In the , the flood of computationally predicted genes has introduced a new challenge for the patent system: How much does a gene patent have to disclose to satisfy the “useful” requirement for patentability? In Human Genome Sciences Inc v Eli Lilly & Co, , the United Kingdom Supreme Court (UKSC) unanimously held that a patent for a gene sequence, without having done any concrete functional experiments, is a valid patent. The decision has significant implications on the scope of disclosure for gene patents and gives rise to far-reaching consequences in the scientific and biotechnology industry.

Background and Facts

Based on bioinformatics, scientists at the Human Genome Sciences (“HGS”) discovered a novel gene called Neutrokine-α and predicted it to be a member of the TNF ligand superfamily. The patent, which was granted by the European Patent Office (EPO) in 2005, claims the nucleotide of Neutrokine-α, the amino acid sequence and its antibodies, which might be useful for the diagnosis or treatment of an extraordinarily large range of immune disorders. However, there is no experimental data to support these suggestions.

Eli Lilly opposed the patent, arguing that the patent did not disclose a practical way of exploiting the gene. , Eli Lilly has already spent $50 million on the development of an antibody to Neutrokine-α and plan on spending another $250 million in clinical trials.

Judicial History

The Opposition Division of the EPO revoked the patent on the basis that the invention did not have a known function. The Technical Board of Appeal held that the patent was valid because a person skilled in the art would have appreciated the general knowledge of the TNF ligand superfamily.

Eli Lilly brought parallel proceedings in the UK Patents Court for revocation of the patent. At the Mr. Justice Kitchin stated that the specification “contains extravagant and sometimes contradictory claims” and struck down the patent. The also invalidated the patent, asserting that “however clever and inventive you may have been in discovering a gene sequence, you cannot have a patent for it or for the protein for which it encodes if you do not disclose how it can be used.”

Issue on Appeal

The primary issue is whether the requirement of industrial applicability in Articles 52 and 57 of the (“EPC”) extends to a patent for biological material. To satisfy the requirement of industrial applicability, the invention must be made or used in an industry.

UK Supreme Court Decision

The UKSC unanimously held that the patent satisfied the requirement of industrial application. Lord Neuberger, penning the leading decision, based his reasons on the policy argument advanced by the BioIndustry Association (BIA) and a desire to be consistent with the EPO jurisprudence.

The BIA, which is an association representing the bioscience sector with an aggregate turnover of £5.5 billion in 2010, intervened as a neutral party. It submitted that following the Court of Appeal decision will “make it appreciably harder” to satisfy the patentability requirement in the future, and will cause the “UK bioscience companies great difficulty in attracting investment at an early stage in the research and development process.”

Even though Lord Neuberger recognized that “it would be undesirable to have a monopoly over a particular biological molecular too early, because it risks closing down competition”, His Lordship ultimately agreed with BIA’s submission and said that “it would be wrong to set the hurdle for patentability too high.”

Next, Lord Neuberger made an effort to align UK patent law “so far as possible” with the EPO jurisprudence. Even though the UK Court of Appeal held, and Eli Lilly argued, that the Board’s decisions should carry less weight because the proceedings were unopposed and without cross-examination, Lord Neuberger rejected the argument and stated that the Board has applied its principle consistently. After reviewing the Board’s approach to Article 57 in relation to biological material, Lord Neuberger stated, among other things, that a “plausible” or “reasonably credible” claimed use, or an “educated guess” on biological function can suffice even without any experimental or wet lab evidence. Since the newly discovered gene belongs to the well-known TNF ligand superfamily, where its members share many common features, finding this new member will have great value and the “educated guess” made in the patent application is plausible. Therefore, the gene patent is held to be valid.

Comments

Whole genome sequencing projects have inundated the bioinformatics world with a vast amount of data. It is expected that the rate of gene discovery will continue to accelerate; yet these newly discovered genes would not be very useful until further functional or therapeutic research is performed. However, allowing a monopoly on gene sequence will reserve this unexplored territory for the patentee, thereby hindering research in the community. The anti-competitive effect may also undermine the quality of experimental data. Without good biomedical research, human health may suffer.

