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

Tuesday, February 24, 2015

RiRi takes a bow: Topshop loses appeal in passing off case

By Jonathon Adamopoulos, Senior Associate, and Marryum Kahloon, Vacation Clerk

Note: Readers may want to find an umbrella, as the following article may pour up a few too many lyrics for some.

Poor Topshop is not finding a lot of love in a hopeless place after losing an appeal against Justice Birss' decision that it had committed an act of passing off. The company found themselves unable to talk that talk for Lord Justices Richards, Kitchin and Underhill in the Court of Appeal in Fenty & Ors v Arcadia Group Brands Limited & Anor [2015] EWCA Civ 3.

The facts

In 2012, Topshop began selling a sleeveless t-shirt called the RIHANNA TANK. The t-shirt was screen printed with an image of Rihanna that was taken during the music video shoot for her single We Found Love.

Thursday, February 19, 2015

New IP laws coming soon

By Clare Young, Managing Associate

The Intellectual Property Law Amendment Bill 2014 has finally passed both houses and is awaiting royal assent (expected shortly). We say 'finally' as the content of the Bill was introduced back in 2013 and appeared to be passing through Federal Parliament without much objection when the general election was called, causing the Bill to lapse. The Bill was re-introduced in 2014 under the current government.

The Parliamentary Secretary for Industry has said that the Bill will 'reduce red tape for those wishing to obtain or enforce their intellectual property rights and will provide more support for other countries facing health emergencies'. So what will change and who will be affected?

Tuesday, February 17, 2015

High Court to hear appeal from D'Arcy v Myriad Genetics Inc

By Tony Shaw, Associate

We reported here and in our recent Focus article that the Full Federal Court in D'Arcy v Myriad Genetics Inc (D'Arcy) handed down a unanimous judgment confirming the first instance decision of Justice Nicholas in Cancer Voices Australia v Myriad Genetics Inc (Cancer Voices) that 'isolated nucleic acids' (genetic materials in their isolated form) are patentable in Australia.

The judgments in Cancer Voices and D'Arcy have been consistent in the application of Australian patent law in deciding that 'isolated nucleic acids' are patentable subject matter. In the US, the Supreme Court has come to a different conclusion finding that isolation per se is not enough for patent eligibility. In Europe, Directive 98/44/EC on the legal protection of biotechnological inventions provides that isolated biological material is patentable even if it has occurred previously in nature.

On 13 February 2015, the High Court of Australia granted Ms D'Arcy special leave to appeal the Full Court's decision. According to a press release by Ms D'Arcy's lawyers the High Court hearing will take place in April 2015.

Keep an eye on Scintilla and the Allens website for updates on the appeal and our reporting of the High Court's decision.

Monday, February 16, 2015

Regency Media: won the battle, but lost the war

By Adrian Chang, Lawyer

Regular readers will recall that in April last year we wrote about an interesting case, the appeal to which (Regency Media Pty Ltd v MPEG LA, LLC [2014] FCAFC 183) was handed down just before the Christmas break.

As explained in the judgment, MPEG licensed a suite of patents relating to video encoding technology to Regency. All of the patents under the agreement formed part of a pool of standard essential patents that underpinned MPEG audio-visual encoding technology.

Regency, relying on section 145(1) of the Patents Act 1990 (Cth), purported to terminate the agreement after one of the subsisting patents expired.

Monday, February 9, 2015

It's the (downloading) apocalypse, or is it?

By David Stewart, Associate

On 6 February, Scintilla blogged about all things patent-related in the proposed Trans Pacific Partnership Agreement (TPP). If you missed it (how could you!), check it out at the blog.

Cruelly, we left you on a cliffhanger, waiting to find out if proposed changes to Australian copyright law will sound the death-knell for downloaders of movies, music and TV shows (or at least make it much, much more costly), as seems to have been the media focus to date. Well, below is a summary of a few of the more controversial TPP proposals relating to copyright, and how they may affect Australian law.

Friday, February 6, 2015

Does TPP spell the end of the world as we know it?

By David Stewart, Associate

Over the course of the last 12 months or so, the long-mooted Trans Pacific Partnership Agreement (TPP) has periodically occupied the pages of the major Australian media outlets, with articles covering all sorts of issues, from concerns about the impact on public healthcare, to the serious lack of public transparency regarding negotiations between the parties and, finally, the apparently more serious (if that can be measured by the number of articles written) impact on Australians' "fundamental human right" to (illegally) download the latest episodes of Game of Thrones, House of Cards and/or [insert your favourite TV show here].