15 October 2010

Business Methods Patentable (Again) in Canada

Amazon.com v The Attorney General of Canada and the Commissioner of Patents 2010 FC 1011 (14 October 2010)

Ordering cheese online with just
one click!
The keenly-awaited decision in the appeal by Amazon.com against the rejection of its so-called '1-click' patent application has just been released.

The outcome – the Commissioner's decision has been overturned.  The court considered Amazon's claims to comprise patentable subject matter, and concluded that "a 'business method' can be patented in appropriate circumstances" (at [3]).

In the original decision of the Patent Appeal Board, all of Amazon's claims were found to be novel and nonobvious, notwithstanding their rejection on subject matter grounds.  Therefore, barring an appeal by the Commissioner of Patents, the Amazon '1-click' patent is now on-track to be granted in Canada.

13 October 2010

Does Australia Need its Own Bayh-Dole Style Legislation?

It has been thirty years since US federal policy in relation to the commercialisation of publicly-funded research underwent a major change through the Bayh-Dole Act of 1980.  Bayh-Dole fostered greater uniformity in the way research agencies treat inventions arising from the work they sponsor.  Before the Act, if government agencies funded university research, the funding agency retained ownership of the knowledge and technologies that resulted.  However, very little federally funded research was actually commercialised.

As a result of the Act, which provides for the universities to take title to the IP in most circumstances, patenting and licensing activity from such research has accelerated.

Although the system created by Bayh-Dole has remained stable, concerns have sometimes arisen that it might impede other forms of knowledge transfer, or that universities might prioritize commercialization at the expense of their traditional mission to pursue fundamental knowledge.

The US National Research Council therefore convened a committee of experts from universities, industry, foundations, and similar organizations, as well as scholars of the subject, to review experience and evidence of the technology transfer system's effects and to recommend improvements.  The result of this review is a report, published by National Academies Press (NAP), entitled Managing University Intellectual Property in the Public Interest

12 October 2010

IP Australia Extends Business Hours for Summer

Australian geography has compelled IP Australia to extend its business hours over summer.  An Official Notice published online on 11 October 2010 announced that the hours of operation for the customer service centre are 9am to 8pm Australia Eastern Daylight Time (AEDT) from the commencement of daylight savings on Tuesday, 5 October 2010 until Friday, 2 April 2011.

What has geography got to do with it?  We are glad you asked!

Due to its size, Australia presents some unusual time zone issues for a single country.  It's northernmost city, Darwin, is situated at about 12 degrees south latitude, well into the tropics and around the same distance from the equator as Barbados.  Southernmost city Hobart is at around 42 degrees south latitude, equivalent to Beijing, Rome and New York in the North, with a shortest day of almost exactly nine hours, and a longest day of just over 15 hours and 20 minutes.  Add to this the fact that the country spans nearly 40 degrees of longitude, and keeping track of the time interstate can become something of a headache.

11 October 2010

Rules for Calculation of Time Periods Measured in Months

Make sure you mark the
right date!
In an Official Notice issued on 30 September 2010, which appears to have taken everybody by surprise, the UK Intellectual Property Office (UKIPO) has announced a change in practice in relation to the period allowed for filing a Notice of Opposition to the registration of a national trade mark.  Specifically, the expiry of the two-month opposition period has been reduced by one day.

For example, if an application is published for acceptance on 6 October 2010, it would previously have been the case that a Notice of Opposition could be filed up until 6 December 2010.  Under the new practice, the final date for filing a Notice of Opposition is 5 December 2010.

While we do not usually trouble ourselves with trade mark matters on the aptly-named Patentology blog, this sudden change in practice by the UKIPO gave us pause to wonder whether some similar surprise may be lurking unnoticed in any of the regulations we operate under in our day-to-day practice.  We are pleased to report that this seems unlikely and, indeed, this particular UK rule appears to be an anomaly.

08 October 2010

News from IP Australia

Discontinuing of Provision of National Examination Services to Singapore – IP Training Program Wins Award – Upcoming Creative Commons Licensing Seminar – So You Want to be a Patent Examiner...

We have received a few items from IP Australia this week, so we thought we would provide a brief digest of current news and events.

Motorola Bites Apple for Infringement of Smartphone Patents

Not to be outdone by the high-profile spat between Oracle and Google (see our prior articles here and here), Motorola Mobility, Inc has filed not one, nor even two or three, but four separate complaints against Apple, Inc, alleging infringement of a total of 18 Motorola patents by various Apple iPhone, iPad, iPod, MacBook, iMac and Mac products.

Two of the complaints have been filed in the US District Court in the Northern District of Illinois, one in the US District Court in the Southern District of Florida, and one with the US International Trade Commission (ITC).