Further, the patent gives the patentee over others who have been actively investigating in the field. For instance, researchers who have worked on the TNF ligand superfamily for years may now have to pay a licensing fee for including the patented gene in a routine experiment. Rather than promoting innovation, this unfair arrangement may become an impediment to scientific progress.

A policy goal of the patent system is to encourage others to perform fair research and make improvements on the patented invention during the monopoly period. However, given the broad patent claims in a gene patent, the line between fair research and patent infringement is blurred. For example, if others discover a genetic variant of the patented gene, it is unclear whether the finding is a patent infringement or not. Such uncertainty in law will inevitably lead to an increased number of patent infringement litigations in the future.

Given that bioinformatics is becoming an increasingly popular method to draw predictions on the function of a gene, and that this is a UKSC decision that many will follow, the trend of gene patenting based on computational predictions will probably continue. Therefore, it is imperative to devise a solution to preserve the quality of granted patents and to prevent clogging up the patent office with unmerited applications.

One possible solution is to set a high threshold of reliability for computationally derived data and grant patents only to those with sufficient accuracy. If computational methods become highly accurate and predicted the function of the gene with 99% accuracy, such gene patents should be allowed. On the other hand, if the prediction has 50% accuracy, then the gene should not deserve patent protection. Setting a clear benchmark will prevent patent applicants from wasting effort to file for patent protection. Until such highly accurate bioinformatics methods become available, a higher standard of disclosure should be required for computationally derived gene patents.

The post UK Supreme Court Allows Gene Sequence Patents appeared first on IPOsgoode.

poses an important question to online Internet Service Provider (ISP) – should an ISP filter and block internet content to prevent copyright infringements?

The litigation in Sabam v. Scarlet in 2007 when a Belgian collection society SABAM wanted Scarlet, an ISP, to monitor internet traffic and block peer-to-peer file sharing. The high court in Brussels ruled that Scarlet would be financially penalized if it did not implement a system for filtering and blocking sharing of copyrighted files. Now, the European Court of Justice (ECJ) had to answer whether the Charter of Fundamental Rights would allow the court to order an ISP to block content on its network.

Advocate General Cruz Villalón, advisor to the Court of Justice of the European Union (CJEU), , in an opinion on the case, that forcing ISPs to implement a filtering and blocking system is imposing a “new obligation” and doing so would be “a restriction on the right to respect for the privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights. By the same token, the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights.”

However, the Advocate General held that the rights and freedoms of internet users could be reasonably restricted if it were adopted on “a national legal basis”, and that the “quality of the law” is sufficiently precise with clear and predictable terms.

Although the most effective solution to copyright infringements would be to block internet traffic or shut down file sharing websites, any restraint on internet usage would impinge an individual’s right to freedom of expression.  While the Advocate General’s opinion is not binding on the Court of Justice, it would be interesting to see how the Court would rule on this case.

The post Sabam v. Scarlet: Court Advisor Opines on ISPs' Role in Preventing P2P File Sharing appeared first on IPOsgoode.

After the Huffington Post was sold to AOL for in February, former HuffPost blogger Jonathan Tasini filed a against AOL/Huffington Post and co-founders, Arianna Huffington and Ken Lerer, for “unjust enrichment and deceptive business practices.”

This lawsuit is the next chapter in Mr. Tasini's work as an activist for authors' rights, particularly relating to authors' copyright in online versions of their work.  We have written previously on the proceedings in , and .

Mr. Tasini’s current lawsuit, in which he is seeking class-action status, argues that bloggers are entitled to an estimated of the $315 million that AOL paid to buy the website.  The Huffington Post has of writers: staff writers and bloggers. Staff writers have deadlines and specific assignments, but bloggers are under no obligation to write - they are free to blog whenever they like, whatever they like. Mr. Tasini fell into the latter category. Yet, after submitting some 215 blogs, Mr. Tasini that blogging is slavery, and that

the Huffington Post’s bloggers have essentially been turned into modern-day slaves on Arianna Huffington’s plantation. She wants to pocket the tens of millions of dollars she reaped from the hard work of those bloggers…  This all could have been avoided had Arianna Huffington not acted like the Wal-Marts, the Waltons, Lloyd Blankfein, which is basically to say, ‘Go screw yourselves, this is my money.’

