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INTRODUCTION TO IP Flashcards

1
Q

STATUTORY IP

A
  • Copyright
  • Patents
  • Trade Marks
  • Design
  • Plant Breeders rights
  • Geographical indications
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2
Q

COMMON LAW IP

A
  • Passing Off
     Note statutory consumer protection laws
  • Confidential Information
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3
Q

WHAT IS IP

A
  • distinction between
  • the physical object embodying the IP and
  • the intangible IP itself: Pacific Film Labs v FCT (1970) – copyright in photo negatives as opposed to property in prints made from the negatives
  • Can be dealt with in the same way as other forms of personal property
  • sale, transfer, licensing
  • passes in a will or on bankruptcy
  • IP rights are negative in character - to stop others from unauthorised acts
  • See JT International SA v Cth of Aust [2012] HCA 43
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4
Q

GENERAL ABOUT COPYRIGHT

A
  • Governed by Copyright Act 1968 (Cth)
  • Generally - Protects categories of cultural, entertainment and informational productions
  • original authorship that is expressed in material form
  • Incl. other subject matter such as films, sound recordings
  • Term (works) – 70 years after death of author
  • Registration not required
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5
Q

GENERAL PATENT

A
  • Governed by Patents Act 1990 (Cth)
  • Registration for novel and non-obvious inventions
  • Term – 20 years
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6
Q

GENERAL TRADEMARKS

A
  • Governed by Trade Marks Act 1995 (Cth)
  • Registration for words, symbols, colours, shapes and other “signs”
  • Applied to goods or services to distinguish them from those of other traders
  • Term – 10 years, renewable
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7
Q

GENERAL DESIGN REGISTRATION

A
  • Governed by Designs Act 2003 (Cth)
  • Registration for new and distinctive overall appearance of a product, resulting from its visual features (whether functional or not)
  • E.g. shape, configuration, pattern and ornamentation
  • Term – 10 years
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8
Q

IP LAW IN AUSTRALIA

A
  • May be automatic, or require registration
  • e.g. filing of application and compliance with formalities
  • rights are not mutually exclusive
  • can exist concurrently –
  • different rights apply sequentially throughout a product life cycle – idea (confidential info) – copyright - patent - design - trade mark
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9
Q

PURPOSE OF IP

A
  • based on a balance between the interests of creators and those of users/the general public
  • IP seeks to:
  • provide incentive and reward to authors and inventors
  • encourage dissemination of new ideas, and development of new technology
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10
Q

RATIONALES FOR IP

A
  • Consumer protection
  • technology transfer
  • balance of trade considerations
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11
Q

ENFORCEMENT OPTIONS

A
  • Administrative Tribunals:
  • IP Australia administrative hearings in patent, trademark and design registration matters
  • Copyright Tribunal on statutory licensing royalties
  • Courts:
  • Federal Court
  • State and Territory Supreme Courts
     Common law, contracts.
  • Federal Magistrates Court
     since 2003 has jurisdiction to hear civil actions for copyright infringement under Pts V, VAA and IX of Copyright Act;
     jurisdiction extended in 2012 to TM and design matters (following ACIP recommendation)
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12
Q

CIVIL REMEDIES

A
  • Injunctions (interlocutory and final)
  • Damages (additional damages for flagrant and other infringements)
     Could be difficult to determine amount.
  • account of profits
     portion of the profits in relation to the improper gains made from using your invention.
  • Anton Piller orders
     Ex-parte applications.
     Need an order for goods to seized, etc.
  • Ancillary orders for delivery up or destruction
  • Unjustifiable or groundless threats
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13
Q

UNJUSTIFIABLE AND GROUNDLESS THREATS

A
  • Unjustifiable and groundless threats – unlawful to threaten to initiate proceedings for infringement even though there is an honest belief that infringement is occurring
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14
Q

SECTIONS FOR EACH ACT UNJUSTIFIABLE AND GROUNDLESS THREATS

A
  • Copyright Act, s 202
  • Patents Act, ss 128 – 132
  • Trade Marks Act, s 129
  • Designs Act 2003, ss 77 – 81
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15
Q

