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16Intellectual Property
© Oxford University Press, 2007. All rights reserved.
Intellectual Property
Learning Objectives:
• Understand what is intellectual property;
• Explain what is meant by the term copyright;
• Understand how copyright may be infringed;
• Explain how a trademark operates;
• Describe the patent application process;
• Understand the law on registered designs.
Intellectual Property cont ...Copyright: What is it?
• Copyright is one of the most common forms of intellectual property right and is created when a person or entity produces an “original work”.
• Originality
• No formal registration process
• Duration:- Life of the author plus 70 years.
Intellectual Property cont ...
Copyright Infringement: How does it occur?
• Can be either direct or indirect.
• Substantial reproduction of the work
• Test of objective similarity:
Hart v Edwards Hot Water Systems (1985) 61 ALR 251.
Intellectual Property cont…
Television broadcasts
Channel 10 v Channel 9 (“the Panel Case”) High Court held that copyright does not subsist in each individual image and copying an individual image or frame could not constitute a substantial taking for the purposes of infringement.
Intellectual Property cont ...
Copyright Defences: What is available & how do they apply?
• fair dealing for the purpose of research and study (s.40 Copyright Act);
• fair dealing for the purpose of criticism or review (s.41 Copyright Act); and
• fair dealing for the purpose of news and reporting (s.42 Copyright Act).
Intellectual Property cont ...Trade Marks
What is a Trade Mark?
• The main elements of a trade mark include a sign that is in use or intended to be used and is capable of distinguishing goods or services.
• Key test of “distinctiveness”.
Intellectual Property cont ...
How does one obtain a Trade Mark?
Registering a trade mark involves a number of steps as outlined in the following diagram.
Intellectual Property cont ...
How is a Trade Mark infringed?
• Direct Infringement:- 120(1)
• Indirect Infringement:- Section 120(2)
• Well-known Trade Marks:- Section 120(3)
Intellectual Property cont ...
Patents
What is a patent?A patent provides the most exclusive form of intellectual property and are given to inventors who satisfy the following conditions:-
• a manner of manufacture; • novelty;• inventive step;• utility; and • be not in secret use.
Intellectual Property cont ...
• Test of patentable invention.
• The threshold test has been interpreted to mean that subject matter of the patent must not already exist or be so obvious to a person skilled in the relevant field or art.
Intellectual Property cont ...
How is a patent infringed? S.17 Patents Act
• supply or sale of infringing material, importation and trafficking,
• use of subject matter without the consent of the patent holder and
• making infringing copies.
Intellectual Property cont ...
What Defences are available?
• Limited defences are available for an action of patent infringement:-
• use of invention in foreign vessels, aircrafts and prior use: s.118-119.
• innocent infringement: s.123.
Intellectual Property cont ...
DesignsWhat is a registered design?
Designs Act 2003 (Cth) • streamline the application and registration process for
registered designs;• single design or multiple designs in a single application • consistent enforcement and dispute resolution procedures • registration period reduced from 16 years to 10 years.
Intellectual Property cont ...
How does one register a design?
• Test of new and distinctiveness;
• Designs Registrar Formalities Check;
• Registration Details contained in Register
• Certificate of Registration