The Huffington Post responded by saying that the lawsuit was “”. Arianna Huffington also analogized the Huffington Post with other websites and said that the Internet has changed the way that traditional writers have worked. Various websites, including Facebook and Twitter, all have their content generated by people who want to “tell the stories of what is happening in their lives.”  She stated,

Free content -- shared by people who want to connect, share their passions, and have their opinions heard -- fuels much of what appears on Facebook, Twitter, Tumblr, Yelp, Foursquare, TripAdvisor, Flickr and YouTube.

It might be difficult to claim unjust enrichment when the Huffington Post has provided a platform for Mr. Tasini, and in particular other bloggers, to promote, to gain exposure and, hopefully, to make names for themselves. However, I wonder whether Mr. Tasini owns all the rights to his work published on the Huffington Post website or whether he relinquished all his rights once he posted the articles on the website. If such a property right claim could be established, then should Mr. Tasini be appropriately compensated when the AOL 'bought' his work?

The post Tasini Takes on Huffington Post over Compensation for Blog Posts appeared first on IPOsgoode.

Almost a month after the disaster in Japan, dire effects are still emerging. Global companies, including Sony, Apple Inc., and Nokia, are  a supply shortage in parts and components, thus causing major disruption to their supply chains.

Sony plants in Japan have already been closed and five more locations may have to suspend or reduce their production if the shortage continues. Moreover, production of Sony PlayStation game consoles would have to be shifted overseas. Digital camera maker Canon, in a on its official website, also said that their operations may have to be suspended for more than a month and may have to rely solely on operation sites in Japan that have not been affected.

An estimated of the global silicon wafers supply, which is used to manufacture integrated circuits and other micro devices, originate from Japan. Japan is the semiconductors supplier in the world. After the earthquake, the stock prices of chipmaker companies, including Micron Technology and SanDisk Corp, rose 3.2% and 1.8% respectively due to the drop in supply. Other companies not based in Japan, including Apple Inc., due to the lack of NAND flash memory chips, which are made by Toshiba Corp and SandDisk in Japan. Apple’s current flagship product, the iPad 2, also numerous parts that are produced exclusively in Japan. Hence, its supply might be affected and would not be able to match current market demands.

Malcolm Penn, chief executive of the research firm Future Horizons, that the disruption of the supply infrastructure will be most evident in three months. Chief executive Yang Yuanqing of Lenovo also told : "In the short term, there won't be much impact. We are more worried about the impact in the next quarter."

The refusal of shipping companies to go to Japan would further exacerbate this problem. Due to the of radiation exposure and their overall safety, some German ocean freight companies have reportedly been avoiding the Tokyo Bay area.

The Japanese government has requested that factories and citizens conserve electricity during these difficult times. Yet, given the economic interests at stake, electronic companies are unlikely to comply. This disruption to the global economy is causing far-reaching supply chain issues that could potentially get worse in the future.

Perhaps it is time to buy that gadget you have always wanted before it gets too expensive or its supply runs out!

The post Japan Disaster puts Supply Chain in Disarray appeared first on IPOsgoode.

The Australian is currently formulating a “code of conduct” for the Internet Service Provider (ISP) industry in order to clarify the steps ISPs should take if their subscribers have engaged in copyright infringement.

In a landmark copyright infringement case, Roadshow Films Pty Ltd. v. iiNet, the Federal Court of Australia that ISP iiNet did not the pirating of copyrighted materials of its file-sharing subscribers. This claim was brought, more than two years ago, by the Australian Federation Against Copyright Theft (AFACT), an anti-piracy organization representing 34 movie studios. At trial, AFACT argued that iiNet, by failing to take steps to stop infringing conduct, authorized piracy on its network. However, the Court that “an ISP such as iiNet provides a legitimate communication facility which is neither intended nor designed to infringe copyright….iiNet is not responsible if an iiNet user chooses to make use of [the BitTorrent system] to bring about copyright infringement.”

An appeal against this judgment was dismissed. Following the dismissal, the IIA has planned to develop an to clarify the role of ISPs in preventing piracy. This code, which should be implemented within the year, is intended to provide certainty and guidance for internet intermediaries, ISPs, search, hosting and social media providers, and future courts.

