Scintilla – a flash, a spark, an iota. Shorthand for creativity and an indicator of inventiveness under Australian law.






Wednesday, March 22, 2017

Beat It

By Nick Li, Lawyer

The Australian Trade Marks Office has amped up Dr Dre's BEATS brand in its trade mark battle against an upstart rival's ATOMIC BEATS speakers.

In so doing, ATMO has confirmed that it can consider evidence in opposition proceedings which was not filed in time, under regulation 21.19 of the Trade Marks Regulations 1995 (Cth).

The decision of the Delegate in Beats Electronics LLC v Strategies Unleashed Pty Limited [2017] ATMO 6 follows another recent decision of the Australian Trade Marks Office in Apple Inc v Healthkit Pty Ltd [2016] ATMO 112 which also considered the operation of regulation 21.19. Together, the two decisions assist practitioners sound out the scope and limits of using regulation 21.19 as a means of getting in evidence which would otherwise not have been taken into account.

Thursday, February 9, 2017

US draft guidelines on interchangeability of biosimilars require repeat switches – why doesn't Australia switch over too?

By Sarah Matheson and Ric Morgan

As we have previously reported, it has long looked like Australia is determined to take a unique stance on interchangeability of biosimilars. This was confirmed with the PBAC recommending the a-flagging of Brenzys in September 2016.  The recent release for comment by the US FDA of its much awaited draft industry guidance on demonstrating interchangeability of biosimilars reinforces that Australia is indeed an island when it comes to biosimilars.

If adopted, as seems likely, the separate assessment of interchangeability under US legislation will require specific clinical trials. For biosimilars intended to be administered more than once, dedicated switching studies will need to:

Friday, January 27, 2017

Patent data reveals autonomous vehicle surprises

By Richard Hamer

Any reader of social media knows that the leaders in autonomous vehicle research are Google and Tesla. Right?

In fact, the most active patent filer in the field is General Motors. Other traditional car companies also have a bigger presence than the well promoted and popularly perceived leaders. Chinese companies are very active in the field also.

Although not all patents are commercialised, the level of patent filings is a good indicator of a general level of research activity. Patent filing data throws up some other initially surprising information.

For example, around half the autonomous vehicle/robotics patents are not for on-road vehicles at all, but for domestic, industrial and off-road use, such as autonomous farming or mining. The autonomous lawnmower is big. With some thought this makes sense. It would be great to automate jobs like ploughing, harvesting, hauling minerals or for that matter mowing the lawn. The environment is less complex than the on-road environment and automated equipment can feed back real time information, for example about soil properties or yield, and facilitate planning and management.

Thursday, December 22, 2016

The TPP is dead! Or is it…?

By Isobel Carmody, Vacation Clerk, and Adrian Chang, Associate

Based on his presidential campaign strategy, we are not surprised that before taking office, US president-elect Donald Trump continues to shake the world with his pronouncements. One of his first? The Trans-Pacific Partnership (TPP) is fired! So is this the end of this grand, highly controversial trade deal? Or can it survive despite the Donald's dramatic declaration?

Wednesday, December 21, 2016

Productivity Commission's Final Report on Intellectual Property Arrangements Now Available

By Lev Gutkin, Lawyer

The Productivity Commission IP marathon was completed yesterday with the publication of the Final Report on IP Arrangements.

Unsurprisingly, given the wide scope and limited time, the Final Report is a mixture of good and bad. Some of the more concerning themes evident in the Draft Report published in April (discussed in our prior post) have not been changed by intense lobbying or, indeed, by evidence. Despite covering a huge volume of material (the report is over 700 pages), many of the individual sections are superficial, showing that in-depth understanding of the nuances of the more complex areas of law considered may not have been fully achieved.

Instead of providing high level recommendations, the Final Report often descends to individual and quite specific detail, including legal drafting recommendations. For example, the effect of recommendation 7.2 is to specify the detail of legislative wording, down as far as the detail of the matters to be mentioned in the Explanatory Memorandum.

Tuesday, December 20, 2016

Legislation to implement the Sansom review recommendations clarifies the Government response. We now have an interesting framework for implementation but the details are still to come.

By Ric Morgan, Special Counsel

A little over two months ago we wrote that the Government response to the Sansom review provided no clear indication 'the Government will be taking the medicine Sansom has prescribed'. The ongoing release of information and active consultation by the TGA is much more encouraging than our original prognosis.

Thursday, December 8, 2016

Pregabalin Patent Powers Through

By Lev Gutkin, Lawyer

Pfizer's drug Lyrica (pregabalin) is usually used to treat neuropathic pain, but is no doubt the cause of plenty of headaches for Apotex and Generic Partners, after Nicholas J dismissed their invalidity attack against patent no. 714980 and held that their conduct amounted to threatened infringement.

The patent is in respect of the use of pregabalin, the (S)-enantiomer of 3-aminomethyl-5-methylhexanoic acid (the 3-amino compound), a known anti-seizure drug, for the treatment of pain. Apotex claimed the patent was invalid on the grounds of insufficiency, inutility, false suggestion and because the patentee, Warner-Lambert, was not entitled to the patent.* Other than in relation to the entitlement issue, the pre-Raising-The-Bar provisions of the Patents Act 1990 (Cth) applied.