a registered Australian Patent and Trade Marks Attorney, and former Special Counsel at Watermark – Intellectual Asset Management, where he specialized in patent law and practice in the fields of digital and computer systems, information and communications technologies, and computer software. Originally qualified in electrical engineering, he spent the first 12 years of his career in academic and industrial roles in research, development and commercialization. He obtained a PhD in optical fibre technology and has over 12 years experience working as part of the team of patent and trade marks attorneys and IP lawyers at Watermark, where he advised and assisted individuals, companies and research institutions with management and protection of their intellectual assets.
My fellow Australian patent attorney Andy Mukherji recently asked the question on this site: Are Australia’s listed IP firms doomed to fail? Doubtless the hyperbole was intentional, but Andy raises a fair point. The Australian IP professions – registered patent and trade marks attorneys (who, for the most part, would be recognized as patent agents rather than attorneys in the US) and IP lawyers – are currently engaged in what might well be regarded as a brave and daring experiment. Prior to 15 April 2013 the regulatory regime in Australia did not even permit patent attorneys to incorporate. Now, less than four years later, not only have many firms chosen to take up the option of incorporation, but Australia now has (to the best of my knowledge) the largest number of publicly-listed IP firms per capita in the world!
But this article is less concerned with actual imperialism, and more with cultural imperialism –particularly the “invasion” of this country by that once all-American, but now global, fast-food chain known variously in its land of origin as McDonald’s, the Golden Arches and Mickey-D’s. Here in Australia, however, McDonald’s most prevalent nickname is “Macca’s”. A recent branding survey commissioned by McDonald’s Australia found that 55 per cent of Australians refer to the company by its local slang name. But the temporary Macca’s rebranding also raises some interesting trademark issues.
As readers will no doubt be aware, Australia is one of the jurisdictions in which Apple is currently pursuing litigation against its Android-based smartphone and tablet competitors. The claims and counter-claims by Apple and Samsung are the subject of a trial in the Australian Federal Court in Sydney which has now been extended into the first months of 2013. According to reports, as many as 22 Apple patents have been asserted against Samsung, although it is as yet unclear how many of these will actually be pressed at trial. A number of the asserted patents are innovation patents. An ‘innovation patent’, is in many respects unique to Australia. An innovation patent provides a ‘second tier’ right, with a lower barrier to validity than the conventional inventive step test, and a shorter maximum term of protection of just eight years.
The gene patents issue had been simmering in Australia for some time, with a Senate Enquiry into the subject having been underway for over a year, but with the Myriad decision in the US, and the Australian litigation, it exploded into the headlines. Within the space of a few months, gene patents became the subject of numerous news articles and opinion pieces (including one by the former leader of the Opposition, and current Shadow Minister for Communications and Broadband, Malcolm Turnbull), and a major report on the Australian national broadcaster’s flagship current affairs program Four Corners. Almost all of this coverage was generally critical of ‘gene patents’, without ever providing a satisfactory definition of the term.