"[The code] would definitely be something that the court would have to take into account when determining future cases of [copyright infringement] authorization,"  IIA chief, Peter Coroneos.

The ISP iiNet together with the IIA, believe that is the reason for copyright infringement. They claimed that piracy could be prevented if film studios could generate more supplies in proportion with the demand.

"If users have access to more and better content, when, where and in the form they choose to consume it, and at a realistic price, we're quite sure the motivation for infringement will decline. We certainly don't condone the infringement of copyright but internet users need attractive, lawful alternatives if we are to see positive behavioural change. There's no reason why Australia shouldn't be leading the way here," Mr Coroneos .

It is uncertain whether the code would force ISPs to provide notification, suspension or termination of user accounts when the users engage in copyright infringement. If it does, it might open a floodgate of liability for the infringement by users. It is also possible that the costs of internet services would increase, given that ISPs would be compelled to monitor their users and impose measures for such usage. On the other hand, considering the suggestion by iiNet and IIA, an alternative approach would be to increase supply in order to decrease copyright infringement. This is demonstrated by the success of that allows online streaming for a small fee, and the recent between Warner Bros and Facebook to allow users to watch movies inexpensively.

The post Australian IIA to Create Code of Practice for ISP Industry appeared first on IPOsgoode.

Ivy Tsui is a JD candidate at Osgoode Hall Law School.

Water is a crisis of inconsiderate policy making and poor water management. Governments, policy makers and communities around the world must actively engage in addressing water management challenges. For example, the research arm of innovations must be strengthened and technology transfer must be spread to an expanded circle of developing countries.

World Water Day 2011

started when the designated March 22nd, 1993, as the first World Water Day to promote international efforts to sustain freshwater resources. This year’s main event will be hosted in Cape Town, South Africa, and other major events, including Toronto’s , are also happening to celebrate this valuable and essential resource.

This year’s theme, “”, with the slogan “Water for cities: responding to the urban challenge”, focuses on the impact of growing urban populations and industrialization around the world. It aims to facilitate policy dialogue and collaborations among governments, organizations, communities, and individuals around the world for sustainable urban water management,

Calling for a global campaign on urban water challenges is not an exaggeration. The facts to this pressing issue speak for itself: living in slums or bustees around the world have no water sanitation facilities. These people need potable water and sanitation services to keep cities free of diseases. In addition, there is an inequality in the distribution of water—the poor have the least access to water, and are paying up to for one litre of water than their richer neighbours because they have to buy from private water vendors.

Although the United Nations had been making and “successfully” improved access to drinking water for urban dwellers and connected 813 million people to sanitation facilities between 1998 and 2008, the urban population also grew by in that period.  Thus, the net result offsets the headway made and undermines progress in making water resources sustainable. Adding to this problem is the lack of wastewater treatment and drainage facilities. Water is polluted and supply is sharply depleted. Rapid urbanization also leads to an over-exploitation of water resources. This soaring population and industrialization are posing significant threats to health and the environment because contaminated drinking water could spread cholera, malaria, and other water-borne diseases.

Hand-Operated Water Pump: A Canadian Invention for Developing Countries

In 1978, IDRC (International Development Research Centre) Professors Alan Plumtree (mechanical engineering) and Alfred Rudin (chemistry) at the University of Waterloo and asked them to design a hand pump that would be reliable and inexpensive enough for poorer countries to afford, yet simple enough for villagers to maintain and repair themselves. The design—known as the Waterloo hand pump—contains one crucial feature: the adaptability to different materials and environmental conditions. For example, while many developing countries may not have steel foundries, many have access to plastic extrusion and moulding technology so that they could manufacture the hand pump locally and inexpensively.

The technology of the Waterloo hand pump design was to researchers in other countries, which then made adaptations specific for their local conditions. The most successful adaptation of the Waterloo pump to date is the  model, which was developed at the University of Malaya.

Today, different models of the pump exist to accommodate different environmental and social needs—for example, to pump water from varying depths of groundwater or to supply adequate water for a big village. The most commonly used model, with a depth of 30 metres of groundwater supplies, costs , which is only one-third to one-fifth of the cost of other similar hand pumps on the international market. As of August 1996, 11,100 Unimade hand pumps had been sold to 13 developing nations.