07 October 2010

Google Pushes Back on Oracle's Java IP Law Suit

The most read article we have yet published on the Patentology blog was Why has Oracle Sued Google? which discussed the background to Oracle's complaint of patent and copyright infringement against Google Inc., in relation to the Android software for mobile devices.

Google has now filed its reply to Oracle's complaint (read the reply here), in which it has denied that the Android software violates Java patents and copyrights.  In its own version of the background to the suit, Google has also accused Oracle of hypocrisy, saying that back in 2007 "Sun came under significant criticism from members of the open source community, including Oracle Corp., for its refusal to fully open source Java."

05 October 2010

Australia Must Invest in Innovation, Infrastructure, Says OECD Economist

New Australian Workplace Uniform,
Available in a Range of Fashion Colours!
Last week Jonathan Coppel, who is the Economic Counsellor to the OECD Secretary General (and an Australian) posted on his blog a copy of a speech he recently gave at National Economic Review: Australia's Annual Growth Summit 2010.  Coppel's allocated task was to explain how Australia might improve its growth performance.

Coppel's thesis is that Australia's recent growth, measured as increase in per capita GDP, has been achieved through increases in labour utilisation, ie more Australians working more of the time.  However, according to Coppel:
  1. Australian GDP per capita remains 7% below the average for the upper-half of OECD nations (although this gap continues to close);
  2. Australian productivity, measured as GDP per hour worked, remains 15% below the upper-half OECD benchmark, and is not moving from this level; and
  3. growth based on increasing labour utilisation is clearly not sustainable in the long term.

04 October 2010

No Relief for Razer Pending Decision on "Licence to Infringe"

Law v Razer Industries Pty Limited [2010] FCA 1058 (29 September 2010)

Infringement – infringement commenced during period when patent had ceased – whether there is a causal relationship between temporary ceasing of the patent and respondent's allegedly infringing activities – whether respondent can obtain a licence from Commissioner of Patents pursuant to s 223(9) of the Patents Act 1990 – whether respondent entitled to a stay of orders for infringement pending determination of licence application – whether patentee entitled to restraining order preventing respondent from infringement pending determination of licence application

Cause-and-effect necessary for
grant of a license under s223(9)

Back in August we reported on a dispute between Razer Industries Pty Ltd ("Razer") and Robert R. Law ("Law") over Law's patent relating to a scraper blade arrangement for a conveyor belt cleaner ("the patent").  In particular, we reviewed a Patent Office decision in which the Commissioner's Delegate denied Razer's request to dismiss an opposition by Law to an application by Razer for what we dubbed a "licence to infringe".

We noted at the time that we expected to hear more of this dispute, since there are related infringement proceedings ongoing, and apparently various other parties involved.

This decision, issued by Justice Bennett in the Federal Court of Australia, relates to the infringement proceedings, which were commenced by Law on 5 March 2010.  Razer sought a stay of the proceedings, pending the outcome of the Patent Office decision on its application for a licence, on the basis that the infringement question will be moot if a licence is granted, while Law sought an order restraining Razer from infringing the patent during the same period.

02 October 2010

Patentology Adopts DISQUS & Relaxes Moderation Policy

If you look at the bottom of this posting, you will see that Patentology has replaced the "vanilla" Blogger comment system with the DISQUS comment system and moderation tool.

DISQUS provides us with a great deal more control over comments and moderation.  For example, we can elect to require only comments containing certain "restricted words" to be moderated, or to require moderation for comments containing links.  We can also blacklist abusive users by email address, DISQUS username, or IP address.

For readers posting comments, creating a DISQUS profile enables centralised tracking and management of comments across all DISQUS-enabled sites.  DISQUS also allows replies to other comments, and displays these as discussion threads.

01 October 2010

Australian Software Licensing Invention in the News

If only software product activiation
was as easy as flicking a switch...
One of the highest-profile software patent cases of 2009 was the litigation between Uniloc USA Inc and Microsoft, over a patent which Uniloc asserts covers the "software activation" system widely used to register licensed copies of software.  Uniloc provides its own software protection and licensing software and services under the name SoftAnchor.

The case first made headlines when a jury awarded damages of US$388 million against Microsoft for patent infringement, and then again when the presiding District Court judge overturned the verdict in a "Judgement as a Matter of Law" (JMOL).

Naturally, Uniloc appealed the judge's decision.  Oral arguments in the case were heard in the US Court of Appeals for the Federal Circuit (CAFC) last month.  Readers with a burning interest in such proceedings can listen to a MP3 recording of the hearing, available from the CAFC website.

Something that is less well-known (perhaps unsurprisingly, since Uniloc is a US company, and its parent is based in Singapore) is that the founder of Uniloc is an Australian by the name of Ric Richardson, who invented the software licensing system and filed his first patent applications back in the early 1990's.

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