways are there to say ‘patent arsenal’?
  4. Remember that story about the chef from Interlude from a couple of weeks ago (you know – chef copies other chefs’ dishes). One of the issues I mentioned there was whether a dish at a top class restaurant could be a ‘work of artistic craftsmanship’. Well, have a look at this opinion piece in the Sydney Morning Herald today on the cake decorators of the Royal Easter Show. Does it change your mind on whether food creations can be works of artistic craftsmanship?

….drug company pressure on developing country officials and governments. Grrrr.

Just came across this story (on SecondView) via Jamie Love on the Huffington Post: Big Pharma company Pfizer (and there aren’t many bigger) are suing a Philippine government-owned company (PITC, Philippine International Trading Corporation), the Philippines equivalent of the TGA (BFAD, Bureau of Food and Drugs) and two Philippine government regulators personally (the BFAD director and one other staff person). What Pfizer object to is the importation, from India of samples of a drug that Pfizer sells in both the Philippines and India, and for submitting the samples to the government drug regulatory agency. It’s a fine example of inappropriate pressure being applied to government (particularly through the personal law suits), which indicates two things:

  1. Developing countries should be supported, and encouraged to use the flexibility available in international treaties – the Phillippines needs springboarding provisions and may need support to enact them; and
  2. Drug companies can be utterly unscrupulous in their use of the law. Not sure what we can do about that, but examples like this should be highlighted and publicised.

More detail over the fold. (more…)

The New York Times has a short and sharp editorial criticising the US patent system. It’s at a very high level of generality, but it does cover some of the familiar themes for criticism: (more…)

The Sydney Morning Herald is carrying a story entitled “The fine art of patent trolling”, which focusses on Forgent Networks Inc. Forgent is perhaps best known for its 2004 litigation against 31 companies, including Apple, Microsoft and Adobe, alleging infringement of a patent covering the jpeg image compression algorithm. That suit is still pending, but has so far netted a significant sum in settlement payments from some of the respondents. (more…)

In a significant shift from its jurisprudence of the past forty years, the United States Supreme Court has rejected the presumption that a patent confers market power on the holder of that patent. In Illinois Tool Works Inc. v Independent Ink, Inc. (No. 04-1329, decided 1 March 2006), the Supreme Court concluded that since a patent does not necessarily confer market power, defendants in cases involving a tying arrangement must prove the existence of market power to bring an antitrust claim.

A possible implication of this case is that companies might be able to require customers to use the spare parts and supplies (car parts, toner cartridges etc.), designed and sold for use with their proprietary equipment, and prohibit the manufacture and sale of spare parts and supplies by third parties. (more…)

ZDNet had a recent article about RIM winning a patent case in the UK. The action was unrelated to the NTP/RIM litigation, and appears to have been an action by RIM to have an InPro patent revoked, provoking InPro to countersue for infringement. (more…)

Rothnie very usefully notes that the Cth has released its draft legislative agenda for the Autumn sittings. On the IP front, it includes a few pieces that I had predicted back when I was crystal ball-gazing in January, plus some other stuff of general interest.

It’s worth noting that none of the IP legislation is marked for introduction and passage in the Autumn sittings (ie, none are ‘starred bills’ on this list). Though, these things can always change… Comments on the particular Bills foreshadowed over the fold. (more…)

The question in Conor Medsystems Inc v The University of British Columbia (No.2) [2006] FCA 32 (Finkelstein J) was this:

  1. if you have two joint patentees
  2. one of those joint patentees is a University which claims title through two people claiming to be inventors,
  3. but it turns out that those people were not in fact inventors,
  4. is the patent liable to revocation, on the grounds that it was not granted to the actual inventors or those claiming under them even though the other patentee is not affected by the problem?


I commented the other day about the Blackberry patent dispute between RIM, makers of the Blackberry device, and NTP. My comments were basically on the court processes, but there are ongoing issues happening in the Patent Office. The new development? I’ll just quote TechDirt:

The US Patent Office today issued yet another non-final rejection of an NTP patent, meaning all five at the center of its legal battle with Research In Motion have been given non-final rejections. … It’s been said before, but bears repeating: to rule in the case before the Patent Office acts seems awfully premature.

Today, Patently-O has a summary of the briefs received in the US Supreme Court thus far in the case of eBay v MercExchange . Parties briefing include Yahoo!, the EFF, AIPLA, 52 Law Professors (written by Mark Lemley, who has written prolifically and informatively on matters of patent litigation generally), a bunch of technology companies (including a joint brief from Intel, Microsoft, Oracle and Micron), Nokia and others. The summaries make an interesting read, because they reveal two things: that this dispute has a very broad background in some of the most contentious reform issues in patent law in the US today, and second, that this could well end up being, as Patently-O has described it , ‘the most important patent case in the past five years’. (more…)

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