The two researchers at the University of Waterloo never profited from their work, but they it rewarding “to know that you’ve done had a direct, beneficial impact on other people’s lives.” The discovery is featured in this .

Water is not a scarcity crisis; rather, it is a crisis of inconsiderate policy making and poor water management. Urbanization leads to pollution and increased demand—these must be recognized to stop over-exploitation. We must respond to the critical challenge of providing safe drinking water and water sanitation facilities everywhere. Governments, policy makers and communities around the world must actively engage in addressing urban water management challenges. For example, the research arm of innovations must be strengthened, and technology transfer must be spread to an expanded circle of developing countries. Canada is the highest per capita water user in the developed world. We, too, ought to implement good practices; we should water.

The post World Water Day 2011 – Responding to the Urban Challenge appeared first on IPOsgoode.

Members of the music and radio broadcasting industries provided comments related to at the  of the Legislative Committee on March 1 and 3, 2011. This post reports on opening statements made by individuals and groups and focusses on comments regarding the Bill.  It reports neither on questions posed by Members of Parliament nor on the answers given by the presenters.

Music Industry

Canadian music companies and artists presented support for the Bill at the March 1st hearing. Ms. Maïa Davies, a Canadian songwriter and recording artist, stated that illegal downloading is simply a form of stealing. Mr. John-Paul Ellson, Chair of the Canadian Council of Music Industry Associations (MIA), which is a non-profit corporation providing professional development and pro bono legal services to new artists, also pointed out the general mistaken belief that the Bill has no effect on new artists. Quite the contrary, he said, digital piracy has a tremendous effect on new artists.

Mr. Grant Dexter, President of MapleMusic, also strongly support this bill. However, he criticized that the language used in the Bill is too broad to effectively meet its objectives. For example, the user-generated content provision and the exceptions related to making copies of legally purchased music within the households, should be more limited in scope. Furthermore, he suggested that a higher penalty should be imposed to effectively deter theft.

Loreena McKennitt, an independent artist from her own record label called Quinlan Road Limited, made several recommendations on Bill C-32. Firstly, she suggested that the language needs to be clear of what is intended. Secondly, she said that the companies who play a significant role in the management of online content, including ISPs, BitTorrents and isoHunts, and YouTube, should be responsible for the “copying” because these companies are making profits “off the eyeballs that are driven to their site to access illegal content.” On this point, she emphasized that exemptions should not be easily given. Thirdly, she suggested that the use of levies would not be helpful as it is not a meaningful income stream for artists. She advised the use of a request system, where users who wanted to use the music could simply obtain permissions for that use; thus, the content creators remain to have full control over their work.

Radio Broadcasters

Copyright is one of the biggest issues facing radio broadcasters. As Bill C-32 is granting exemption of the reproduction tariff to radio stations, the broadcasting industries are strongly supporting this bill. At the March 3rd hearing, the industry provided various rationales to grant exemptions to radio stations. All speakers insisted that copying, which included video transfer, is simply a technical requirement to broadcast music on air and confers no additional revenues to the broadcasters.

Sylvie Courtemanche, Chair of the Canadian Association of Broadcasters, emphasized the importance to clarify the incidental inclusion provision in Bill C-32. Ms. Courtemanche contended that the reproduction tariff is distributed to overhead, legal costs and administration costs, thus its elimination is not carving money out of artists. She recommended amendments to promote technological neutrality, to clarify the intention to provide full exemptions for broadcasters to reproduction, to minimize confusion and ensure consistency with the Copyright Act as a whole.

Brad Phillips, President of the , and Vice-President of Astral Radio (BC Operations), showcased some astonishing achievements of his companies, and praised the local media for promoting unsigned artists. Mike Keller, Vice-President Industry Affairs at , further illustrated the justifications for broadcasters to be exempted from reproduction fees. He claimed that, because private broadcasters contributed $51 million to marketing strategies to help new artists to launch their career, the statutory requirement to pay copyright royalties for broadcasting is unfair. Similarly, , a radio consultant from Quebec, said that the use of digital media has resulted in an increase in cost in radio programming when radio stations invested in these new technologies. He claimed that “any increase in royalty will mean an exit from the radio networks in Quebec.”

