A recent United States statute establishes an expedited pathway for FDA approval of biosimilars (also known as follow-on biologics) – the Biologics Price Competition and Innovation Act (BPCIA), part of the Affordable Care Act. A biologic is a drug derived from a living organism or living cells and is best exemplified by Humira®, the branded antibody for treatment of rheumatoid arthritis. Simply put, a biosimilar is a molecule that copies a branded biologic and is for all practical purposes highly identical to the branded biologic in structure and function. Read More
Your IP Law Report in 17 Syllables
“Judgments are just getting longer and more complicated, I can’t keep up with all of them!”
A familiar refrain uttered by many a lawyer and law student alike, especially in the modern, digital age (although we expect the Courts might refer to the increasing volume of electronic evidence filed by parties in proceedings as a contributing factor!)
So, in that context, could the essence of a judgment be distilled into haiku (short form Japanese poetry consisting of three phrases of five, seven and five syllables)? Well, we are sure going to try! Read More
New Approach to Patentable Subject Matter
The United States Patent Office periodically issues guidance for examiners often in response to a recent court decision or new statute. These guidelines (the Guidance) do not have the force of law but nevertheless establish the specific procedures that the Examiners apply during examination of patent applications.
Examination guidelines were issued on 4 March 2014 to address two recent court decisions related to the subject matter eligibility of certain claims under 35 U.S.C. § 101. Examiners will use tests described in the Guidance to determine the patent eligibility of any claim related to laws of nature, natural phenomena and natural products. Read More
The Patent Office’s First Take on CLS Bank v. Alice
On 25 June 2014, new examination guidelines (the Guidance) from the United States Patent Office were issued in response to the Supreme Court’s decision in Alice Corp. v. CLS Bank International. This case addressed the subject matter eligibility under 35 U.S.C. § 101 of claims related to an abstract idea. The Guidance provides preliminary instructions for analysing claims involving an abstract idea and its applicability to technology areas, including the software and business method fields, which are worthy of attention from applicants.
Although acknowledging the ease of copying photographs on the internet, an Australian Court has warned through the publication of its decision that this copying should not continue. In the case of Tylor v Sevin, a Hawaii, U.S., based photographer sued a Melbourne, Australia, based travel agent regarding a photograph he took titled ‘Waikaki Pink Boat’. The travel agent used the photograph on its website promoting holidays to Hawaii.
After being put on notice of the case, the travel agent refused to take down the photograph or offer to pay a licence fee. Read More
A recent decision of the Australian Patent Office has underscored the importance of acting promptly and diligently at all times when preparing evidence in patent oppositions.
In this case the patent applicant was unable to complete and serve its evidence-in-support and sought an extension of time in which to do so. The Commissioner’s delegate considered the conduct of the patent applicant throughout the period provided for service of the evidence and decided that the patent applicant had not acted promptly and diligently at all times. Read More
Sports Data used to be the official supplier of statistics to the National Rugby League (NRL), the peak competition for the sport in Australia. In 2013 its contract was terminated and a new supplier Prozone was appointed.
In order to provide useful statistics relating to sporting events it is necessary for the statistics provider to have a template or set of criteria which identifies the events that will be captured or entered into the statistics database. Read More
BP’s Application for Registration of the Colour Green as a Trade Mark Rejected by IP Australia
IP Australia has again made it clear that the assessment of a colour trade mark under section 41 of the Trade Marks Act 1995 (Cth) should be no different from the assessment of any other trade mark.
However in rejecting BP’s application for registration of the colour green, the Office noted that while most objects have to be some colour, the act of applying a colour to a product will not act as an identifier for that product. Read More
Additional Damages Awarded for Trade Mark Infringement
Trade mark owners can take encouragement from the Federal Court of Australia’s readiness to award additional damages as a deterrent from further infringement. The Court made its first award of additional damages for trade mark infringement in a case about kebabs, where a claim for actual loss from an infringement could not be made. Additional damages are a useful weapon in a brand owner’s arsenal. Read More
It is very difficult for companies to effectively own colour, as was enforced in Local Directories’ Federal Court victory in its long running dispute against Telstra. Telstra claimed that by its use of the colour yellow for phone directories, Local Directories had engaged in misleading and deceptive conduct and passing off. The Court dismissed these claims and upheld that Telstra’s advertisements published in certain Yellow Pages directories were in fact misleading. Read More