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AUSTRALIAN INTELLECTUAL PROPERTY LAW UPDATE

By Michael Owens of Gadens & Katrina Chambers of Gadens on February 20, 2015
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iStock_000008787544SmallThere have been numerous recent developments in intellectual property (IP) law in Australia.

Below is a summary of some key developments. As with any international jurisdiction, IP law in Australia is complex and requires the expertise of an experienced specialist to navigate it correctly.

INTELLECTUAL PROPERTY LAWS AMENDMENT ACT 2015

Following on from the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth), the Intellectual Property Laws Amendment Bill 2014 (Cth) recently passed the Australian Senate and will soon become law.

The two major changes introduced by the new Act are:

  • The introduction of compulsory licensing provisions under the Patents Act 1990 (Cth) that will allow pharmaceutical manufacturers to apply to manufacture generic versions of patented pharmaceuticals for export to developing countries.
  • The unification of the patent examination procedure for Australia and New Zealand, and the creation of a single register of patent attorneys for Australian and New Zealand practitioners.

For assistance with any intellectual property queries in Australia, please contact Michael Owens (michael.owens@gadens.com) or Katrina Chambers (katrina.chambers@gadens.com).

HIGH COURT GRANTS LEAVE TO APPEAL BRCA1 GENE PATENT DECISION

In D’Arcy v Myriad Genetics Inc [2013] FCA 65, the Federal Court found that isolated genetic material was patentable in Australia.  This decision was upheld on appeal to the Full Federal Court.

The High Court has now granted leave to appeal from the Full Federal Court’s decision, and it is expected that the hearing will be in April 2015.

NEW FRANCHISING CODE OF CONDUCT

Australia’s new Franchising Code of Conduct took effect from 1 January 2015.

Compliance with the Code is mandatory.  It is more important than ever that franchise agreements and disclosure comply, particularly because new, comprehensive penalty provisions have been introduced for non-compliance.

A summarised list of some of the amendments to the Code is below:

  • An information statement must be provided to a prospective franchisee as soon as practicable after that franchisee applies or even just expresses an interest in acquiring a franchised business.
  • There is an express obligation to act towards other parties to a franchise agreement in good faith.
  • There is only one form of disclosure document, regardless of the turnover of the franchised business. Existing disclosure documents must be updated by 31 October 2015.
  • There have been several changes to the mandatory terms of franchise agreements, including dispute resolution provisions; jurisdiction and cost for settling disputes; restraint of trade provisions; and termination in ‘special circumstances’.
  • Ongoing disclosure requirements have been broadened to include ‘associates’ and directors of associates’.
  • There are new record keeping obligations.
  • A separate bank account must be maintained by the franchisor for marketing fees and advertising fees contributed by franchisees.
  • Changes have been made to the end of term notice and arrangements.
  • A master franchisor no longer need provide a disclosure to a subfranchisee. (Disclosure by the subfranchisor only is required.)

Gadens is able to advise on ensuring compliance with the Franchising Code of Contact. Please contact please contact Michael Owens (michael.owens@gadens.com) or Katrina Chambers (katrina.chambers@gadens.com).

PRIVACY LAWS

Major changes to the Privacy Act 1988 (Cth) came into effect from 12 March 2014. The changes impact the way businesses collect, use, store and disclose personal information, and privacy policies must comply with the changes.

Special rules apply to direct marketing, overseas disclosure, collection of unsolicited information, requests for access and correction, and complaints.

The changes introduce a new obligation to put systems and procedures into place that will ensure that all organisations comply with the new Australian Privacy Principles, and that privacy complaints and enquiries are dealt with appropriately, including requests for access. Private sector organisations should also designate a Privacy Officer and set out in writing what the Privacy Officer’s obligations will be.

The Australian Privacy Principles apply to any private sector organisation with an annual turnover of more than A$3 million. Health service providers and businesses that buy or sell personal information without the consent of the relevant individuals must also comply, regardless of their turnover.

Finally, credit providers should be aware that there are new provisions dealing with the use and disclosure of credit information and credit eligibility information, including consent requirements. There is also a new, recently registered, Credit Reporting Privacy Code.

Gadens can assist with privacy law compliance and advice. Please contact please contact Michael Owens (michael.owens@gadens.com) or Katrina Chambers (katrina.chambers@gadens.com).

Photo of Michael Owens of Gadens Michael Owens of Gadens

Michael has more than 25 years of experience in corporate litigation, dispute resolution, and intellectual property.  He advises rights owners and users on the development, protection and management of their intangible assets including inventions, brands, business secrets, copyrights, contracts, and reputations.  He also…

Michael has more than 25 years of experience in corporate litigation, dispute resolution, and intellectual property.  He advises rights owners and users on the development, protection and management of their intangible assets including inventions, brands, business secrets, copyrights, contracts, and reputations.  He also advises on competition matters, including restrictive trade practices, consumer regulation and non-compete agreements.

Michael also has substantial experience in social media, intra-business disputes, urgent, complex and multi-party commercial litigation, cross-border enforcement and mediation.

Michaels email is michael.owens@gadens.com.

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Photo of Katrina Chambers of Gadens Katrina Chambers of Gadens

Katrina holds degrees in both Science and Law, as well as a Masters in Intellectual Property Law. With more than 15 years’ experience, her clients have ranged from global companies, the university sector, the public sector, a major Brisbane hospital, SMEs and start…

Katrina holds degrees in both Science and Law, as well as a Masters in Intellectual Property Law. With more than 15 years’ experience, her clients have ranged from global companies, the university sector, the public sector, a major Brisbane hospital, SMEs and start up companies.

She is known for providing accurate, practical advice, with a focus on solutions and her clients’ objectives. Her practice includes licensing and commercialisation of IP, assistance with IP ownership and structuring issues, research and development collaborations, alliances and joint venture arrangements, the sale and purchase of IP assets and companies, IP audits and due diligence, establishment of franchise systems, manufacturing, supply and distribution agreements, software, technology and other services agreements, general contracts law and commercial and corporate law. Katrina also advises in relation to protection of intellectual property assets, privacy and franchise compliance, the Australian Consumer Law, infringement of copyright, trade marks, patents and designs, protection of data, know how and other valuable confidential information, advertising law and domain name disputes.

Katrina sits on the Queensland committee of the Licensing Executive Society of Australia and New Zealand (LESANZ). She is the winner of an International Law Office Client Choice Award 2013 for Healthcare and Life Sciences in Australia, and has been voted by her peers as one of Australia’s Best Lawyers in Intellectual Property Law in 2014.

Katrina’s email is katrina.chambers@gadens.com.

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  • Posted in:
    Intellectual Property
  • Blog:
    ILN IP Insider
  • Organization:
    International Lawyers Network
  • Article: View Original Source

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