Ross Davies, Vice-President of Operations at , pointed out that the cost of copyright has gone up 500% since 2001, which is posing a danger to the business. He said that the exemption of the reproduction tariff must be granted to radio station because local radio is the most influential matter to make direct contributions and nurture new artists,. He further noted that his company supported, financially, many well known Canadian activities including the and the Winnipeg Jazz Festival.

Paul Larche, owner and president of , approach this issue from a historical perspective. Traditionally, music industry sends radio broadcasters a copy of their music and no fee was ever paid by the broadcasters to obtain that copy. When music is being transferred on servers, the simple “upload” is then identified as a “copyright event” that is valued at $21 million by the in June 2010. He said that, because radio stations are making three copyright payments to simply accept an invitation to play their song, the statutory requirement is simply unfair. Furthermore, he noted that artists are often unaware of such copyright payments as most money goes outside of Canada to international companies.

Further hearings on Bill C-32 were held on March 8^th and 10^th; details will be covered later on IP Osgoode. Stay tuned!

The post Musicians and Radio Broadcasters Speak Up on Bill C-32 appeared first on IPOsgoode.

Facebook is moving forward with its  to allow third-party developers and external websites to access users’ home address and phone numbers despite widespread criticisms.

Privacy advocates had intense reactions round the . U.S. House of Representatives Edward Markey and Joe Barton sent Facebook a  questioning the company’s plan and raising concerns for people who may opt to share their contact information with third-party developers without carefully understanding the ramifications.

Public objections did not persuade Facebook to abandon its plan. In a to The Huffington Post, Facebook claimed that the plan would make online shopping speedier:

“Despite some rumors, there’s no way for other websites to access a user’s address or phone number from Facebook. For people that may find this option useful in the future, we’re considering ways to let them share this information (for example to use an online shopping site without always having to re-type their address). People will always be in control of what Facebook information they share with apps and websites.”

In the to the U.S. Congressmen, Facebook  that it will take positive steps to highlight the sharing process so that the users must have to express consent as to what they share. However, I am unsatisfied with this framework because users are prone to clicking “Allow” just so that Facebook will allow access to the application, which could be a game or a quiz. In addition, the implementation of this platform could potentially “coerce” users to share contact information with advertisers just because they wanted to use the applications.

Facebook also noted that it is “actively considering” whether to allow third-party applications to request contact information from users under 18 years old. In addition, Facebook also claims that this is not a concern for minors under 13 because Facebook prohibits them from joining. However, in my view, these explanations are inadequate. It is unclear how technical measures could be effectively implemented to prohibit usage of service. Just as one could easily report another name on the account, it is easy for users to falsely report their age on Facebook. Furthermore, it does not explain how Facebook would protect the elderly, whom could have different understanding of identity theft and online fraud.

Facebook has been pushing , by creating networks of friends and activities, and allowing user profiles to be  by the public on Google, Yahoo and MSN Search. I question whether the behind this controversial plan is the money that third-party developers will be giving to Facebook. Perhaps Facebook is encouraging third-party developers to create software for Facebook. It seems to me that Facebook, by trading in users’ contact information for economic gain, is to become the most trafficked site and ultimately, a money-making marketing channel for business.

In 2009, Canada’s Privacy Commissioner was of Facebook, claiming that it had breached the  (PIPEDA) by third-party developers to access to users’ contact information, keeping users information from deactivated accounts, and permitting users to “tag” photos of non-users without their consent. After Facebook implemented some platform changes to address these issues, the Privacy Commissioner concluded that the new platform is adequate to inform users regarding what information they are sharing. It would be interesting to hear comments from the Privacy Commissioner on Facebook’s decision to “sell” user’s information.

The post Trade-Off: Privacy and Facebook Application appeared first on IPOsgoode.

The UK  (PCC) has ruled that  Twitter messages in a national newspaper is not an invasion of privacy.

Sarah Baskerville, an administration manager at the Department of Transport in London and an active user on Twitter, posted a series of “” criticizing government policies, being hungover at work, and saying that the leader of a government training course was “”.  In the UK, a civil servant has a fiduciary duty to be politically impartial under the .

Two newspapers, including the  ���Ի���, re-published her Twitter messages and wrote articles about her excessive participation in social networking websites. Ms. Baskerville complained to the PCC, claiming that the information was private and she had a “” that her messages would be published only to her 700 or so followers. The two adjudicated complaints can be read  ���Ի���.

