White SW Computer Law
Intellectual Property, Information Technology & Telecommunications Lawyers
Melbourne Office - PO Box 452, COLLINS STREET WEST Victoria 8007 Australia
Sydney Office - GPO Box 2506, SYDNEY New South Wales 2001 Australia
Telephone: Melbourne Office - +61 3 9629 3709 Sydney Office - +61 2 9233 2600
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 ====== White SW Computer Law Intellectual Property, Information Technology & Telecommunications Newsletter - October 1999 ====== ====== White SW Computer Law Intellectual Property, Information Technology & Telecommunications Newsletter - October 1999 ======
-===== IS YOUR BUSINESS NAME TRADE MARK INFRINGEMENT? =====+ 
 +===== Is Your Business Name Trade Mark Infringement? ===== 
 If you select a business or company name or an internet domain name without conducting a trade mark search, you may find yourself a party in a trade mark dispute, particularly where there is a registered Australian trade mark similar to your chosen name. If you select a business or company name or an internet domain name without conducting a trade mark search, you may find yourself a party in a trade mark dispute, particularly where there is a registered Australian trade mark similar to your chosen name.
  
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 In this matter, the audience which was likely to be reached by both corporations was a different but separate sophisticated group of customers who, even if initially confused by the alleged similarities in names would be unlikely to remain confused about the parties'​ identities to the point of entering into a contract. We understand that the initial decision is subject to appeal. Not all businesses would have such a narrow and educated audience and so the Court cannot be expected to make a similar decision in every case where there is such a similarity between trading names and the goods or services sold by the respective parties. In this matter, the audience which was likely to be reached by both corporations was a different but separate sophisticated group of customers who, even if initially confused by the alleged similarities in names would be unlikely to remain confused about the parties'​ identities to the point of entering into a contract. We understand that the initial decision is subject to appeal. Not all businesses would have such a narrow and educated audience and so the Court cannot be expected to make a similar decision in every case where there is such a similarity between trading names and the goods or services sold by the respective parties.
  
-===== SOFTWARE DEVELOPMENT IN AUSTRALIA MADE EASIER ​=====+===== Software Development In Australia Made Easier ​===== 
 On 30 September 1999, the High Court of Australia rejected //​[[case_links#​Data Access Corporation Inc v Power Access Services Pty Ltd|Data Access Corporation Inc's appeal in their copyright infringement claim against Power Access Services Pty Ltd]]//. Power Access Services had written a program which was functionally similar to Data Access'​s program in another language by copying the functionality of the reserved words. On 30 September 1999, the High Court of Australia rejected //​[[case_links#​Data Access Corporation Inc v Power Access Services Pty Ltd|Data Access Corporation Inc's appeal in their copyright infringement claim against Power Access Services Pty Ltd]]//. Power Access Services had written a program which was functionally similar to Data Access'​s program in another language by copying the functionality of the reserved words.
  
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 One area that may be exposed after this decision is that for databases to be entitled to copyright protection as if they were computer programs, there must be, amongst other things, "a set of instructions"​. The Court left open whether or not databases would be entitled to protection under other provisions of the Copyright Act but clearly stated that taking data is "​unlikely"​ to be a breach of the copyright in a computer program. \\  This is an outstanding result for the software development community and is one of the best written judgments in this area for some time. Finally the software development community is beginning to enjoy the benefits of a technologically aware High Court which has coherently clarified its earlier decisions. One area that may be exposed after this decision is that for databases to be entitled to copyright protection as if they were computer programs, there must be, amongst other things, "a set of instructions"​. The Court left open whether or not databases would be entitled to protection under other provisions of the Copyright Act but clearly stated that taking data is "​unlikely"​ to be a breach of the copyright in a computer program. \\  This is an outstanding result for the software development community and is one of the best written judgments in this area for some time. Finally the software development community is beginning to enjoy the benefits of a technologically aware High Court which has coherently clarified its earlier decisions.
-===== IS YOUR INVENTION INVENTIVE? (TRANSPONDERS ARE!) =====+ 
 +===== Is Your Invention Inventive? (Transponders Are!) =====
  
 Patents may also be objected to prior to sealing. Commonly the opponent will claim that the invention is not novel, does not involve an inventive step and/or is not a manner of manufacture. When filing an application for a patent, a search must be conducted for "prior art", which are examples of similar inventions already in use or information already published. The list of prior art together with detailed specifications of the invention are filed as part of the patent application. Patents may also be objected to prior to sealing. Commonly the opponent will claim that the invention is not novel, does not involve an inventive step and/or is not a manner of manufacture. When filing an application for a patent, a search must be conducted for "prior art", which are examples of similar inventions already in use or information already published. The list of prior art together with detailed specifications of the invention are filed as part of the patent application.
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 Microchip was also unsuccessful in its claims that Avid's patent did not involve an inventive step and/or was not a manner of manufacture. However, Avid was requested to prepare some amendments to the claims made in its application. Patent protection is expensive and time consuming to obtain. The financial return expected from an invention must be considerable before patent protection is viable. An alternative to patent protection is the use of a confidential information deed, when discussing the invention, but the legal protection offered by the use of such a deed is not as strong as that offered by a patent. Microchip was also unsuccessful in its claims that Avid's patent did not involve an inventive step and/or was not a manner of manufacture. However, Avid was requested to prepare some amendments to the claims made in its application. Patent protection is expensive and time consuming to obtain. The financial return expected from an invention must be considerable before patent protection is viable. An alternative to patent protection is the use of a confidential information deed, when discussing the invention, but the legal protection offered by the use of such a deed is not as strong as that offered by a patent.
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-This article is a guide only and should not be used as a substitute for proper legal advice, readers should make their own enquiries and seek appropriate legal advice. 
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  This website is a guide only and should not be used as a substitute for proper legal advice.
  Readers should make their own enquiries and seek appropriate legal advice.
  For legal advice please email wcl@computerlaw.com.au