Category: IP and Trade Practices

Patent infringement and validity – failure of experimental proof to establish infringement – lack of best method – refusal to amend patent to address lack of best method

Practice and procedure – mandatory interlocutory injunction – no evidence of quantifiable loss – little inconvenience to respondent

Copyright – exclusive rights in respect of commissioned artwork in the US – replica artwork sold by the artist for a similar purpose in Australia

Practice and procedure – separate proceedings in the US arising from same events – obligation to use discovered documents only for the proceeding in which they were originally produced (“Harman obligation”) – circumstances warranting release or modification of the Harman obligation

Trade marks – opposition – whether applicant “true owner” – marks used by associated company of the applicant – whether marks used under licence – whether likelihood of confusion – reputation in trade marks – relevance of prior use

Evidence – admissibility – admissibility of archived internet documents sourced through the “Wayback Machine” – whether business records

Trade mark – trade mark licensing agreement – whether trade mark owner’s plans to brand other products with the licensed mark in breach of the agreement – whether trade mark licensee in breach of agreement

Practice and procedure – discovery – confidentiality – circumstances warranting access limitations additional to the Harman obligation – whether parties “trade rivals” – centrality of documents to issues in the proceeding

Patents – appeal from decision of the delegate – lengthy trial and voluminous evidence – alternative dispute resolution mechanisms

Patents – construction – infringement – validity only if primary judge’s construction was wrong

Designs – infringement – defences – use of a component part of a complex product for the purposes of repair – proof of knowledge that a part to be used for a non-repair purpose – unjustified threats – whether potential availability of repair defence to be taken into account

Trade Marks – infringement – deceptive similarity – relevance of reputation – distinctiveness of acronyms

The trial judge had held that the appellant’s marks were deceptively similar to those of the respondent within the meaning of 120(1) of the Trade Marks Act 1955 (Cth).

Patents – penal notices and injunction against guarantees of supply for Pharmaceutical Benefits Scheme (“PBS”) listing

Patents – invalidity, threatened infringement, relief

Abuse of process – consecutive actions for infringement of divisional innovation patents