CRIMINAL LIABILITY AND PENALTIES

A
  • professional offences
  • trademark offences
  • copyright offences
     Copyright Amendment Act introduced numerous indictable, summary and strict liability offences
  • performer’s rights offences
  • designs offences
  • plant breeder’s rights offences
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16
Q

WHAT IS CONFIDENTIAL INFO

A
  • Equitable action for breach of confidence
  • provides remedy for unconscionable action in the circumstances of a relationship of good faith between the parties: Titan v Steriline Manufacturing (1991)
  • Just because you have a contract doesn’t mean you don’t have an equitable action
17
Q

TYPES OF CONFIDENTIAL INFO

A
  • trade secrets (technical and business secrets).
  • personal secrets
  • artistic and literary confidences
  • government secrets
18
Q

ELEMENTS OF CONFI INFO

A
  • Classic statement of essential elements in Coco v AN Clark (1969), Megarry J:
    1. the information must be of a confidential nature
    2. the information must have been imparted in circumstances importing an obligation of confidence
    3. an unauthorised use of the info to the detriment of the person claiming the right to maintain confidentiality
19
Q

OBLIGATION OF CONFIDENCE

A
  • ‘Limited purpose test’ – show by the relationship:
  • the obligation exists when information imparted for a limited purpose
  • Is this a subjective or objective test?
  • Arises when confidant either knew or ought to have known info imparted for a limited purpose
  • Some common examples of relationships where the obligation of confidence arises:
  • Business relationships
  • Pre-contractual negotiations
  • Employment
  • Professional Relationships (bankers, doctors, lawyers)
  • Information imparted to the State and its agencies
     Certain applications.
  • Generally – to show an obligation of confidence consider test in Coco v AN Clark
  • if the circumstances are such that any reasonable [person], standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him[or her] in confidence, then this would suffice to impose upon him the equitable obligation of confidence
  • Objective assessment
     Unnecessary that recipient appreciates that the information is confidential
  • Obligation of confidence may arise subsequent (after) to the communication being made
  • Third parties liability:
  • Actual notice
  • Constructive notice.
20
Q

UNAUTHORISED USE

A
  • Unauthorised – i.e. beyond the purpose for which information supplied (objective test)
  • Smith Kline and French Laboratories (Aust) v Secretary, Department of Community Services and Health (1991) 20 IPR 643; cf Marcel v Commissioner of Police of the Metropolis
21
Q

DAMAGE

A
  • Readily shown in commercial context
  • May be established by Pl’s desire to avoid criticism/embarrassment: Cth v John Fairfax & Sons (1980) 147 CLR 39 at 51-2
22
Q

DURATION OF PROTECTION - CI

A
  • Confidant will be bound until released by one of the following:
  • by agreement
  • express or implied consent of the confider
  • information is no longer confidential
  • “Springboard doctrine”
  • Terrapin v Builders Supply (Hayes) Ltd (1959) RPC 375
23
Q

JUSTIFIED DISCLOSURE

A

Defence to CI:
- Iniquity rule
* “any misconduct of such a nature that it ought in the public interest be disclosed”: Initial Services v Putterill [1968] 1 QB 396 at 405
 e.g. fraud, criminal conduct
- Broader public interest ground for justified disclosure
* Where the “public interest” in publication outweighs the public interest in confidentiality: Initial Services v Putterill [1968] 1 QB 396
- Balancing public interests
* Distinguish between what is ‘in the public interest’ and what is ‘of interest to the public’: e.g. AFL v The Age (2006) 15 VR 419.
* E.g. Lion Laboratories v Evans [1984] 2 AER 417 – faulty intoximeter

24
Q

LEGAL COMPULSION

A

Defence to breach of CI if:
- Obligation under
* statute or
e.g. Public Health Act 2010 (NSW)
* court order

25
Q

IS INFORMATION PROPERTY?

A
  • In Australia, trade secrets or confidential information are not property
  • HCA consistently rejects arguments that information is proprietary:
26
Q

CI AND IP

A
  • Copyright and Patent do not protect ideas
  • But confidential nature of certain information early in the lifecycle of Copyright/Patents may be relevant
  • Copyright:
  • Right of first publication at common law (UK Donaldson v Becket of 1774; US Wheaton v Peters of 1834)
  • Unpublished works under exceptions and limitations
  • Patent:
  • Cannot be public knowledge, otherwise lose necessary novelty

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