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Intellectual Property Law — Australia — Tutorial 3 Essay Example

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Patents 2

Required reading:

Price, Bodkin, Arnold, & Adjei, Intellectual Property Commentary & Materials, 5th ed, Thomson Lawbook, 2012

Chapter 10 & 11

Discussion questions:

  1. What are the three requirements set out in s 40 of the Patents Act 1990 (Cth)?

One of the requirements of this section is that a provision specification has the mandate of disclosing the invention in a way that should be logical and clear enough for intervention to be performed by what the section term as ‘skilled person in the relevant art.”  Some of the tenets also specified in its sub-sections are that such disclosures must be a method that is conversant to the applicant performing the invention. Consequently, the claim(s) ought to be succinct with regard to drawing or descriptions unless there is necessity to define the invention. Contrariwise, section 18 posits that invention can only be patentable is such is claimed.

  1. What is the basic test for determining if a patent has been infringed?

This will be determined by the court of law if the defendant has taken all of the important integers or features of the claimant. In as much the claimant must certify s 40 of the Patents Act 1990. Consequently, the court has to determine whether or not that what is termed as invention has been disclosed in a patent specifications. In as much, that constitutes an essential or significant integer is left to be a matter of construction of the patent specifications.

  1. What process is followed by courts in infringement proceedings?

The first step that the court will be involved in is the initiation of the process where the claimant makes application therefore such is followed by pleadings from the defendant. The court thereafter embarks on the process of discovery which is the followed by evidence. With regard to evidence, this may be in form of sworn in affidavits of witness statements. The evidence is then followed by trial process, passing of judgement pegged on section of the law and appeal if the defendant so wishes.

  1. What are the rules for interpreting claims in a patent?

Arguing on a bedrock principle of patent law, claims of a patent define the invention to which the one party is entitled. Therefore interpretation of the claim is pegged on the plain language and the definitions; implicit or explicit in the text of patent document. It is also necessary to state that examination is patent application has not been done and may be different when granted. In case of a granted claim, the interpretation will require a reading based on prosecution history—more so the written records of the examination procedures.

  1. What is the “Gillette defence”? What sort of evidence would a defendant need to establish it? When can it be raised?

This is the process where defendant tries as much as possible to bring forth strong counterclaim for invalidation on ground of obviousness or novelty. Basically it is when defendant opts for attack as the best way defending. The defendant will be sure that the plaintiff is convincing the court to give a broad interpretation to the claims before using Gillette defence. This can be raised to put more pressure to the plaintiff so that the plaintiff settles with the defendant in as much as his or her patent has been invalidated.

  1. What are the requirements for indirect infringement under s 117 of the Act? Why did the claim fail in Northern Territory v Collins?

To underscore this section, indirect infringement would mean that if by use of the product already infringes a patent then supplying the same product is on the other hand infringement to the supplier. Therefore the requirement of this section is that if the product is capable for one reasonable use then supplying it is an infringement. This case was thrown out based on the interpretation of s 117 of the Act. It was help that because timber (b) had several uses and (a) supplied commercially, that made it become a ‘staple commercial product’. Therefore basing on s117 (2)(b) there is no liability that can arise especially when such supply is made as a ‘staple commercial product.’

  1. What are the requirements for indirect infringement at common law (as set out in Ramset Fasteners)?

It posits that the user and the supplier of a given product must have an agreement to use a given product and in so doing, it has to be in such a way as to infringe the patent. In as much, it is not prudent for the parties to realize that their acts will in fact amount to patent infringement.

  1. What are the remedies available for infringement, and what are the requirements of each?

The most common remedies are accounts of profit, damages, delivery up and final injunction. All these remedies depend on different interpretations of the court. For instance, there will be no damage remedies is the court realize that the party in breach had no idea it was committing a breach.

  1. In what circumstances will a court order a compulsory licence to work an invention?

Circumstances under which a court may order a compulsory licence vary significantly. A good example is when the compulsory licence will serve the interest of public at large rather than the patent. The second circumstance is under the competition test. In this circumstance, the applicant will have to demonstrate that the relevant patentee is contravening Part IV of the Competition and Consumer Act 2010 (Cth).

BLB3129 Intellectual Property Law

Semester 1 2014