In the ruling, the Commission took into consideration the fact that Baskerville’s tweets were publicly accessible on the web. This is especially important for Twitter, since any post can be re-tweeted to a wider audience without the author’s consent. The decision also took into account the  in the UK, which sets out that public servant should always maintain political impartiality and should never allow your personal political views to determine the advice you give. Thus, in this case, freedom of the press trumps personal privacy.

“This is an important ruling by the commission. As more and more people make use of such social media to publish material related to their lives, the commission is increasingly being asked to make judgments about what can legitimately be described as private information,"  PCC director Stephen Abell.

An interesting aspect of this case relates to copyright protection. Had Ms. Baskerville pursued a copyright claim over her Twitter messages, the two newspapers might have been barred from re-publishing her “tweets”. According to the  on Twitter, it clearly states that users own all the rights to the contents that they posted on Twitter. Copyright law protects passages or pictures on the Internet. However, the 140-character limit to a Tweet might severely curtail creativity and fail the originality requirement for copyright protection. Thus, in my opinion, tweets are most likely to be deemed un-copyrightable.  At the rate Twitter-related issues are appearing before bodies like the PCC, it would not be a surprise if the copyright issue was also one day dealt with by a court or other authority.

The post Tweeters Beware! appeared first on IPOsgoode.

The Australian Government’s (ACIP) has released its on the review of “Patentable Subject Matter” – detailing the types of inventions that should be patented.

On the whole, the ACIP seeks to standardize the proof for patentability and clarifies the language used in the current (“Act”), with an awareness to promote economic endeavours and exclude materials due to ethical and social concerns. The current Act defines patentable inventions as those being directed to “”. However, this definition is obscure, ambiguous, and confusing. In 2008, the Minister for Innovation, Industry, Science and Research has requested the ACIP conduct a review on patentable subject matter. After receiving from stakeholders and holding public discussion forums, the report makes four broad recommendations, which may be summarized as follows.

The first recommendation is to include a statement of objectives in the Act to outline its purpose. Specifically, the ACIP recommends that the statement of objectives should provide “an environment that promotes Australia’s national interest and enhances the well-being of Australians by balancing the competing interests of patent rights holders, the users of technological knowledge, and Australian society as a whole.”

The second recommendation is to clarify the language used in the Patents Act 1990. First, clear and contemporary language drawn from an Australian High Court decision in should be used to define the requirement of patentable subject matters, meaning that patentability would be examined based on the principles of inherent patentability. Moreover, the Patents Act 1990 should be amended to improve clarity, to remove overlap of the patentable subject matter provision with the other provisions, and to include the requirement of usefulness to encompass the utility aspect of patentable subject matter.

The current patent system contains provisions to filter out subject matter that is undesirable due to ethical reasons. The specific exclusions prevent the patenting of human beings, plants, and animals, and the biological processes for the generation of human beings, plants, and animals. The third recommendation is to retain the specific exclusions in the Act. In addition, Article 27(2) of the , which allows countries to exclude an invention from patentability if the exclusion is necessary to “protect ordre public or morality”, is endorsed by the ACIP. The test formulated by the ACIP is to preclude the patenting of inventions “the commercial exploitation of which would be wholly offensive to the ordinary reasonable and fully informed members of the Australian public.” The ACIP also suggested that the Commissioner of Patents to have “an explicit power to seek advice, from any person the Commissioner considers appropriate, to assist the Commissioner in applying the general patentability exclusion.”

The fourth recommendation is to strengthen the standard of proof for patentability. It is recommended that the Act should require the Commissioner to be satisfied on “the balance of probabilities” that the invention meets the patentability requirement. Currently, the applicant is given the “benefit of the doubt” about whether an invention is patentable.

The recommendations will provide some certainty and a uniform standard for the requirement of patentable subject matter. This is important because the patenting of genes, computer software, and business methods have raised considerable debate and concerns in the field. The Australian Government may now consider the recommendations and decide to accept, accept in part, or reject specific recommendations made in the report.

The post What Should and Should Not Be Patented? An Australian Recommendation appeared first on IPOsgoode.