“Why cannot our own creations also create?”: AI systems can be patent inventors in Australia

An artificial intelligence system is capable of being named as an “inventor” of patentable subject matter, according to the Federal Court’s recent decision in Thaler v Commissioner of Patents.[1] Subject to any appeal, this decision has salient implications for the ways in which inventorship, ownership, and inventiveness might be assessed in Australia in the future. … Read more

Sky kicks trade mark bad faith claims back into the box as Court of Appeal allows its appeal in Sky v SkyKick

The Court of Appeal of England and Wales has granted Sky's appeal from the High Court decision that had held that some of its trade mark registrations were applied for in part in bad faith. The Court of Appeal found that it was not bad faith not to have an intention on application to use a mark for everything that could fall within a specification term (here "computer software"), nor was there a requirement to demonstrate a commercial strategy for using every type of good or service that could fall within a general description. The decision reaffirms that bad faith will only be found in exceptional circumstances, which were ultimately not found in this case. Read more

Sound Mark Registration Attempt Fizzles Out In EU General Court Appeal

In the first ruling on a sound mark submitted as an audio file (rather than a word description of the sound) the General Court dismissed the appeal from the EUIPO's rejection of the application for lack of distinctiveness whilst also clarifying the criteria for assessing the distinctive character of sound marks and the perception of those marks in general by consumers. Ardagh Metal Beverage Holdings v EUIPO (T-668/19) 7 July 2021. Read more

The Unwired Planet case – a year on

Last year the UK Supreme Court upheld Mr Justice Birss’ now famous decision in the Unwired Planet case. The Supreme Court’s decision has cemented the UK’s position as a key jurisdiction for FRAND disputes to be decided and opened the door for many more such cases to be heard in the UK. In an article … Read more

NHS fails in appeal on ‘unlawful means tort’ in claim for damages allegedly caused by Servier’s actions in delaying generic market entry

There seems to be growing trend whereby the UK NHS is taking proactive steps to seek damages from pharmaceutical originators based on allegations that the originators wrongly prevented generic products from entering the market as early as they otherwise would have done.  In the latest example, in circumstances where it seems the NHS did not obtain an undertaking from Servier to pay damages to the NHS for an interim injunction obtained in 2006, the NHS has taken a claim for £220 million damages from Servicer, based on the tort of causing loss by unlawful means, all the way the UK Supreme Court. Read more

Federal Court overturns ‘absurd’ Patent Office ruling on patent term extensions for pharmaceutical substances

The Federal Court has rejected the Australian Patent Office’s historical approach to patent term extension (PTE) applications, upholding a challenge brought by two major pharmaceutical companies against an earlier decision of Australia’s Commissioner of Patents. KEY TAKEAWAYS Justice Beach has confirmed that PTE applications must be filed within six months of the first inclusion on … Read more

Regulatory reform for software-based consumer health products – new regulations provide clarity but can they keep up with the technology?

Mobile health apps and devices are everywhere (“mHealth”), with Australians now the biggest consumers of health apps per capita. The TGA recently released a suite of reforms on software-based medical devices and consumer health products to better address this area. But what are the impacts on developers, and will the regulations be “future proof” as … Read more