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






Friday, November 25, 2016

ACCC means business when it comes to cartels (but your trade mark might not)

By Natasha Dixon, Lawyer

The Federal Court has held that the registration of a trade mark in Australia, and the enforcement of rights pursuant to that registration, is not necessarily sufficient to establish that the owner of that trade mark is carrying on business in Australia for the purposes of applying Australia's competition laws.

Allegations were brought by the ACCC against Italian-based company Prysmian and French-based company Nexans SA, claiming that the companies were engaged in price fixing and market sharing agreements. As part of its argument, the ACCC was required to establish that the two international entities were carrying on business in Australia.

Wednesday, November 23, 2016

Leave the Interference to the Ribonucleic Acid: iRNA Patent Finally Gets There

By Lev Gutkin, Lawyer

Talk about perseverance! Four adverse examination reports didn’t stop Arrowhead Research Corporation from pursuing its patent application, and its efforts have finally paid off, after seeing off the final objection, that its patented invention was not a 'manner of manufacture'. Arrowhead is now the proud owner of an interference RNA patent.

The patent application relates to the process of RNA interference and its use for attenuation of unwanted or pathological protein expression, specifically that of spleen tyrosine kinase (Syk). The registrar's most recent ground for rejecting the application was that the patent was not for a 'method of manufacture' because it claimed double stranded RNA molecules. The 'method of manufacture' objection stemmed from the decision of the High Court in D'Arcy v Myriad Genetics Inc, discussed in a previous post. The majority decision in D'Arcy established that naturally occurring DNA sequences, even if isolated from the rest of the cellular contents, failed to satisfy the 'manner of manufacture' requirement as they are in truth better characterised as 'information'.

Monday, November 21, 2016

It's not easy being green

By Natasha Dixon, Lawyer

A recent Trade Marks Office decision, following an opposition hearing, has left the company that manufactures and markets V energy drink (V), red-faced as its application to register a colour mark was refused by the Registrar of Trade Marks.

In 2012, V applied to register 'Pantone 376c Green' (V Green) as a trade mark in respect of energy drinks. The application was opposed by The Coca Cola Company (Coca Cola), on the basis that the V Green was not inherently adapted to distinguish V's energy drinks.

Friday, November 18, 2016

A Channel Nine Exclusive! (or is it?)

By Julia Kovarsky, Associate

In the media world, getting the 'exclusive' is the ultimate goal. However, a recent decision handed down by the NSW Court of Appeal shows that exclusivity may not always be all it seems.

In 2013, WIN Corporation Pty Ltd (WIN) entered into a licence agreement with Nine Network Australia Pty Ltd (Nine) which granted WIN "the exclusive licence to broadcast on and in the licence areas covered by the WIN Stations the program schedule broadcast by Nine" on its channels. The 'licence areas covered by the WIN Stations' referred to WIN's licence from ACMA to broadcast on free-to-air television frequencies in certain parts of Australia. Six months before the WIN licence was due to expire, Nine embraced the digital age and began live-streaming its programming, including into WIN's territory. WIN brought proceedings, claiming that Nine's live-stream was a breach of their agreement – a spoiler to WIN's exclusive scoop.

Tuesday, November 8, 2016

TPP – Watch this space!

By Adrian Chang, Associate

Regular readers of Scintilla will know that we have kept a close eye on the Trans-Pacific Partnership (including reviewing the various drafts leaked by Wikileaks) and you can rest assured we're also keeping an eye on the parliamentary inquiry into the TPP which kicked off yesterday.

The inquiry is to assess the TPP, with particular reference to the impact of the agreement on (amongst other things) Australia's economy, social, cultural and environmental policies, the effect of Investor-State Dispute Settlement under the TPP and rights for copyright holders. The inquiry is due to report its findings by 7 February 2017.

The TPP has been controversial – critics fear that it will undermine Australia's ability to set domestic policy, particularly in the area of the protection that is to be afforded by patents and other intellectual property.  Unsurprisingly, the inquiry has drawn a great deal of interest, with a diverse range of interest groups making 80 submissions to the inquiry committee.

So to keep up to date with the parliamentary inquiry, and other TPP analysis, stay tuned to Scintilla. To get alerts when we publish a post, hit the subscribe button on the right.