Recent Intellectual Property and Privacy Developments
Manyee Chow | Bloomberg Law
The Australian parliament’s lower house passed the Tobacco Plain Packaging Bill on August 24, 2011. It is anticipated that the Bill will be in the Senate in September and come into effect in January 2012. The Bill mandates that all cigarette packaging should be devoid of all logos and color variations and feature graphic health warnings. If passed, Australia will be the first country to require tobacco products to be sold in plain packaging. See Australia’s Proposed Tobacco Plain Packaging Bill: An Infringement of Trademark Rights or a Step to Better Health? Bloomberg Law Reports – Intellectual Property, July 18, 2011, Vol. 5, No. 29 for further analysis of the Tobacco Plain Packaging Bill and the potential legal implications.
The Canadian Intellectual Property Office has revised its practice guidelines for examining patent applications following the Federal Court decision in Amazon.com Inc. v. Commissioner of Patents, 2010 FC 1011. The guidelines discuss: (1) what the applicant is claiming as its monopoly (the subject matter of the claim); (2) what the inventors actually invented (the inventive concept of a claim); and (3) practical considerations relating to the inventive concept. The guidelines also set out the correct approach for identifying the inventive concept. An application will not be allowed if the claimed monopoly or the actual invention is not patentable.
New Zealand’s Copyright (Infringing File Sharing) Amendment Act 2011 will come into force on September 1, 2011. Following in the footsteps of France and South Korea, the Act institutes a “three strikes” policy where penalties, from fines to possible account suspension for up to six months, are imposed for infringing file sharing activities following a three-notice regime. The law requires Internet service providers (“ISP”) to identify and notify account holders based on their IP address after a copyright holder informs the ISP of an infringement. If the infringing party refuses to cooperate, the copyright holder may bring a claim to the Copyright Tribunal.
Speedier Patent Application Processing Under New Pilot Scheme: The UK Intellectual Property Office announced a new pilot scheme that will allow patent holders in the United Kingdom to process patent applications and assessments quicker in participating countries. The scheme makes changes to the Patent Prosecution Highway agreements between the United Kingdom, United States, and Japan by relaxing current restrictions on inventors’ eligibility for faster patent processing. The scheme, which will run until July 14, 2012, will also reduce the cost of gaining a patent in the countries.
EHRC Held UK Not Providing Sufficient Protection for Individual Privacy Rights: The Equality and Human Rights Commission (“EHRC”) recently commissioned a report on UK’s individual privacy rights and found the laws “fundamentally flawed.” Calling the current legislative framework “weak, fractured and piecemeal,” the EHRC called for legislative reform to ensure that the rights afforded to UK citizens under the European Convention on Human Rights are upheld. Essentially, the report found that various statutory commissioners responsible for protecting information privacy and the current legislative framework had failed to keep up with the technological developments, which has enabled both private companies and the public sector to obtain personal information relatively easily. The report sets out four main recommendations: (1) development of a clear set of privacy principles to be used as the basis for future legislation; (2) reform of existing legislation to conform with the privacy principles set out in (1); (3) promotion of greater regulatory coherence; and (4) utilization and improvement of technological, organizational, and non-legal solutions to protect privacy.
UK to Modernize IP Laws: The UK Intellectual Property Office (“UKIPO”) announced on August 3, 2011, that it will follow the recommendations made in an independent review by Professor Ian Hargreaves on copyright laws. The independent review, “Digital Opportunity: A Review of Intellectual Property and Growth” was released in May 2011. According to the announcement, the UKIPO accepted the following recommendations: (1) creation of a digital copyright exchange to enable licenses in copyright content to be readily bought and sold; (2) establishing a licensing procedure for orphan works; (3) allowing exceptions to copyright for search and analysis techniques, also known as “text and data mining;” and (4) create copyright exceptions for parody.
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